Book review: Law, Society and Community: Socio-Legal Essays in Honour of Roger Cotterrell

Mathieu Deflem

This is a copy of a book review of Law, Society and Community: Socio-Legal Essays in Honour of Roger Cotterrell, edited by Richard Nobles and David Schiff (Farnham, Surrey: Ashgate, 2014), published in the The Cambridge Law Journal, 74(3):614-617, November 2015.

Please cite as: Deflem, Mathieu. 2015. Review of Law, Society and Community: Socio-Legal Essays in Honour of Roger Cotterrell, edited by Richard Nobles and David Schiff. The Cambridge Law Journal 74(3):614-617.

This physically impressive edited volume is assembled in honor of Roger Cotterrell on the occasion of his retirement as the Anniversary Professor of Legal Theory at Queen Mary University of London. As a Festschrift, the book is written by a collective of authors, producing 19 chapters, who were invited because Cotterrell was known to admire their work. This particular approach to gather the contributions in this book from a group of scholars who are on a first-name basis with one another allows me as reviewer to treat this volume as if written by one author or at least one collective of co-authors.

The chapters of this book are divided over three parts, centering on socio-legal themes, methodological and jurisprudential themes, and global and comparative legal themes, respectively. In Part I, a central intellectual ambition of Cotterrell is addressed by discussing the manner in which legal ideas need to be interpreted sociologically. This perspective is not only applied to a wide number of inter-related legal themes, but is also liberally oriented at discussing and incorporating, in some form or another, a great multitude of theoretical perspectives. The ultimate jurisprudential objective of this endeavor is to have legal theory adopt the insights of relevant social science. One suggested strategy is to have an action-oriented sociology of meaning be incorporated with the historical method that has been useful for the study of the history of ideas in order to defend the argument that the distinctly juridical meaning of law resides with the interpretive efforts from those who work within the law (lawyers and judges).

An alternative approach that is suggested to fulfill the stated objectives is to resort to images of the borders of states and other jurisdictionally confined territories. These borders can be imagined as lines that separate or as spaces that allow for exchange. Needless to say, the normative aspiration imbedded in this perspective leads to favor an open-borders model to show the possibility of an alternative to whichever legal arrangements that exist. Similarly normative and practical rather than empirical is the ambition to have the participants in legal processes be confronted with perspectives that could broaden their understanding of the possibilities and challenges of law. The reality of law is thereby understood to involve more and more different forms of law and governance in a complex constellation of legal pluralism, even though the conventional jurisprudence that trains the legal professional presents a unitary vision of law. The idea of pluralism is also at work in the opposition that is commonly perceived between traditional and modern forms of community and belonging. This opposition needs to be debunked, it is argued, by bringing out the role of imagined communities. Drawing on the theory of autopoiesis, furthermore, law and politics can be structurally coupled through the various cultures that are generated in communities, even though such a construct does not sit well with Cotterrell’s perspective of society as a moral entity. Likewise, Cotterrell’s perspective is challenged by means of a separation between legal science, one the one hand, and justice theories, on the other, to argue that legal practitioners have, in fact, little concern for normative perspectives of law.

Part II on methodological and jurisprudential themes begins with tackling the problem of integrating legal philosophy, doctrinal legal research, and sociology of law. A perspective of legal interactionism is suggested to interpret law appropriately. The force of law, by example, implies a vertical interaction between the ruler and the ruled. Likewise oriented at overcoming oppositions in theoretical perspectives is the idea to approach the world as a pluriverse. Therefore, a concept of alterity is introduced to show that law, rights, states, and related concepts do not exist in like manner across cultures around the globe. Also needed is a focus on complexity to reveal multiple forms of law and on interculturality to recognize the co-existence of multiple cultures, in which all humans are conceived as part of a common humanity.

Some empirical studies of the form and shape of law in particular societies are also included in this part of the book. One study involves fieldwork on the relevance of law for foreign companies that consider investments in the southern region of India. Showing the relevance of Cotterrell’s perspective situating law in relation to community, it is shown that law plays a role in establishing relations of trust that are needed to effectively make economic investment decisions. Another study examines the 2011 riots in the United Kingdom in the wake of a fatal police shooting in Tottenham. The central idea of community is revealed to exist in the media reporting that focused on the negative implications of the rioting. Drawing on interviews with legal professionals and social workers concerning the causes of the riots, the idea of community is argued to exist primarily as an ideal rather than a reality. A related study in this book concerns a darker side of the relation between law and community by focusing on legal alienation. This concept is broken down into the more specific constituent attributes of legal powerlessness, cynicism, and value isolation to examine the popular responses, especially as they were expressed on social media, to the 2012 killing of Trayvon Martin.

Rounding off Part II are two chapters that have a distinctly practical focus. Drawing on multiple classical theories of law, the proposal is formulated to conceive of and accordingly practice legislation as an art, rather than adopt a perspective of mere technique and expertise as it is presently often at work in national and international legislative bodies. Based on a discussion of the ideas concerning the politics of jurisprudence Cotterrell has advanced, a higher degree of practical applicability is proposed by introducing the notion that different forms of law each contain a self-description that can change and adapt in response to shifting societal conditions. These self-descriptions imply that some forms of legal theory can impact legal practice more than others.

Finally, in the third part of this volume, a variety of issues are taken up that address the global and comparative dimensions of law in society. The opening chapter reviews a wide range of theoretical traditions to discuss how the development of international courts can be rationalized and how their role in the global community can be articulated. A critical concern thereby is if and how the development of such courts also contributes to the formation of a global culture. Similar concerns are addressed at the informal level of legal pluralism on a world scale. This globally existing legal pluralism does not just entail a liberal acceptance of various legal norms, but also includes the idea of an acceptance and possible embrace by decision makers of the norms of other communities. Such connections can be established through legal transfers across cultures, the conditions for which have become more favorable with the increasing trend towards greater globalization.

Comparative issues of law are addressed in the final three chapters, which are concerned with rights. A first analysis centers on the notion of civility in American public life and its relation to resistance against injustice as a form of incivility. The civil-rights struggle in the United States in the 1960s, which occasionally involved rioting and other illegal behavior, shows how an adherence to civility can be problematic when it leads to support for conditions of injustice. Such issues show how law and community connect as American ideas of law, typically focused on the rights guaranteed in the U.S. Constitution, also reflect on the essence of what it means to be an American. What is striking in the American context is the idea of originalism that creates the myth of a peculiar national identity and history, whereby Americans define themselves as an exceptional nation. The final chapter of this book addresses the concept of rights on the international level by discussing the role human rights have played in the promotion of the rule of law across nations. This development especially occurred after the fall of Communism, when conditions became favorable to an expansion of the political and legal ideas of Western democracies. How these ideas are adopted in various national contexts relates intimately to the characteristics of their respective communities and cultures.

As a Festschrift, this volume is successful in having drawn together friends of Cotterrell to engage with some of his many published ideas. Substantively, however, the volume’s chapters may have a harder time finding an audience as the ideas presented here are numerous and at times rather incoherent. Strikingly, indeed, most authors in this book mimic Cotterrell’s favored strategy of drawing together manifold theoretical traditions from numerous disciplines and academic fields related to the study of law, not allowing for even the most insubstantial gap, to create a soup of ideas with little if any programmatic direction. A more modest and directed approach, one that draws on select traditions within some specified disciplinary setting would have given the contributions in this volume a greater value for those of us in need of creativity for pedagogical and research purposes alike. Instead, the collective of co-authors in this book, like the practitioner of legal theory they seek to honor, treat the study of law from within specific disciplines, especially the sociology of law, always in conjunction with social theory, legal theory, socio-legal theory and the likes only to speak of the real or imagined connections among these disciplines and fields of study. In other words, the lack of a clear conceptual logic and disciplinary foundation that is inherent to Cotterrell’s work is also reflected in many of the writings in this book.

The reader may observe that the perspective of this review comes from a sociologist of law who is a sociologist and therefore does not share the peculiar notion of a non-sociological sociology of law which Cotterrell has sought to popularize as a branch of jurisprudence and/or legal studies. It remains puzzling, on purely logical grounds alone, why no better phrased label could be developed in terms of a sociologically grounded legal theory, possibly as a sociological jurisprudence (writ small should associations with the work of Roscoe Pound be avoided) or as sociological legal studies (similar to critical and empirical legal studies). In any case, as a result of this peculiar perspective, the so-called anarchic heterogeneity that Cotterrell is fond of observing in the socio-legal community, in fact, betrays a refusal to draw disciplinary boundaries, which especially in contemporary times remains anything but a triviality.

As a result, the chapters in this book, like Cotterrell’s own writings, are bursting with a wide range of themes and theories that are collected in rather obscure ways without much attention to a clear exposition of said perspectives and the theoretical problems that are associated with merging diverse strands of thinking. Betraying an inability to make hard choices on the relative suitability of multiple theories, the authors in this book too often resort to the cop-out of eclecticism and fanciful name-dropping. Fond of interpreting rather than developing or applying theories, the authors of this book perhaps sought to constitute a pluralist multiverse. But sociologically one must observe that this pluralism bears little fruit, to wit the wide diversity of perspectives suggested in this volume and the relative lack to successfully interpret legal ideas sociologically. The empirically oriented chapters are a refreshing exception to this critique, not primarily because they are empirical but because they show the value of theoretically grounded analysis of various aspects of law in concrete socio-historical settings. These admirable efforts thereby also show that only a veritable disciplinary perspective —whether it is rooted in sociology, psychology, anthropology or any other behavioral and social science— can adequately analyze relevant dimensions of law in society.