Sociological Theories of Law

Mathieu Deflem
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This is a copy of a publication in Encyclopedia of Law and Society: American and Global Perspectives, edited by David S. Clark, pp. 1410-1413. Thousand Oaks, CA: Sage, 2007. 

Also available in PDF format.

Please cite as: Deflem, Mathieu. 2007. "Sociological Theories of Law." Pp. 1410-1413 in Encyclopedia of Law and Society: American and Global Perspectives, edited by David S. Clark. Thousand Oaks, CA: Sage Publications.

Among the social sciences, sociological theories stand out among the most developed analytical perspectives that contemplate the role of law in society. Not only is sociology unique in offering theoretical perspectives onthe place and transformation of the institution of law relative to the whole of society, it is also the case that sociologists have offered many of the important intellectual building blocks of other social theories of law. The two most central founders of sociology, Max Weber (1864-1920) and Émile Durkheim (1858-1917), developed elaborate theories of law without which no social theory of law today would be possible. In the further maturation of the sociological discipline, theoretical interest in the study of law waxed and waned. Consistent in the sociological study of law, however, has been a systematic focus on the societal characteristics of law based on general theoretical models.

Classical Sociology

The sociological classics contributed to the theoretical study of law by offering systematic accounts of the changing role of law in the rapidly changing societies at the dawn of the twentieth century. In France, Émile Durkheim contemplated the role of law in securing integration in a society that is highly industrialized and that is culturally marked by a high degree of individualism. Law was to Durkheim the measurable indicator of a society’s morality, which the sociologist analyzes in terms of its causes and functions. Specifically, Durkheim posited a theory of legal change from repressive law to restitutive law. Repressive law reflected the religious traditions of relatively small-scale mechanical societies, where any infraction of law, however small, was punished severely. By contrast, the large organic societies of modern times allow for greater individual variation in thought and action, leading law to seek to secure order as well as diversity and allow for restitution and reintegration, should legal norms be broken. Alongside this transformation of law, Durkheim theorized, professional associations would have to take up some of the integrative functions that once were secured by traditional systems of law.

The contributions to law of the German sociologist Max Weberremain among the most developed and systematic in sociology until this day. Even more clearly than Durkheim, Weber positioned the sociology of law in relation to other intellectual perspectives of law. Specifically, Weber defined the sociology of law as the external study of the empirical characteristics of law’s role in society. Differentiated from this perspective are the internal study of law, which is undertaken by legal professionals to maintain the consistency of the legal system, and moral perspectives of law, which seek to ground or criticize law based on a normative principle. Weber argued that the theoretical key to the transition from preindustrial to modern law was the specific form of the rationalization of law. According to Weber, modern law is formally rational, meaning that law is based on procedures requiring that it should apply equally and fairly to all. Besides being impartial, modern law is also codified (written down) and impersonal in its procedural reliance exclusively on the facts of the case.

Although sociological theories of law could benefit, perhaps more clearly than any other specialty area, from the pioneering work of the discipline’s founders, the sociology of law was relatively slow to progress during the first half of the twentieth century. To be sure, several scholars, especially in Europe, took up the challenge to develop theoretical perspectives in the sociological study of law. Eugen Ehrlich (1862-1922), Nicholas Timasheff (1886-1970), and Georges Gurvitch (1894-1965) were most notable among those who contributed to the theoretical elucidation of law from a sociological viewpoint. Yet, the works of these scholars have only recently been discussed and have not influenced much research or debate.

Contemporary Sociology

With the elaboration of modern sociology after the end of World War II, the study of law was initially not central to the discipline, although law nonetheless found a place in the major theoretical schools of the day. Best developed was the functionalist perspective of law in the work of Talcott Parsons (1902-1979). The leading sociological theorist in the postwar era, Parsons emphasized the role of law as an integrative mechanism of social control. The legal system was conceived as being in relative autonomy to society’s other specialized institutions: the polity, the economy, and the values system. In terms of law’s integrative function, the legal profession was of special interest to Parsons because of its role in mediating between the technical requisites of the legal system and the needs of everyday citizens to receive justice.

As some scholars criticized functionalist theorizing, different theories of law were introduced in sociology from the 1960s onward. Most distinct was the novel vision of law as a tool or instrument of power that, far from delivering justice to all, served only the interests of the economically or politically powerful. This instrumentalist perspective of law echoed the philosophy of Karl Marx (1818-1883), although Marx had mostly dismissed the study of law in favor of a concentration on society’s economic organization.

Neo-Marxist theories of law led the way to the development of other critical theories of law in the latter half of the twentieth century. Critical theories share a commitment to criticize the conditions of law and other social institutions beyond a mere analytical study, but they differ in the foundation and consequences of their respective critiques. Some critical theories hold on to Marxist premises on the centrality of the economy, whereas others broaden their focus to ponder the significance of race, gender, and other lines of social division besides class. The assumed plurality of such societal cleavages has led some sociologists to adopt a postmodern stance, abandoning the search for an overarching unifying theoretical vision in favor of a chaotic multiplicity of cleavages and fractions. In addition, while some critical theorists assert that radical transformation of society is required for social improvement, other proponents of critical theories of law are more reformist in their normative orientations.

The popularity of critical perspectives notwithstanding, the single most important theoretical development in contemporary sociology of law has come from the resolutely scientific approach of the American scholar Donald Black. Since the early 1970s and with increasing vigor since the 1990s, Black has developed a systematic theory of law that formulates propositions on the quantity and quality of law as functions of certain structural characteristics of society. Rejecting any normative and psychological presuppositions, Black’s theories of law are part of a broader project of pure sociology that seeks to order variation in all aspects of social reality without resorting to motives, ends, or other subjective states.

Similar to the breadth of Black’s theory, the German sociologist Niklas Luhmann (1927-1998), takes a comparable approach in modern sociology. Originally influenced by the theories of Parsons, Luhmann came to develop a novel systems-theoretical perspective of law, which argues that the legal system is characterized by autopoiesis or operational closure; in other words, the law functions independently of other social institutions based on the legal code, lawful versus unlawful. Morality and justice, most importantly, are in Luhmann’s eyes not constitutive of law.

Sociological theories of law are today more diverse than ever before. Particularly influential in recent times has been the cross-fertilization of sociological theories of law with theories from other social sciences and the humanities. Most distinct in this respect has been the popularity of the law and society movement, a perspective that abandons the theoretical grounding of the study of law in any specific discipline in favor of an interdisciplinary orientation that selectively draws from a plurality of intellectual traditions.

At the same time, however, theoretical developments in the sociology of law have occasionally also imported the works of other disciplinary orientations to further the sociological understanding of law. The seminal contributions of the French philosopher Michel Foucault (1926-1984), and the German social theorist Jürgen Habermas, stand out among the intellectual influences that sociologists of law have incorporated in fruitful ways in theory and research. Despite the popularity of the interdisciplinary law and society movement, the sociology of law today is better organized than ever in institutional and professional respects. One can thus expect sociological theories of law to continue to claim their place in the broader constellation of social-science theories of law.
See much more in my book Sociology of Law (available in PDF format!).

Further Readings
  • Black, Donald. (1976). The Behavior of Law. New York: Academic Press.
  • Deflem, Mathieu, ed. (1996). Habermas, Modernity, and Law. London: Sage.
  • Durkheim, Émile. (1984). The Division of Labor in Society. New York: The Free Press (orig. 1893).
  • Gurvitch, Georges. (2001). Sociology of Law. New Brunswick, NJ: Transaction (orig. 1947).
  • Timasheff, Nicholas S. (2002). An Introduction to the Sociology of Law. New Brunswick, NJ: Transaction (orig. 1939).
  • Weber, Max. (1954). On Law in Economy and Society, edited by Max Rheinstein. New York: Simon and Schuster (orig. 1922).

See also my related papers on law and social control.