JOURNAL OF LAW AND SOCIETY VOLUME 36, NUMBER 4, DECEMBER 2009 ISSN: 0263-323X, pp.
Spectres of Transnationalism: Changing Terrains of Sociology of Law
The growth of `legal transnationalism' ± that is, the reach of law across nation-state borders and the impact of external political and legal pressures on nation-state law ± undermines the main foundations of sociology of law. Modern sociology of law has assumed an `instrumentalist' view of law as an agency of the modern directive state, but now it has to adjust to the state's increasingly complex regulatory conditions. The kind of convergence theory that underpins analysis of much legal transnationalism is inadequate for socio-legal theory, and old ideas of `law' and `society' as the foci of sociology of law are no longer appropriate. Socio-legal theory should treat law as a continuum of unstable, competing authority claims. Instead of taking `society' as its reference point, it should conceptualize the contrasting types of regulatory needs of the networks of community (often not confined by nation-state boundaries) that legal transnationalism addresses. INTRODUCTION This paper's focus is on legal transnationalism. I take that term here to cover two kinds of familiar phenomena. The first consists of emerging or newly expanded regulatory regimes with supranational scope or ambition: for example, international human rights, transnational regulation of the internet and of intellectual property, international criminal justice, international * School of Law, Queen Mary, University of London, Mile End Road, London E1 4NS, England R.B.M.Cotterrell@qmul.ac.uk
This the revised and expanded text of a plenary lecture given at the conference to celebrate the twentieth anniversary of the International Institute for the Sociology of Law, Ä ati, Gipuzkoa, Spain, 7±10 July 2009. I am grateful to Reza Banakar, Volkmar On Gessner, Pierre Guibentif, Terence Halliday, Carlos Lista, Vittorio Olgiati, Sol Picciotto, Boaventura de Sousa Santos, and anonymous reviewers for comments.
ß 2009 The Author. Journal Compilation ß 2009 Cardiff University Law School. Published by Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
financial and trade law, international commercial arbitration and modern lex mercatoria, and WTO law. Increasingly, laws (and forms of regulation that some observers call law and some do not) reach across state boundaries ± but often not in the manner of traditional international law linking states as subjects. Sometimes transnational law bypasses state authorities, or uses them as conduits for regulation created and interpreted primarily by agencies other than state authorities. Sometimes it is created `unofficially' in professional practice or as collective self-regulation. Then, more `official' law has to decide how to deal with it. Often transnational law is intended to affect individuals, organizations or groups directly. So `transnational' refers to a reaching across nation-state borders. The second, no less important, aspect of legal transnationalism reflected here is the influence exerted directly on the regulatory policies and practices of nation states by economic, cultural, and political pressures taking shape outside their borders, and to that extent beyond their control. Legal transnationalism haunts sociology of law or socio-legal studies (the terms will be used interchangeably here) in a somewhat spectral way. It is something seen but not seen; real but not fully real as a presence; mysterious, hard to pin down, and certainly hard to view clearly and as a whole. Much research is now being done on transnational regulatory processes, institutions and aspirations, but it is difficult to see how these research developments affect outlooks in sociology of law in general.1 Like a ghost, transnationalism flits around socio-legal studies, revealing aspects of itself in research topics and findings, but rarely allowing a view of something larger that might be forming, or might need to form: perhaps a new general view of law, or a new conception of the socio-legal field to reflect the impact of transnationalism. This paper does not focus on particular fields of transnational regulation. Its concern is with the cumulative effect of their development, and the social forces they represent, on the foundations on which modern sociology of law has been constructed. Do these foundations need excavating and re-laying in the light of legal transnationalism? This paper's argument is that, in important respects, they do. The theoretical implications of legal transnationalism unsettle the basis of `law and society' research ± indeed they challenge its most basic concepts. Specifically, the meaning of both `law' and `society' in the socio-legal field needs to be re-examined radically in the face of legal transnationalism. The result, this paper claims, should be to alter the outlook of socio-legal studies in general.
1 For a valuable outline of relevant issues, see V. Gessner, `Global Approaches in the Sociology of Law: Problems and Challenges' (1995) 22 J. of Law and Society 85.
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4 E. Fundamental Principles of the Sociology of Law. at 701. it has general effects in society of such significance that this law cannot safely be ignored in social practice. `Signalling Conformity: Changing Norms in Japan and China' (2006) 27 Michigan J. 5 A. In the Westphalian conception. Second. and enforcer of law). Nelken. of International Law 933. and that involves negotiating a great diversity of regulatory regimes. as an object of study distinct from the social as an object of study. and sources.
2 For a thoughtful recent attempt to transcend legal philosophy's typical views of the relations of law and state. marking off the experience.LEGAL PLURALISM AS CONCEPTUAL RESOURCE Many lawyers now confront the complexities of transnational legal practice. influences. not pluralistic. Buchanan.2 although recent writing in international law and social theory has made important contributions. Moll (2002). Journal Compilation ß 2009 Cardiff University Law School
. the subversive beginnings of modern socio-legal critique ± most influentially expressed in Eugen Ehrlich's work4 ± occurred (just before the First World War) at perhaps the exact historical moment of greatest acceptance of the Westphalian nation-state system and its correlative view of state-centred legal systems. Each of these views of law was challenged in profound ways by the pioneer theories of legal sociologists early in the twentieth century. Third. or as a science distinct from empirical social science. states were seen as `more or less economically self-sufficient units' and `as politically homogeneous . W. tr. Yet the legal theories that most lawyers presume (and most law students are taught) ± if any need is felt for a broad view of the legal terrain ± still convey images of distinct. and assumptions of general legal effectiveness. reasoning or understanding of legal `insiders' (usually lawyers) from outsiders. . unified legal systems. Ubiquitous Law: Legal Theory and the Space for Legal Pluralism (2009). identifiable basic norms or rules of recognition. The dominant forms of legal philosophy that influence juristic theory have in the main not noticed the theoretical challenges of legal transnationalism. Fourth. Melissaris. reliable tests of legal validity. in form (with international law as an extension of the reach of nation-state legal authority through treaties and the recognition of shared customs).3 Western lawyers' typical modern view of law in general is not difficult to characterize. 3 See the wide-ranging references and discussion in D. it assumes that state law makes a practical difference. And fifth. Ehrlich.
ß 2009 The Author. `Rawls's Law of Peoples: Rules for a Vanished Westphalian World' (2000) 110 Ethics 697. without internal political differentiation'. L. it almost always assumes settled internal/external distinctions that define the legal field. stable legal hierarchies and lines of legal authority. authorizer. And. . interpreter. First. adjudicator. see E. it makes the state and its agencies central (as creator. it sees law as monistic. it assumes law's autonomy in one or more of several senses: as a normative order distinct from others such as those of morality or custom. significantly.5 But.
Teubner. It developed a tradition of legal pluralist theory6 that treated as normal an unstable overlapping of different regulatory systems (including those of state law) in the same social arena. Legal Practice and Cultural Diversity (2009). of Global Legal Studies 25. Shah (eds. M. M. Ferrari. `Administrative Decision-Making and the Concept of Law' in Postinterventionistisches Recht. municipal or international. F. and of centralized legal authority. see G. eds. 1155. H. `Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law' (2004) 25 Michigan J. Legal Pluralism in Conflict: Coping with Cultural Diversity in Law (2005).from the beginning. 305. the status of some of which as `law' would be controversial or typically denied by juristic commentators. Maussen. cit. Journal Compilation ß 2009 Cardiff University Law School
. 7 Within a huge literature see.).). These include: (i) culturally-based conflicts of legal understandings and aspirations between population groups inside increasingly multicultural national political societies7 (intra-state legal pluralism). and P. also.P. For an interesting recent study of legal pluralism within a single state judiciary. embracing a wide range of regulation. `hard' or `soft' law. `Governing Economic Globalization: Global Legal Pluralism and European Law' (1999) 5 European Law J. for example. 6. Hoekema. I use the term here in Snyder's sense. A. `Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law' (2003) 10 Indiana J. Zahle (eds. sociology of law emphasized legal diversity.. Dalberg-Larsen. Voight (1990) 177±94. ed. Graver. pp. `Judicial Activism in Perilous Times: The Turkish Case' (2009) 43 Law and Society Rev.S. A. F. A. P. for example.
ß 2009 The Author. A legal pluralist outlook is needed to consider socio-legal phenomena that usually escape legal philosophers' gaze. 334.G. A. `Global Legal Pluralism' (2007) 80 Southern California Law Rev. Legal Polycentricity: Consequences of Pluralism in Law (1995). Peterson and H. op. The term's meaning varies in the literature and is not always precise. 9 See. Shah. See. O. Tezcu È r. Ballard. of International Law 999. Likosky (2002) 65±97. 103±14. `Governing Globalisation' in Transnational Legal Processes: Globalisation and Power Disparities. external regulation or self-regulation) ± what has been called `global legal pluralism'9 but might better be labelled transnational legal
6 See. What is to count as a state agency in some societies may be unclear. M. R. Snyder. P. as well as their chances of regulatory effectiveness. The Unity of Law: An Illusion? On Legal Pluralism in Theory and Practice (2000). Fischer-Lescano and G.G. 8 H. Go È rlitz and R. n.J. Social scientific legal pluralism is the main theoretical tradition that sociology of law possesses to conceptualize legal transnationalism. Grillo. also.M. J. R. DalbergLarsen. (iii) a vast range of transnational legal understandings and aspirations at many regulatory `levels' and taking account of many different kinds of regulatory forms (for example. Rohe. for example. Muslim Minorities and the Law in Europe: Chances and Challenges (2007). Perez. See. Snyder. Berman. (ii) conflicting or inconsistent legal understandings within state agencies and between them in the same political society8 (state legal pluralism). and with such an issue come further obscurities or conflicts as to where the loci of practical legal interpretation lie. it questioned juristic ideas of legal unity and system. competing for or negotiating their authority in relation to each other.
`Human Rights in an Era of Neoliberal Globalization: The Alien Tort Claims Act and Grassroots Mobilization in Doe v. 11 For diverse illustrations of and arguments around such intersections of authority. Goldberger. 819.P.-M. Sznaider. Journal Compilation ß 2009 Cardiff University Law School
. Instead it signals that this authority is unsettled in many social fields. 271.±U. is one in which legal regimes with overlapping or unclear jurisdictions have indefinite relations with each other. Cotterrell. extradition practices. Snidal. a matter of conflict to be resolved ± perhaps only provisionally and temporarily for particular purposes in particular contexts ± by negotiation. of Global Legal Studies 297. as sources of regulatory authority compete. 12 K. ```New Governance'' in European Corporate Law Regulation as Transnational Legal Pluralism' (2009) 15 European Law J.S. and the transnational use of human rights rhetoric.O. Keohane. Slaughter. Extradition Treaty?' (2007) 29 Cardozo Law Rev.
ß 2009 The Author. R. It should be seen instead as supporting the radical claims that. A legal pluralist approach rejects typical legal positivist assumptions that the authority of regulation as legal can be determined from distinct and stable social sources. power or influence. Unocal' (2009) 43 Law and Society Rev. Holzmeyer. Some sources of regulation may seem more `official' than others. forms of social regulation form a continuum. `LIBERTAD v.13 And this future is not an aberration soon to be corrected. A.11 Legal pluralist theory should not be seen (as it sometimes is) as part of a philosophical debate about the definition of law (what forms of regulation are to be recognized as law). Abbott. as regards their practical authority. `It's Just Not Cricket: Is the Principle of Reciprocity being Honored in the U.W. A. The emerging new pluralistic world of law.pluralism. and legal authority is relative and frequently disputed. and D. of Sociology 657. Moravcsik. Liberalism: An Analysis of the Helms-Burton Act from within Liberal International Relations Theory' (1997) 4 Indiana J. see D. created by legal transnationalism. `The Concept of Legalization' (2000) 54 International Organization 401. 246. with normal juristic
10 P. R. D. but what counts as official becomes a matter of controversy and varies with viewpoint. The legal future is one of increasing displacement of traditional state-centred. and that the legal character (however assessed) of regulation is often a matter of degree12 and (not necessarily resolvable) debate.10 and (iv) intersections of authority between state legal systems that are inadequately captured in terms of juristic concepts of sovereignty and reflect differential power relations between states (interstate legal pluralism). Fidler.K. These intersections of authority may be expressed directly or indirectly in. Zumbansen. C. Levy and N. J. for example. 13 R. international taxation and foreign investment policies. `Transnational Communities and the Concept of Law' (2008) 21 Ratio Juris 1. `Sovereignty Transformed: A Sociology of Human Rights' (2006) 57 Brit. positivist legal understandings. the practical extraterritorial effects of the laws of some nation states inside others. that lines between the `legal' and `non-legal' depend on perspective.
82. LAW. cit. Society under Siege (2002) 233. n. op. 16 Compare S. 15 J. J. and that certain orientations of the field. p. Paulus. in its own terms. The most disturbing spectre haunting legal sociology is the possibility that. `Regulatory Conversations' (2002) 29 J. of International Law 1047.16 in the face of international and transnational pressures. 18 Strange. `Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes' (2008) 2 Regulation and Governance 137. Bauman. see A. intersecting `legitimacy communities'. STATE..L.15 The authority of centralized state agencies. Ultimately it is not helpful to speak generally about the `demise' or `collapse' of the nation state17 or about a `shrinking' domain of state authority. In a bewildering transnational regulatory landscape. Its destiny is to be not a marginal social scientific enterprise but one that is central to social inquiry: exploring the conditions for. 16. and for critique. and traditional modes of interpreting and developing state law. legal sociology is called upon to provide intellectual leadership in a way that gives it huge responsibilities. That involves not just producing illuminating empirical studies of particular legal phenomena but also plausibly characterizing the broadest directions of socio-legal development. `Commentary: The Legitimacy of International Law and the Role of the State' (2004) 25 Michigan J. despite the great wealth of its empirical research. op. Strange. of Law and Society 163..
ß 2009 The Author. cit. will impede this renewal.service resumed and stable lines of legal authority re-established. But in Western contexts too it is becoming necessary to recognize that relative authority is to be determined in what Julia Black has called `regulatory conversations' and by making accountability claims in diverse. The Retreat of the State: The Diffusion of Power in the World Economy (1996). will be a part of a very diverse spectrum of legal experience. Black. 17 Z. it will not adequately ± or sufficiently quickly ± renew itself theoretically in the face of legal transnationalism. n. Journal Compilation ß 2009 Cardiff University Law School
.18 nor to claim that
14 For strong claims about the permanent legal fragmentation of regulatory regimes. the changing regulatory terrain. regulation in a changing world. The most frustrating part of the vast literature on globalization and contemporary international relations may be the part that asks in entirely abstract terms whether the state is `in retreat'. the test of legal sociology's success is not whether it influences legal practice. Black. What orientations are these? They relate primarily to dominant views about the relation of law and state. It is whether it can explain and interpret. 9. set early in its development and still colouring its dominant outlooks. and guiding the development of.14 Legal anthropologists have always assumed the normality of legal pluralism in non-Western contexts. AND TRANSNATIONALISM Certainly. see Fischer-Lescano and Teubner.
tr. Beck. values. 22 R. (vii) The result can be a degree of withdrawal of support from the state and from law as a communal resource. `Market Globalization and the Future Policies of the Industrial States' in Globalization and Governance. it derives from many sources. Cross (2005) 158 (emphasis in original). P. including the actors or groups themselves. often acting as a conduit for international capital and seeking to harness it to national goals. `Legal Imperialism: Empire's Invisible Hand?' in Empire's New Clothes: Reading Hardt and Negri. (ii) Limited fiscal resources may sometimes mean that key economic sectors are supported by the state as a priority at the expense of other legal and social services (for example. G. Prakash and J. welfare). Through threats to do this. Buchanan and S. at 81.22 Such blanket claims are commonplace but states are very diverse in nature and their regulatory capacities and energies may vary dramatically depending on what regulatory functions are being considered. its total or partial relocation abroad may be possible. Here are some suggestions: (i) States generally seek to support key businesses seen as essential to the national economy. that this is `more than ever a world of nation-states'. eds. its power to influence state policy and law may be enhanced. criminal justice.20 that the state is `indispensable and irreplaceable' for global business. `A Manifesto for Global Capitalism?' in Debating Empire. (v) Much collective regulation operating among economic actors or social groups with strong transnational ties or allegiances is not visible on the state's radar and not enshrined or recognized in state law. Dean (2004) 73±93. A. populations may become disillusioned with the state's ability to protect their interests. (vi) In so far as states focus their law and policy on dealing with transnational pressures and opportunities at the expense of other areas of regulatory responsibility.21 or that `the market depends on modern sovereignty'. Balakrishnan (2003) 61±82. Meiksins Wood. However.
19 C.A. American Business Abroad: Six Lectures on Direct Investment (1969) 207. K. Kindleberger. and distinctive allegiances. traditions. 21 U. as long as these recognize differences between kinds of states and kinds of policies.A. (iii) Since `big business' is increasingly international. Journal Compilation ß 2009 Cardiff University Law School
ß 2009 The Author. (iv) Some states have more power than others to aid their own key economic actors and can use this power (sometimes through political or legal pressures) against weaker states.`the state is about over as an economic unit'19 or. Pahuja. Hart (1999) 213. some general hypotheses about states subject to transnational influences might be drawn from the literature.P. at 69. 20 E. All this is a matter for empirical study.T. Power in the Global Age: A New Global Political Economy. eds. quoted in R. to that end they may deliberately create conditions that favour it. and a more `privatized' use of law. Passavant and J. conversely. ed. Kudrle.
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. LEGAL INSTRUMENTALISM AS SOCIO-LEGAL THEORY In the mid-twentieth century.. This research gained its major funding. 3. or emotional allegiances). In the 1960s.24 It is certainly true that modern socio-legal studies began by assuming the state as the stable source and guarantee of law. and values. thus making the nature of law in general unproblematic. for example. interpreting. 25 L. And it disrupts the idea that a uniform relation to the state adequately defines modern law's nature and functions in practical terms. 24 Bauman. In such circumstances. that idea. modern empirical socio-legal research began by treating law and state as inseparably linked.sometimes in claims against state agencies seen as `alien' to their concerns. 263. law and the social sciences competed in the United States in claiming expertise and funding to aid the state in addressing `tumultuous issues of racial discrimination. n. But this kind of strategy risks a degree of isolation from transnational networks.
ß 2009 The Author. Mather.23 It disrupts ideas about law's intellectual unity and hierarchy of authority. in the face of transnational pressures. Cotterrell. Yet. and institutional legitimacy primarily from assumptions about the state's autonomous regulatory power. pp. and variable. (viii) States may seek to avoid such consequences by addressing local `cultural' demands (relating. 12. intellectual urgency. I shall argue. and as the sovereign political source of law's authority. with law as the state's key regulatory instrument. ambiguous. is neither right nor wrong. state agencies themselves can be demoralized as regards their public functions. See R. has informed much of modern empirical legal sociology: its undermining poses challenges for sociology of law's self-understanding and identity as an intellectual field. poverty and crime'. indeterminate legal pluralism. confronting legal philosophy's models of legal system with an untidy. to material interests. 17.25 a new empirical
23 I have tried to show how this complexity is reflected (but also disguised) in certain powerful ideologies of law's functions. and from the idea that the symbiotic relationship of law and state was broadly settled. traditions. cit. op. These possible scenarios are mentioned here schematically only to illustrate a more general idea: that to see the state as originating. legal transnationalism makes the state's relation to law complex. and enforcing law. `Reflections on the Reach of Law (and Society) Post 9/11: An American Superhero?' (2003) 37 Law and Society Rev. Zygmunt Bauman writes strikingly of sociology generally as having aimed to be the state's `intelligence unit' and having had a tendency to imagine society `after the pattern of an administrative office'. Law's Community: Legal Theory in Sociological Perspective (1995) ch. 27. at 275. beliefs.
rather than a legal pluralist view raising deeper issues about law's nature. or to inform the state about popular consciousness of legal matters and the contexts and consequences of state regulation. a view of law's functions that was so useful and entrenched that it could seem unnecessary to ask deeper questions about law's nature. Journal Compilation ß 2009 Cardiff University Law School
. F. Garth and J. The focus could be. see. Sarat and S. as noted above. the efficacy of law. almost a part of the air we breathe'. They did not need to study law's effectiveness as an instrument of state policy. state-focused views since the rapid development of empirical socio-legal research from the mid-twentieth century. 409. nor did they need to support its use as such an instrument. argue that the state-policy focus of socio-legal research reflects a selective view of American legal realist theory. at much the same time.28
26 B. more diffuse ideas of `legal instrumentalism'. R. early in the twentieth century. on how the regulated (citizens. R. 20). overwhelmingly. law's implementive machinery. Yet. Silbey. Such an orientation is not just linked to funding opportunities and aspirations towards practical usefulness. and facilitator of law.26 In several European countries.research field of `law and society' was promoted for this purpose. Legal pluralist thought has continued to be an important strand in socio-legal theory but it has been overshadowed by monistic. and its limits' (p.27 The result was that modern empirical sociology of law began with an at least implicit theory of law as primarily a technical instrument of the modern directive state. social groups. Tamanaha. Certainly. corporations and their advisers) could relate effectively to state-controlled regulation. Treves and J. Instrumentalism and American Legal Theory (1982) describing a tradition of `pragmatic instrumentalism' in American legal theory. and kinds of regulatory power. a view that firmly distinguishes technical policy implementation (through law) from the practice of politics. It also harmonizes easily with vaguer. Brian Tamanaha sees an `instrumental view of law ± the idea that law is a means to an end' as one that is `taken for granted in the United States. which treats `legal rules and other forms of law' as `most essentially tools devised to serve practical ends' and focuses on `the goals law may serve. Norms and Actions: National Reports on Sociology of Law (1968). Sterling. at 104±11.). sociology of law was institutionally supported to aid the evolution of the welfare state.S. Glastra van Loon (eds. Developing Sociology of Law: A World-Wide Documentary Enquiry (1990). A. Law as a Means to an End: Threat to the Rule of Law (2006) 1.).
ß 2009 The Author. the kinds of means-ends relationships in the law. sources of authority. legal pluralism in sociology of law had been a means of attacking the regulatory hubris of Westphalian states ± demanding that law be thought of as something whose destiny might be separable from that of the state. 28 B. 27 V. Summers. for example. enforcer. socio-legal scholars were not restricted in their research by thinking of law in this way. Ferrari (ed. `The Pull of the Policy Audience' (1988) 10 Law and Policy 97. also. Yet. the variety of legal tasks that officials must fulfil to translate law into practice. `From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State' (1998) 32 Law and Society Rev.Z. empirical sociology of law adopted a view of the state as sole author.
be a worthy candidate. Corporate. 30 G. in Tamanaha's view.30 With such an agenda. G. the secure) as opposed to projects (the future. `Juridification ± Concepts. The Hollow Hope: Can Courts Bring About Social Change? (1991). even (perhaps increasingly as social activism has been replaced by regulatory conservatism) declaring their futility or misguided nature ± as `hollow hopes' 29 or pernicious `juridification'. other kinds of questions are likely to be marginalized: for example. but usually reacting to them. about law's relation to traditions (the past. Certainly it provides a radical
ß 2009 The Author. why would anyone want it not to be? Mid-twentieth century empirical legal sociology. the planned). Teubner. corporations or social groups. alongside the expanding institutionalization of law and society research. Antitrust and Social Welfare Law. the innovatory. ed. seemingly irrational.But this is far from being just an American phenomenon. gave the idea of legal instrumentalism a much sharper focus. and which eventually influenced legal and social science professionals. detailing popular `too-much-law' critiques which developed in the United States from the 1970s. Legal instrumentalism is surely the implicit legal theory of much empirical socio-legal research. If there is a widely accepted theoretical `other' of state-centred legal instrumentalism (that is. Tamanaha claims that the American `law and society' movement powerfully reflected and contributed to the spread of this instrumental view that treats law as a resource of power available to serve any interests that can harness it. for example. I see it primarily as indicating (controversially) how to do social analysis and what is to be expected from this enterprise. assuming a particular view of the state and its relation to law. it could claim to show what kind of instrument law is and the conditions and effects of using it. Teubner (1987) 3±48. also. a totally different way of thinking about law in general) in modern sociology of law. What does it mean to say law is a means to an end? Is this just to say law is expected to be useful? If so. Rosenberg. But the concept of legal instrumentalism is nebulous. Limits. diffuse. ultimately threatens to displace from legal thought and practice all ideas of a `common good' independent of special interests. Legal instrumentalism. 285. it has yet to be identified. and hard to conceptualize. Without it the vast research literature cannot be theoretically mapped in any coherent way. See. about ultimate values which law might serve. Galanter. `The Turn Against Law: The Recoil Against Expanding Accountability' (2002) 81 Texas Law Rev.N.31 Hints of what it might be are found in studies of
29 G. not necessarily in support of aims to which law is directed. Much empirical socio-legal research up to the present has been influenced by this orientation. or about law's relevance to emotional attachments and emotional rejections that are sometimes volatile. 31 Niklas Luhmann's autopoiesis theory would. In so far as this research asked how to make law effective for chosen governmental aims or (harnessing its state-derived coercive power) to serve the aims of citizens. for some scholars. the familiar. M. Aspects. Solutions' in Juridification of Social Spheres: A Comparative Analysis in the Areas of Labor. Journal Compilation ß 2009 Cardiff University Law School
Toward a New Legal Common Sense: Law. Yet ultimately. Luhmann. and of the `private legal systems' of organizations and communities. Ziegert (2004) ch.33 David Trubek. efforts have been made to lay foundations for a genuinely comparative sociology of law. de Sousa Santos. 9. deeply respectful of cultural
alternative to traditional instrumentalist thinking in sociology of law. argued passionately that the LSA should adopt an increasingly international orientation. 25.) ch. 32 B. cit. White and Blue'' Ceiling: Toward a New International Role for the Law and Society Association' (2003) 37 Law and Society Rev. 33 Mather.legal transnationalism. 10.34 As regards the research field itself. For critique. n. The sense that socio-legal studies are somehow still trapped inside nation-state jurisdictions ± separate political societies ± has been addressed by scholars in various ways. advocated collaboration between organizations to build a `global socio-legal network'.
ß 2009 The Author. 2nd edn. The `law' side of `law and society' is in flux. that is. following her lead. K. `Cracking the ``Red. however. Globalization. Journal Compilation ß 2009 Cardiff University Law School
. CONVERGENCE THINKING AND THE SOCIAL So too. tr. Trubek. a normative network of `interlegality'. But it might be said that in sociology of law as a whole we do not know what law is. by its nature. yet recognize that the legacy of the Westphalian state system still powerfully colours most legal experience. legal consciousness. autopoiesis theory refuses to explain theoretically how to connect law and the social. or to any single source of authority or coercive power. and Emancipation (2002. Living Law: Studies in Legal and Social Theory (2008) ch. though it gives sophisticated (if ultimately dogmatic) warnings as to how not to undertake such projects: see N. How could law appear differently ± not tied to the state? Certainly it would be much less definite than it has often been assumed to be: a kind of regulatory spectrum. we do not have a general theory of the nature of law considered apart from the state. see R. It is necessary to be able to make sense of this overall pattern in socio-legal theory ± to map and conceptualize it to guide and integrate research ± but without imagining that the pattern's shifting shape can be captured in any definitive way. 295. 34 D. in a presidential address to the Law and Society Association in 2002. legal pluralism. Lynn Mather. Useful practical criteria of the legal will be ones that do not simply lead back to the state. or legal values. is the `society' side.32 an inchoate `global legal pluralism' in which state regulation plays a major part but in an overall pattern of regulatory relations that remains indeterminate. at 302±3. Cotterrell. op.. though we know how something conventionally called law `works' or does not `work' in an immense range of settings. or to locate law's place in social networks of community (the enduring central projects of legal sociology).M. Law as a Social System. 8.
Delanty and C. for example. Yet not everyone is convinced that a radical rethinking of the legal or the social is needed. Globalization and the Harmonization of Law (1999) 19. in the perspective of legal transnationalism. Friedman. 3. as with certain extra-territorial applications of law or extradition practices. that they cannot assume (as dominant functional perspectives often do) that a social or economic problem addressed by law in one society is likely to be much the same problem in others.differences but seeking to speak across them ± breaking out of the research arena of distinct national societies. diverse networks of social relations of community. Nelken (ed. Rumford. others remaining indefinite or fluctuating in reach. Comparing Legal Cultures (1997). of Social Theory 471.M. È ru 36 See. unstable and indefinite. An illustration of this is convergence thinking in both comparative legal studies and sociology of law. Comparative Law: A Handbook (2007). cit. Likosky (2002) 23±40. in some ways. The nature of the social that this regulation addresses is an issue. even a `global legal culture'. ed.). the European Union has provided a superb laboratory for exploring not only aspects of transnational regulation but the sociological character of the `Europe' that constitutes their social setting. some embracing only certain aspects of the life of national political societies. G. 38 J. 39 L. affecting certain groups within these.35 Links of sociology of law with comparative legal studies have been strengthened: comparative lawyers increasingly recognize that they need new resources to envisage the social regulated by law. Friedman. the social ± the `society' to which law relates ± varies in character and can be. `Is there a Modern Legal Culture?' (1994) 7 Ratio Juris 117. Journal Compilation ß 2009 Cardiff University Law School
. Adapting Legal Cultures (2002). It is better seen as numerous. some being those of national political societies. n.).37 The social indicated by legal transnationalism no longer equates with political societies of nation states. G.39 a legal lingua franca. A simple and familiar (but inadequate) response to the need for legal perspectives beyond the nation state is often merely to project existing understandings of `law' and `society' on to a larger canvas without changing them. others not. 37 See. the incidence or effectiveness of which may be affected by power relations between states.M..40
35 D. E. One important study notes a convergence of `the municipal legal systems of states that are highly integrated into transnational practices'. 40 L.). Rethinking Europe: Social Theory and the Implications of Europeanization (2005). `One World: Notes on the Emerging Legal Order' in Transnational Legal Processes: Globalisation and Power Disparities. Much effort towards harmonization of European private law is based on it. others stretching across those boundaries. O È cu È and D. Nelken and J.
ß 2009 The Author. And see the rich discussion of issues in Nelken. Feest (eds.38 Some legal sociological writings glimpse an emerging uniform `modern legal culture'. M. For example. not take it for granted. Nelken (eds. `Conceptions of Europe: A Review of Recent Trends' (2003) 6 European J. Weiner. Delanty. D. for example. some coterminous with the boundaries of national political societies.36 Studies of transnational regulation inevitably presume diverse regulated populations. So. op.
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. can be treated as a unity. but it is often the (perhaps unconscious) projection of national interests or parochial perceptions on a global canvas. one-size-fits-all approach'44 can operate. 144. cit. D. ed. democracy. revised and expanded as F. McDougal. science-based civilization' supporting a `perception of global interdependence and community' and moving towards `an increasingly shared vision' of human dignity for all mankind. dignity) is how `they' do too ± the familiar language translator's problem of `false friends'. Fukuyama. `The End of History?' (1989) 16 (Summer) The National Interest 3. p. freedom. to the extent that legal convergence has been achieved. 270. a `homogenization of all perspectives . will do. Francis Fukuyama's announcement of the imminent `end of history' with the triumph of liberal democracy. . Gessner (op. but here transposed into socio-legal thought. saw himself as `in step with ideal values of the American tradition'. Lasswell on Political Sociology. . 42 F. Lasswell. the rule of law. In both comparative legal studies and sociology of law. 90±91. which is said to provide a `global frame of reference' for sociology of law. 1. Science and Policy (1997) 143. a `global community process' already in existence. n. `The World Revolution of Our Time' in Harold D. Fukuyama. 93) sees a `developing global legal culture' and links this with the idea of `world society' as a complex system. as expressed in the United States Declaration of Independence.42 Convergence talk sometimes expresses a hope for hard-won democratic transnational consensus. inevitably.45 But `culture' is actually a great diversity of networks of social relations based on strongly contrasting kinds of bonds: those of convergent projects.41 The grandest convergence claim of all. 44 Mather. 25. harmonized (or unified) law can be seen as extending familiar forms of law to a larger jurisdiction.In the 1970s.
ß 2009 The Author. cit. was made in the very year (1989) the International Institute for the Sociology of Law was founded.43 In convergence theories there is always a danger of assuming that the way some societies see things must be the way others do or. op. It suggests that there is still a single unified social (even if not restricted to a particular nation state) to which law relates. Marvick (1977) 177±220. The End of History and the Last Man (1992).D. in an industrial. or to a set of jurisdictions that. that what Mather called `a universal. Jurisprudence for a Free Society: Studies in Law..
41 H. The idea of a `modern legal culture' also designates a unity: a uniform `modern' way of experiencing and relating to law. Harold Lasswell and Myres McDougal saw. treating a universal value of human dignity as capable of morally uniting the world. at 181. that the way `we' understand values (for example. n. Lasswell.. Describing this as a culture and assuming the uniformity of the culture allows the universality of the social (the idea of society as a bounded social totality) to be maintained for socio-legal thought. 43 H.S. Lasswell and M. 184.D. expansively. 45 Thus. Following this approach. pp. convergence approaches presume that both `law' and `society' can be preserved as familiar unities.
emotional allegiances. with the same reach. cannot be adequately characterized as simple convergences of national political societies. n. This approach suggests a way to consider law's regulated populations as social networks that are not necessarily co-extensive with or bounded by political societies. 2 outlines the approach.. cit. Part 4. such as `the stranger' or `the metropolis'. affective allegiances. 48 G. Simmel. cit. Law. Cotterrell. On Individuality and Social Forms: Selected Writings. 13 relates it specifically to legal transnationalism. or on specific social categories not territorially specified in any restrictive way.46 These types of social bonds do not necessarily overlap to produce clear cultural boundaries or unities. `exchange'. But if some are extended in this way. economic interests. And it can treat law's practical jurisdictions as not necessarily limited by the borders of nation states. 31. Many of them remain confined in nation state borders. which transnational legal pluralism increasingly regulates.. chs. op. 6. `domination') and his general social types.shared beliefs or values. 7. n. 5 and 6. Instead. and those that are extended are not necessarily extended in the same way. and traditions.49
46 R. P.. Law and law-like regulation address these networks. Levine (1971). Social networks (unified by. their patterns. cit. `conflict'.
ß 2009 The Author.48 I have advocated elsewhere a way of examining the social (for the purposes of legal theory) as made up of a strictly limited number of contrasting (Weberian) pure types of social relations of community combined in innumerable networks of varying size and scope. for example. Culture and Society: Legal Ideas in the Mirror of Social Theory (2006) ch. 49 Cotterrell. n. others are not: they are more localized. becomes problematic. Certainly it often looks as though convergence is occurring. 6. but many now do not. Gurvitch. What theoretical resources are available to make sense of the social environments which this pluralism assumes? Most useful may be the kinds of social theory that focus on relatively abstract but closely defined forms of social relations. Journal Compilation ß 2009 Cardiff University Law School
.N. The sociologist Georg Simmel's basic social forms (for example. or spatial blocks like those of territorially defined political societies. ed. op. n. see Nelken. op. Dialectical Sociology: An Analysis of the Sociology of Georges Gurvitch (1968) chs. Once this is recognized. and 9. `sociability'. 3. n. neither do their legal supports. 31. But what appears as convergence is the extension of some (often economic) networks of social relations (and their regulatory needs) across nation-state borders. op. ch. Cotterrell. and Cotterrell.. 46. 47 G. or common history. cit. are examples of the kinds of concepts that may be useful. language or traditions) are very diverse.47 Also conceptually suggestive are Georges Gurvitch's subtle analyses of `sociality'. op. common beliefs or values. On the empirical complexity of `culture' as a focus of comparative socio-legal research.. Applications of it are found in Cotterrell. the idea that cultures can be thought to identify distinct social totalities. cit. D. Sociology of Law (1947). the social has to be seen as made up of innumerable diverse networks of social relations. Bosserman.
But. But what is certainly important in these critiques is the sense of moral outrage. comprehensive legal and social scheme. Fischoff et al. cit. 53 M. 52 S. 55 R. And. `Antivonbar' (2006) 1 J. Instead. What they have done. A less clamorous disquiet comes across in other. instead. the idea that law has lost its way: that it may be too focused on technicality. 52. (1978) 874±5. Journal Compilation ß 2009 Cardiff University Law School
. too concerned with economic rather than wider cultural concerns. Economy and Society: An Outline of Interpretive Sociology. through law. or with aiding private or sectarian interests rather than some larger general social good. Pound. but it is not doing it. according to Tamanaha. to take two striking examples. is to register a deep sense that something is wrong ± morally wrong ± with law. E. legal instrumentalism has indeed largely reduced law to serving and managing individual and group interests. Moral Conflict and Legal Reasoning (1999) 7. The legal philosopher Scott Veitch has argued that liberal law stifles a genuine liberalism that would seek to identify and respect incommensurable ultimate values and to address conflicts between them.
ß 2009 The Author. Legrand. 56 id. Presenting human experience in the form of interests ± essentially as claims. n.52 The implication is that Max Weber's view of modern law as the means of compromise of conflicting interests53 is not enough: there is more for law to do. in which potentially conflicting interests can be made to coexist as harmoniously as possible in a single. Weber.. 54 Tamanaha.54 Perhaps this kind of reduction is also the general tendency of convergence theory.. 28. neither Brian Tamanaha on legal instrumentalism50 nor Pierre Legrand on convergence theory51 has been able to put forward alternatives in any precise or wholly persuasive way. Veitch. `European Legal Systems are not Converging' (1996) 45 International and Comparative Law Q. n. The most prominent such theory in legal philosophy is Roscoe Pound's sociological jurisprudence which reduces most legal issues to a balancing of interests. Legrand. demands or desires of individuals56 even where these have very important social or
50 Tamanaha. 207. op. cit. well co-ordinated unity.INTEREST ANALYSIS AND THE SOCIAL Worries about legal instrumentalism and about convergence thinking have been expressed with unusual passion by some writers and have attracted much attention. of Comparative Law 13. Social Control through Law (1942). p. 51 P. different writing. to a systematic. law has reduced liberalism to `rule-based individualism' and `interest politics'. perhaps in each case the arguments somehow do not hit their mark ± what is being attacked is not an easy target to define. P. tr. 204.55 Pound's view of society is an image of vast diversity reduced. op.. on facilitating means without examining the worth of ultimate ends. 28. 184. Because of the uncertain focus it is easy to be dismissive. 68.
seemingly universal types of individual claims and projects. insecurities.59 The process may seem efficient and obviously beneficial when what is sought from law is support in satisfying what can be easily understood as self-regarding wants.A. Pound's now rarely discussed theory is at least a reminder that almost any human concerns can be expressed as interests and so processed into functionally uniform units of legal concern. Emphasis added. the former sees law's task as being to satisfy those actors' aims as far as possible. Cotterrell.. cit. 24±5. growth or progress. . Journal Compilation ß 2009 Cardiff University Law School
. 58 There is certainly a close link between such an interest-focused approach and legal instrumentalism. But Pound insisted that general legal values. These can be contrasted with (ultimate) values indicating abstract or universal conceptions of the good.57 which law can sort and compare.58 I think that similar assumptions underpin many harmonization efforts in comparative law. allegiances. `Interests in Political Theory' (1983) 13 Brit. The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. should govern the balancing of interests. held to for their own sake. or when what need to be taken into account are ambiguous.) ch. See R. 6. J. op. A. when ultimate aims become matters of dispute or misunderstanding. (2003. M. and he did not consistently affirm a purely instrumental view of law. . `Methodology for the Examination of the Function of Values and Interests in the Process of Social Change' (1964) 25 Sociological Analysis 75. 59 Pound. their scope and weight may nevertheless be hard to measure. of Political Science 379. op. Ware. Neal. diffuse. Compare Weber. and commitments. `The Concept of Interests' (1980) 8 Political Theory 83. Here what is to be achieved is what Pound called `such an adjustment of relations and ordering of conduct as will make . and complex desires. In a world of transnational influences and pressures. cit. go round as far as possible with the least friction and waste'. This is often the case where aims are linked to what is seen as economic benefit. people seek general affirmation and recognition of their distinct fundamental values and
57 See C. If the latter sees law as merely an instrument of specific actors pursuing particular aims. treats interests as referring to `desires for special advantage for the self or for the groups with which one is identified'. p. 65. 53. and the interests systematically formulated. pp. n. often related to collective goods.. Reeve and A. 2nd edn. feelings.public dimensions ± creates a sense of uniform manageable packages of `self-regarding wants'. Harmonization projects are less assured when legal issues broaden out to embrace Veitch's incommensurable values. If these are definable as interests. the means of satisfying human claims to have things and do things. or translate into terms that allow precise legal balancing or comparison. at 75. n. reflecting a larger `common good' drawn from legal experience. These efforts seem most successful in areas of law governing instrumental social relations of community ± mainly contract and commercial law. Such an approach might make convergence seem even inevitable ± a matter of good technical management (social engineering) through law ± if only the correct balancing formulae can be adequately refined. 55. Swanton.
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and beliefs or values. not necessarily expressing the beliefs and values directly in legal precepts but actively defending a place for them as part of culture. convergence thinking may seem to belittle this. At the same time convergence thinking often does not address affective allegiances such as special emotional attachments to nation or community. affect. Journal Compilation ß 2009 Cardiff University Law School
. many of which now extend beyond the boundaries of nation states. 32. and cannot be equated with specific traditions. The task is to recognize legally the richness of the social. established neighbourhoods. and national traditions ± what might be called the settled fabrics of everyday life. At the same time a need is often also felt for law to respond to tradition in a broad sense ± that is. and ultimate values should certainly not be seen as limited to the concerns of cultural minorities. languages. While law serves networks of primarily economic instrumental relations.beliefs (religious or secular). People may want not only technically useful law but also law that they can see as `truly theirs': law expressing what they see as the distinctive character of their nation or community ± even if this is felt rather than understood. The challenge for legal regulation is to recognize fully (and even-handedly) the different kinds of variables that unite and differentiate people.60 both natural and cultural. rather than reduce it to regulatory `packages' that are most convenient for purposes of legal harmonization and for instrumental state-centred views of law. 177. demands are made for law to protect. p. there are also innumerable social networks linked by bonds of tradition. Hence. But perhaps the distinctiveness of each of these kinds of variables becomes more obvious in so far as they become transnationally focused. historical memories. architectural treasures. The element of emotion that sometimes informs law. They see no reason why law should not contribute to this.. in the senses indicated above. affect. for it to focus not only on facilitating change and assisting chosen projects (what Boaventura de Sousa Santos calls `rights to options') but also on protecting valued local environments (`rights to roots'). for example. beliefs. collective goals. n.
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60 de Sousa Santos. not integrated features of a political society but diverse in their range of reference within and beyond nation state boundaries. landscapes and wilderness. beliefs or values. op. and which Savigny and the historical jurists understood. The diversity of ultimate values and beliefs matters. but the legal challenges of tradition. customary practices. cit. is too easily ignored. Multiculturalism confronts law with special challenges to take account of the diversity of these networks inside political societies.
with some justification. This paper has also tried to suggest that some diffuse but highly influential orientations in social and legal thought tend to impede this. even on their own terms (for example. That is. such theory will have to go beyond mapping a new socio-legal terrain. so as to give the whole sociolegal research enterprise a sense of direction and a means of confronting the outdated general views of law and its social contexts that dominate legal philosophy.CONCLUSION: THEORY IN FLUX Is it possible to envisage new conceptions to replace the old views of law and society that underpinned sociology of law when its focus was securely on nation states and their relatively self-contained legal systems? It would certainly defeat the purpose of the argument here to suggest that socio-legal theory should aim to produce some definitive and comprehensive concept of contemporary law or of the social regulated by law. not imagine a new settled socio-legal world replacing the old Westphalian one. If some of it does envisage broad convergence scenarios. Useful theory will recognize that everything is in flux. and its stable hierarchies) they are seriously in error. it needs to show. it does so in ways that attempt to make explicit their conditions. interest analysis. Yet theory needs somehow to envisage the entirety of the socio-legal field in ways that always stress legal and social variation. These and the forces determining them need to be understood. Some scholars.61 Yet Rawls's outlook has been
61 J. the labels `law' (which must be rethought now as a regulatory continuum) and `society' (which must be re-envisaged as the social not limited to politically organized society) should be treated as indicating variable clusters of elements. Theory needs to accomplish a difficult trick. It must envisage the socio-legal field as a whole. more directly and forcefully than before. They have been discussed here in terms of the three concepts of legal instrumentalism. So socio-legal theory. yet forming shifting patterns. and convergence thinking ± a kind of `Bermuda triangle' of assumptions about law and society into which imaginative thought about the nature and scope of the legal and the social tends to disappear. The Law of Peoples (1999). in emphasizing law's systematic character and unity. much valuable theoretical literature is available to build on. Journal Compilation ß 2009 Cardiff University Law School
ß 2009 The Author. not united intellectually or politically. Clearly. but this paper's argument is that theory is needed as long as it is of the right kind. For example. its processes and underlying forces. in the face of legal transnationalism. but with a tolerance of less liberal regimes that respect basic human rights principles. that. John Rawls's `law of peoples' thesis postulates in elaborate terms a liberal democratic convergence to be achieved through law. needs to emphasize and address sociolegal change. As regards widespread juristic assumptions about law. think there is too much sociolegal theory anyway.
64 Carl Schmitt's still influential work on international law can stand here for a different. n. ultimately more conservative scenario rooted in familiar state forms ± the extension of traditional national sovereign power to dominate an international arena. 48.. an interplay of both is surely inevitable (voluntas and ratio being inseparable aspects of law) and it may be suggested that neither will produce a settled system of transnational regulation for the foreseeable future. an unequal and fractured world of powerful. Empire (2000). Building on
62 Buchanan. 225±6. pp. reconciliation or compromise between regulatory regimes. Journal Compilation ß 2009 Cardiff University Law School
. provide vivid scenarios but they are not specifically theories of legal transnationalism because the diversity of regulation as such. 66 Gurvitch. even if they see also a transnational realm of resistance to this forming. G.66 If the second of these two visions of development may seem the more attractive.65 Such expansive theories. Georges Gurvitch foresaw some such broad choice of futures more than half a century ago. n. cit.criticized as a modified Westphalian view that does not recognize the extent of politically significant cultural divisions within states.63 perhaps an ideal rationalization rather than a `realist' observation of world conditions.. is not usually the centre of attention in them. 46±8. 64 M. op. tr. through the creation of a monopoly or competing monopolies of transnational force. two broadly contrasting visions of development: one in which voluntas (authority based in coercive power) dominates. empirically-rich `middle-range' theory addressing particular legal aspects and instruments of globalization.L. n. never free of conflict. and the transnational shaping of legal demands and aspirations. Hardt and A. pp. if de-centred. Sociology of law also has much valuable. By contrast. ideas of legal pluralism provide the key to understanding this future. Schmitt's emerging nomos of the earth envisages the control (by force or consent) of the world by an all-powerful hegemonic power centre or by several transnational power blocs confronting each other in uneasy balance. however. Hardt and A. 61. Negri. M. and of regulatory environments.
ß 2009 The Author. cit. transnational control. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. and another in which a transnational web of legal principle (ratio) gradually takes shape through a process of influence.. and the reality of ongoing (at best repressed) inter-state conflict. 65 C. Ulmen (2003) 354±5. 63 Rawls. As argued earlier. op. Negri. Schmitt. and others offering comparably large vistas. Michael Hardt's and Antonio Negri's idea of `Empire' is of a vast overarching network of global order. cit. op. They usefully imply.62 And it emphasizes `peace by satisfaction' as opposed to `peace by power'. 5. Multitude: War and Democracy in the Age of Empire (2004).
can find what Durkheim called its moral `soul'. Â . and with established juristic and legal professional outlooks. However subversive it set out to be. guided by empirical study of the circumstances of time and place. 3. But the intellectual challenges posed by legal transnationalism serve the valuable function of undermining relationships that could become too comfortable for the socio-legal enterprise and neutralize its critical power. They may help to locate empirical legal sociology's inbuilt instrumentalism in a larger. it directed its subversion at building more socially satisfying regulatory structures. 68 E
ß 2009 The Author. Spectres of transnationalism may be friendly ghosts. A. on beliefs or ultimate values. or on the security of shared traditions and common environments of all kinds. Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (2003) ch.
67 See. aimed at being useful. op. 3. Because it still embodies this constructive subversion in its intellectual traditions. n. undermine its over-hasty assumptions about convergence. I mean too close connections with the policy imperatives of states. Legal transnationalism should set sociology of law free in the new. which focus in essence on whether law. confronted by a vast range of technical demands. reinvigorate its legal pluralist traditions and extend its moral ambitions for law and its sense of law's social importance.C. and what law's full range of responsibilities to its regulated populations in a changing world can and should be. for example.68 What this can be taken to refer to here is its multi-facetted moral meaningfulness to its regulated populations. cit. La science sociale et l'action. a responsiveness and sensitivity to the lived experience of these populations in their diverse social networks of community.. Durkheim. from its very beginnings. rather than to learn to live respectfully within it. Sociology of law. a capacity to express their aspirations ± whether focused on economic or other instrumental projects. 2nd edn. Moral meaningfulness demands regulation that can support all the diverse bases of community. provides a useful survey ± primarily from an international law and international relations perspective ± of theoretical resources to address law's role in the global political economy. They may help to dislodge the increasingly anachronistic modern urge to remake the world. Cutler. deeper perspective. (1987. It has to take the lead in envisaging the legal structures and ambitions appropriate for the transnational future. Legal sociology has to decide for itself how to envisage law today as a social phenomenon. on emotional allegiances or resistances.) 150. sociology of law as a research enterprise remains vitally important.67 It is important that they should not ignore the moral concerns mentioned earlier. still largely uncharted areas beyond the familiar old landmarks of `law' and `society'.these resources. Journal Compilation ß 2009 Cardiff University Law School
. sources cited in Nelken. new perspectives will develop.