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Redirecting Social Studies of Law

Author(s): Richard L. Abel


Source: Law & Society Review, Vol. 14, No. 3, Contemporary Issues in Law and Social
Science (Spring, 1980), pp. 805-829
Published by: Wiley on behalf of the Law and Society Association
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REDIRECTING SOCIAL STUDIES OF LAW

RICHARD L. ABEL

The essays in this volume offer a wealth of suggestions for


new directions in sociolegal research, not only about the
particular subjects they themselves address but also, by
analogy, about many others. Here I want to approach the task
of theoretical reorientation in a different way. While these
essays were in progress I had occasion to attempt a critical
overview of recent American scholarship in order to identify
the questions posed and assess their strengths and
weaknesses. This was in no sense a systematic research effort
but merely a reflection upon my experience as editor of this
Review from 1976 to 1978, based upon the approximately 500
manuscripts submitted, the nearly 200 books sent for review,
the proposals offered for this project, and the papers presented
at the second national meeting of the Law and Society
Association in Minneapolis in 1978. I would modify these views
somewhat in light of work disseminated in other ways or
produced during the subsequent two years, but I would not
greatly alter them. I offer them here in the hope of stimulating
debate on the level of metatheory, for I sense that our field is
running so smoothly along familiar tracks that the questions
and answers have begun to sound a comfortable, but rather
boring, "clackety-clack."
The choice of topics is personal and makes no claim to
comprehensiveness. Though I have not documented my
characterizations of recent research, I think most readers will
readily summon up illustrations. For purposes of organization
I have grouped the topics under three headings-legal
institutions, the functions of law, and the values served by
law-but overlap and interrelations among those categories are
frequently more important than the divisions themselves.

I. LEGAL INSTITUTIONS

An institution is nothing more than a complex of


interconnected, more or less regular (i.e., repetitive) behaviors
that are normatively legitimated. Some legal institutions, like
LAW & SOCIETY REVIEW, Volume 14, Number 3 (Spring 1980)

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806 14 LAW & SOCIETY / SPRING 1980

courts, are formal and official; others, like patterns of


negotiation, lack state recognition. Institutional studies have
tended to focus on the former category.

A. Legal Profession

The legal profession has been an obvious starting point for


the social scientific study of legal phenomena: it is less
protected from the scrutiny of outsiders by a protective
covering of legal rules since the behavior of lawyers is less
closely regulated by law than that of other legal actors, such as
judges; there is also a body of scholarship, the sociology of the
professions, that is readily applicable. Furthermore, lawyers
interact directly with many more people than do other legal
institutions, such as appellate courts or legislatures, and can
therefore have a more immediate impact upon society and
elicit stronger public attitudes. Nevertheless, it seems to me
that research has taken a number of wrong turnings. Scholars
have emphasized the socialization of lawyers, thereby choosing
to view behavior as an expression of cognitive, ethical, and
cultural influences rather than a product of social structures or
material forces. This is related to a belief that reform can be
achieved through education and exhortation without the
necessity of structural change. Socialization is largely
identified with the brief three-year period of formal legal
education despite ample evidence that fundamental personality
traits and ethical tenets are acquired much earlier and that
patterns of professional behavior are inculcated later, during
the early years of practice. The choice of this focus may have
less to do with theoretical salience than with methodological
convenience: law students are a captive population, relatively
unconcerned with concealment, and they are also the social
inferiors of the researchers.

Within the profession as a whole certain kinds of lawyers


receive disproportionate attention. These tend to be low status
practitioners, whether defined in terms of subject matter
(family, criminal, or personal injury law), the structure of
practice (solo and small firm, legal services), population served
(the poor), or ascribed characteristics (women, ethnic
minorities). White male lawyers practicing in larger
partnerships or employed by corporations and representing
business interests have been largely ignored despite their
social and numerical dominance. This bias feeds the official
ideology that the major ethical problems of the profession are

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to be found at its base, which should therefore be the principal


target for reform.
Studies of the legal profession are further skewed in their
preoccupation with efforts to redistribute legal services. It is
not surprising that the numerous innovations in delivery
systems during the last two decades have aroused considerable
scholarly interest and have generated research designed to
ascertain the extent of the "legal needs" that remain unmet.
But this research has two unfortunate by-products: it suggests,
implicitly, that legal services could be redistributed equally
and "legal needs" adequately fulfilled, and it distracts attention
from the 99 percent of lawyers' services that continue to be
allocated privately through the market. Just as social reform
allays the pressure for more fundamental change, so research
on reform not only diverts scholars from thinking about the
structural factors that stimulated the reform effort-and are
likely to frustrate it-but also lends an implicit academic
legitimation to the status quo.
Most of the scholarship described above avoids the central
question: what do the majority of lawyers do for their clients
on a day-to-day basis? In this, social science unfortunately
parallels fiction, which still respects work as the one tabooed
subject. Yet the issue is sometimes approached tangentially in
two ways. There is growing interest in competence and
efficiency, a by-product of public sector and other third-party
payment for legal services (which replays the recent history of
medical care) and of greater competition within the private
profession. And Watergate sparked a public display of concern
over the ethics of lawyer behavior, most of these studies begin
with the formal rules of professional conduct and compare
them with behavior or ponder minor modifications, but
occasionally the fundamental presuppositions of the adversary
system are questioned.
Just as the bulk of lawyers have been largely exempt from
scholarly scrutiny, so the professional associations to which
they belong have generally hidden behind a screen of in-house
histories. There are signs of change, however, perhaps a
consequence of the divisions emerging within the profession as
it undergoes demographic transformation, and of the rising
chorus of external criticism. Thus, we begin to see studies of
internal governance, professional discipline, involvement in
quality control, the suppression of competition (rules against
advertising, the imposition of minimum fees, restrictions on
interstate mobility, the rise of specialization, the subordination

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808 14 LAW & SOCIETY / SPRING 1980

of paraprofessionals), and control over entry (through


accreditation of law schools).
Fundamental criticism of the ideology of professionalism
and the actual behavior of professional associations has led to
the next step, serious consideration of deprofessionalization-
initially, the gradual withdrawal of state protection from the
professional monopoly; ultimately, state intervention to reduce
dependence on lawyers. But even these latter possibilities,
which are only entertained seriously by the occasional deviant
scholar, do not avoid the pitfalls already mentioned:
professional structures are a product of economic forces
mediated through client demand and thus would remain
largely intact even without state support. If studies of the legal
profession are to escape triviality, they must grapple with the
question of the relation between lawyers and basic economic
structures. To do this they must study up, not down (the
profession's elite, not its deviants or base), choose their values
from outside the professional ideology, and attend to behavior
rather than norms.

B. Courts

The social study of law began with the study of courts,


especially appellate courts, because it adopted the scholarly
agenda of the legal realists, just as they had borrowed theirs
from the legal formalists. Having done this, social scientists
were forced to adopt a debunking posture in order to dramatize
their contribution to questions that had already received legal
answers. Their initial strategy was to argue that judicial
behavior was a function of who the judges were: hence they
studied processes of judicial selection; patterns of recruitment,
advancement, and retirement; the demographics of the
judiciary; and coalition formation within a court. These studies
are flawed by errors similar to those identified in the literature
on lawyers: behavior is explained in terms of background
rather than tasks, and if early socialization is not overlooked,
there is too little attention to the process of "becoming" a judge
following appointment to the bench.
Recent research has done much to avoid this pitfall by
focusing on behavior within the courtroom, applying the
theories and methodologies of sociolinguistics and psychology
to study patterns of communication among all the actors
(lawyers, parties, and witnesses as well as judges), memory,
stereotyping, and credibility. But just as political science
tacitly accepted the questions about appellate decision making

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posed by jurisprudence, so sociolinguistics and psychology


have tended to adopt legal textbooks on evidence and trial
strategy as sources of research issues. Some dependence may
be inevitable in a new interdisciplinary field, but the blinders of
legal scholarship will have to be discarded if any real
theoretical advances are to be made.

Social scientists also ask how behavior within the judicial


arena is influenced by the larger environment. Litigation
studies exemplify this approach, analyzing who sues whom for
what (in recognition of the fact that significant decisions are
not made only, or even primarily, by judges) and how these
patterns are related to macrosocial and historical variables. A
particular concern is the extent to which government and
corporate actors that wield substantial power in other arenas
also dominate the courtroom (both numerically and in the
individual case) and whether such dominance contributes
significantly to their power. This question is raised in an
accentuated form in courts that are specialized by subject
matter, either because such specialization allows a limited
number of actors to exercise even greater dominance (as in the
Court of Customs and Patent Appeals) or because the court's
raison d'stre is concern for the relatively powerless (as in
juvenile, family, and small claims courts). The proliferation of
specialized courts in response to the growing complexity and
volume of litigation makes these questions particularly timely.
Yet the social scientists who study courts are most
commonly concerned not with the issues just enumerated but
with questions of efficiency: caseload, delay, cost, and the
application of technology, especially in the management of
information. Here is another instance in which the theoretical
framework is defined by the object of investigation rather than
by the investigator. This illustrates again the dangers of
scholarly subordination, for when problems are defined by
institutions, the solutions themselves may become problems:
rationalization of the judiciary contributes to the gap between
legalist model and organizational practice, accelerates the
increase in caseload, and intensifies domination by government
and business, which are structured to take advantage of
economies of scale.

C. United States Supreme Court

Social studies of the Supreme Court exaggerate the


tendencies just described. For just as the Court is a uniquely
American institution, so is the scholarly obsession it inspires.

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810 14 LAW & SOCIETY / SPRING 1980

There are several plausible explanations for this fascination:


social scientists have again accepted lawyers' notions of what is
important, and both social scientists and lawyers hope to gain
status themselves through association with such a powerful
symbol. But perhaps even more important, the Supreme Court
is a complex, ambiguous institution that obviously defies a
narrowly legal analysis.
Social scientists have posed two kinds of questions about
the Court: how do we explain its behavior, and what are the
consequences of that behavior for the larger society? The first
issue, the politics of judicial decision making, inspires studies
of agenda setting, assignments to write majority opinions,
changes in composition following a change in the presidency,
and responsiveness to other political shifts. The explanatory
variables tend to be judicial background and ideology. Yet if
such analyses are essential because the Court is not simply a
legal institution, they are also inadequate because the Court is
not a purely political institution either. They will therefore be
condemned to rediscover the "gap" between image and reality
until a model is developed that properly represents the duality
that pervades this as well as every other court.
This same ambiguity about institutional identity also
characterizes questions about the consequences of the Court's
actions. I will deal with "impact" studies below; here I want to
consider the issue of legitimacy. Because the Court is
generally depicted as a legal institution, some scholars ask
whether its more or less explicit involvement in political
decision making may not reduce its legitimacy in the eyes of
the public; others ask whether the Court cannot confer
legitimacy upon particular policies by making them appear to
be legally (i.e., constitutionally) inevitable rather than just
politically expedient. The difference between these viewpoints
is often little more than the scholar's unstated agreement or
disagreement with the Court's actions (a good illustration of
the political bias that underlies all "value free" research). But
a more important flaw is that both kinds of questions
presuppose that the public holds strong feelings about the
Court and its proper role, an example of the way in which
questions on both sides of the rather limited political spectrum
draw upon and contribute to the prevailing ideology. Yet what
little we know about popular attitudes suggests widespread
ignorance and indifference, little attachment to a legalist model,
and a multiplicity of publics. If people were asked to express
their own views about governance, instead of being required to

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agree or disagree with the preconceived model of the scholar,


we might learn much more about how the citizenry resolves
the inescapable contradiction between law and politics.
Social scientists not only start with the lawyer's models of
judicial decision making and legitimacy but also allow
themselves to be drawn into debate over the substantive legal
issues that the Court frames for decision. There is nothing
wrong with scholarly participation in legal or political
controversy. But the activist should not lose sight of the
symbolic content concealed beneath the ostensibly normative
discourse. Debates over integration, obscenity, abortion, gun
control, or the death penalty-indeed many, if not most, of the
issues that the Court chooses to decide-are actually struggles
between political groupings based on ethnicity, class, gender,
religion, socioeconomic status, and residence, struggles that
happen to be expressed as a contest over whose norms will
publicly prevail. It is important to understand why political
struggles take a normative form, but analysis cannot be limited
to a consideration of whose norms are "right."
Despite the fact that the Supreme Court was one of the
first legal institutions to be subjected to social scientific
scrutiny, this area of scholarship is one of the least satisfactory.
The reason, I believe, is the continued confrontation between
two fundamentally ideological models, the legal and the
political, with the result that scholarship inevitably errs on one
side in overreaction to the other. This opposition must be
transcended by a view that resists political reductionism-
norms clearly are important-while recognizing that the way
issues are framed and the impact of judicial decisions on
various audiences invite, indeed require, social scientific
understanding.

D. Juries

Both this institution and the scholarly attention it attracts


are again distinctively American. Indeed, the role of the jury is
not only related to but also, in a sense, the mirror image of the
role of the Supreme Court. Where the Court is a hybrid legal-
political institution that purports to derive social policies from
legal rules, thereby offering a legalistic legitimation for political
action, the jury is a hybrid political-legal institution that
purports to derive legal rules from shared values, thereby
offering a political (i.e., democratic) legitimation for legal
action. The kinds of questions posed by research reveal the

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812 14 LAW & SOCIETY / SPRING 1980

same uncertainty about the proper relationship between law


and politics that we saw in the previous section.
How can we reconcile the substantive irrationality we
value in juries-not only the attachment of jurors to extralegal
values but also their disregard (as laypersons) for consistency
from case to case-with the formal rationality of adherence to
rules, the sine qua non of liberal legalism? This question
produces studies of jury behavior, usually through simulation,
that investigate whether jurors deviate from their instructions,
how they evaluate evidence, and whether the verdicts of jury
and judge differ. It also leads to inquiries about whether jury
decision making conforms to our political ideal of direct
democracy, often through accounts by jurors involved in
sensational criminal or political trials; here the questions are
whether participation is relatively egalitarian or dominated by
a few, and whether illegitimate considerations have colored the
outcome. Because the jury is primarily significant as a highly
visible democratic symbol, it is essential that it be
representative of the general population; we are much more
concerned about white, middle-class overrepresentation when
we find it on the jury than when it characterizes the bench,
since judges are supposed to be merely mouthpieces for the
law. Hence there are numerous studies of racial, class, gender,
educational, occupational, and age bias in jury selection.
Ambivalence about whether the jury is a legal or a political
institution has also generated applied research that treats it
exclusively as one or the other, rather than exploring the
tension between those two dimensions. On the one hand, there
is a concern to rationalize the jury, focusing on questions of
cost, delay, reductions in size, the selection process, voting
rules, the length of time jurors are required to sit, etc. Just as
rationalization threatens to convert courts into administrative
bureaucracies, so it is likely to undermine the democratic
essence of the jury, and ultimately to cast doubt upon the
continued value of that institution. On the other hand,
research that exploits its uniquely political character, using our
increased knowledge about jury decision making to select
jurors so as to increase the probability of a desired verdict, is
just as likely to erode the legal legitimacy of the institution.
The central error of jury research is a recurrent one in
sociolegal studies: preoccupation with manifest functions and
instrumental roles at the expense of the latent and the
symbolic. In its impact on the day-to-day administration of
justice, the jury is a marginal institution and is likely to

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become increasingly irrelevant as it is "rationalized" and the


number of cases it handles declines. Its significance, best seen
in the sensational trials that attract widespread attention, is as
a reminder that an essential element in the legitimacy of our
legal system is direct democracy. Research should therefore
examine how citizen participation in, media portrayals of, and
public attitudes toward juries strengthen or detract from this
ideology.

E. Extrajudicial Dispute Processing


If the Supreme Court and the jury are complementary
institutions, so are courts and extrajudicial institutions for
dispute processing. As rationalization transforms courts into
bureaucratic administrative agencies for the uncontested mass
processing of routine claims and the rubber-stamping of
settlements, there will be pressure to find or create other
institutions that better evoke the traditional model of the
adversary system: equal opponents, full exploration of the
issues, voluntary acceptance of the outcome, and efficacious
implementation. The sources of this image are manifold:
romantic views of tribal society, nostalgia for a preindustrial
past, urban idealizations of rural purity, antiprofessionalism,
etc.

The redirection of attention away from courts has certain


merits. It reminds us that the state has no monopoly over legal
functions. It is not only societies with a relatively undeveloped
state apparatus (generally found in the third world) that
tolerate the coexistence of competing jurisdictions; the latter
are also found within the most bureaucratic and centralized of
states: economic institutions (corporations, trade associations),
religious and ethnic groups, organized sports, universities, etc.
Furthermore, in all societies, formal legal institutions handle a
numerically insignificant proportion of the total population of
disputes, instances of normative violation or sanction, and
formulations or changes of rules.
But the interest in unofficial legal behavior, and especially
in disputing, also carries certain dangers. Because it originates
in nostalgia, it looks for contemporary counterparts to disputes
and dispute processes that are believed to have been prevalent
in other times and places; but those counterparts may either
have vanished long ago or may now have a different, and
usually lesser, significance. Thus, there is a preoccupation with
disputes between intimates linked by multiplex ties, although
most important contemporary disputes probably arise between

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814 14 LAW & SOCIETY / SPRING 1980

individual strangers and especially between an individual and


some corporate entity. And there is a tendency to look for
dispute processes in the residential community or (to impose
them there) even though most important interaction occurs in
some other context, such as the workplace. Furthermore,
without gainsaying the insights that can be obtained from
examining unofficial third-party institutions, I contend that we
must shift our gaze still further away from courts. Just as most
controversies handled by a third party are never litigated, so
most disputes never even reach a third party. It is far more
difficult to study dispute behavior that is not bounded and
made visible through the intervention of a third party, but this
is insufficient reason for not trying.
Research on extrajudicial dispute processes is fraught with
a double peril-not only may it overlook significant
phenomena, but it may also misinterpret what it does see,
under the influence of the same ideological nostalgia that
constituted the original inspiration. Thus the high value placed
on informalism can obscure the fact that informal processes
may lead to different, and perhaps less desirable, outcomes
because they incidentally change the balance of forces. For the
same reason, there is a tendency to disregard the tension
between informalism and legality, which is generally resolved
by rendering informal processes noncoercive and hence often
trivial. Yet even informal third-party dispute institutions can
transmute political conflict into legal form, thereby altering the
parties, the process, and the possible remedy. The reverse,
though less common, can also occur: formal litigation and
informal disputing can provide the occasion for political
mobilization. But both these transformations may be less
significant than those that occur earlier in the evolution of a
dispute: the initial characterization of an experience as
injurious, the expression of a grievance about it to another, and
the confrontation of an adversary, directly or through an
intermediary. Thus the politics of dispute transformation-
both the causes and the consequences of changes in the
parties, processes, and institutional forms-seem to me worthy
of further study.

F. Administrative Agencies
Research on administrative agencies encounters many of
the problems already discussed. Agencies tend to receive less
attention than courts despite the fact that they handle many
more cases. Indeed, this may be one of the causes: front-line

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institutions occupy a relatively lowly status in the legal


pyramid. Social scientists appear to neglect agencies for much
the same reason that legal scholars shun them: both have a
paradigm (legalism) for the behavior of courts, one that allows
them to measure deviation and seek to explain it, but they lack
an adequate model for administrative behavior. Agencies, like
the Supreme Court and the jury, are hybrid institutions. They
are not purely legal because they purport to engage in rule
making and planning. Yet they also fit uncomfortably within a
political label; because they are not democratically responsible
to an electorate, they cannot acquire political legitimacy and
must claim to be following rules.
This ambiguity is reflected, in turn, in research on other
issues. For instance, scholars are often interested in how an
agency treats the parties that appear before it because its
declared purpose is either to serve the needs of the socially
disadvantaged (as in welfare programs) or to control the
powerful. In the first instance, we know that an agency that
responds passively to demands made upon it will
disproportionately benefit those disadvantaged who are better
off; yet if the agency actively seeks out the most disadvantaged,
it risks compromising the image of neutrality that is essential
to its legalistic legitimacy. In the second instance, the agency
is confronted by the obverse problem: controlling the behavior
of the powerful without an adequate political base of its own.
The outcome, all too frequently, is the domination of the
regulator by the regulated. Thus industries that have
succeeded in capturing their agencies (e.g., lawyers, interstate
trucking) demand that regulation be preserved in the face of
proposals to enhance competition through deregulation,
whereas other industries seek to throw off even the minimal
controls under which they presently operate (e.g., FTC, OSHA,
EPA, California Coastal Commission) because politically
potent adversaries have given the agencies some limited clout.
Yet despite the rising chorus in favor of deregulation, we can
expect administrative agencies to proliferate precisely because
of the problems inherent in their hybrid form: the attempt to
pursue political ends through legalistic means inevitably
achieves both superficial legitimacy and actual powerlessness.
Sociolegal research should continue to document this
phenomenon.

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816 14 LAW & SOCIETY / SPRING 1980

G. Legislatures
Although most laypeople asked to name the principal legal
institutions of our polity would probably make the legislature
their first or second choice, it has been largely overlooked by
social research on law. There are several possible reasons for
this neglect. First, sociolegal studies have been dominated by a
legalist paradigm: if institutions are ranked in descending
order according to the ease with which they can be fitted into
this paradigm-appellate courts, the Supreme Court, trial
courts, lawyers, juries, extrajudicial dispute institutions,
administrative agencies, legislatures-we can see a rough
parallel to the quantity of scholarly energy devoted to each.
Second, the analysis of lawmaking requires a macrosocial,
historical perspective rather than the microsocial, synchronic
approach of most contemporary sociology. And finally,
legislation was a well-established subject within political
science long before social studies of law emerged as a
semiautonomous field.

This marginality may explain why the studies that have


been conducted tend to dwell upon criminal and family law-
alcohol and drugs, sexual behavior, abortion and birth control,
and divorce-rather than the mass of economic regulation or
the structure of political institutions. The former subjects are
relatively nontechnical and therefore less daunting. Members
of the interest groups concerned with such legislation tend to
be the social equals or inferiors of the researchers and thus
more accessible to study. These bodies of law are subject to
dramatic changes that seem to call for explanation (though
their changeability may, in fact, indicate the superficiality of
legislative reform). And theoretical structures are available to
provide those explanations; witness the unresolvable debate
between conflict and consensus theories or the notion of
symbolic politics and status competition. Finally, campaigns
concerning criminal and social legislation often elicit mass
participation, or at least strongly held views, thereby
confirming democratic ideology and offering opportunities for
survey research to measure the "gap" between positive law and
public opinion. For no matter how large this gap, it is
remediable in theory, whereas public ignorance about and
apathy toward other legislation seriously undermines the
model of democratic pluralism.
The legislative process can be incorporated within
sociolegal studies only if the latter are radically reoriented
toward macrosocial, historical analysis of laws affecting

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fundamental economic and political structures, analysis that is


attentive to the efforts of powerful organized groups to
influence legislation.

II. THE FUNCTIONS OF LAW IN SOCIETY

The choice of discrete legal institutions as the object of


study facilitates observation by circumscribing the field. But
most institutions are multifunctional and most social functions
are performed by more than one institution. Consequently, a
functional approach is a necessary complement. I have divided
this discussion into criminal and civil law, although obviously
both systems often perform similar functions.

A. Criminal Law

The criminal justice system is generally analyzed in terms


of general and specific deterrence, incapacitation, and
rehabilitation (with an occasional afterthought about
retribution). All but the last of these perspectives share an
instrumental or utilitarian bias. The debate over general
deterrence has been closely related to litigation challenging the
constitutionality of the death penalty. Both sides framed the
sociolegal question in terms of the efficacy of capital
punishment in decreasing the incidence of those crimes for
which it is imposed. Yet this hardly seems to be the real issue.
The death penalty is carried out so infrequently that it scarcely
seems likely to be a significant factor in explaining crime rates.
We know that certainty of punishment is more strongly related
to deterrent effect than severity and that certainty declines as
severity increases. Furthermore, views about the
appropriateness of the death penalty survive empirical disproof
of its deterrent effect and are simply restructured as arguments
from ultimate values. Implicit values have also influenced the
interpretation of ambiguous data as the debate over general
deterrence has shifted to imprisonment, where the issue has
been the direction of the causal arrow in the acknowledged
inverse correlation between crime rates and imprisonment
rates. But criminal sanctions, especially those that are
relatively severe and therefore uncommon, seem to me to have
a significance that is more symbolic than instrumental. A
useful analogy might be drawn to domestic debates over
military spending and disarmament, which are likely to have
greater repercussions for the political fortunes of their
participants than for international relations-indeed, the death
penalty and nuclear weapons play similar roles in each

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818 14 LAW & SOCIETY / SPRING 1980

dialogue. Public discussion of the severity of criminal


punishment necessary to effect general deterrence is better
understood as a reflection of attitudes toward crime in the
street, law and order, the police, drugs, and the like, which in
turn are a function of such variables as class and ethnicity, and
the capacity to tolerate ambiguous moral norms and group
boundaries.

A similar preoccupation with instrumental effect


diminishes the value of research on specific deterrence. Here
the debate is between those who argue that punishment
discourages the person sanctioned from further criminal
activity and those who contend that by labelling him a deviant,
punishment confirms him in criminality. It is difficult to test
these competing theories because accurate data on instances of
undetected criminal acts following conviction are hard to
obtain, and the number of subsequent convictions, or even
arrests, is an adequate surrogate since punishment may simply
render the convict more adept at evading detection. But the
question, again, seems wrong: specific deterrence cannot
explain the fact that most people abstain from most criminal
behavior even though they have never been accused, much less
convicted, of anything more serious than a traffic violation;
moreover, labeling cannot account for first offenders or for
recidivism among those who are never punished-which
together must constitute a very large proportion of criminal
behavior. The passion with which these opposing views are
held, and with which lay people champion hard or soft lines on
crime, cannot be understood within the utilitarian calculus.
Widespread skepticism about the efficacy of general and,
especially, specific deterrence and a reluctance to confront the
retributive face of punishment have been accompanied by a
redirection of scholarly concern toward rehabilitation and other
therapeutic rationales for punishment. In a sense, these
concerns are the criminal law counterparts of the fascination
with informalism in civil law, and they raise many of the same
problems. Perhaps because rehabilitation is a relatively recent
concept and in tension with better established theories of
punishment, research has been devoted more to debunking
than to substantiating it. Thus scholars have asked whether
the substitution of "treatment" for punishment does not in fact
increase the number of people subjected to state control, the
length of time they are controlled, the level of control, and the
degree of arbitrariness and bias in the decision making process.
This and other criticisms have stimulated further reaction

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against criminal sanctions, some of which has taken the form of


selective decriminalization.

Yet despite the importance of detailing who is being


controlled by whom and how, an adequate understanding of
these reform movements-rehabilitation, diversion, and
decriminalization-must look beyond their immediate
instrumental consequences. First, it is essential to recognize
that most crimes do have victims (if only the criminals
themselves) and that decriminalization may leave that victim
less protected, another instance of "benign neglect." Second, if
crime control is a form of politics-the status degradation of
individuals and the stigmatization of social categories-so are
these reform movements. Indeed, they are clearly perceived as
status politics by those groups whose norms they attack and
who are likely to respond with the kind of law and order
backlash we have recently been witnessing. Finally, the
Durkheimian view of penal law is worth serious consideration:
there is a significant relationship between the public
declaration and sanctioning of norms and individual acceptance
of and conformity to them.
These individual criticisms suggest a more general critique
of research on the criminal justice system. First, it is a system
only in the loose sense that attempts to reform one part are
likely to produce changes elsewhere that are at least partially
compensatory. Efforts to eliminate discretion through the
prohibition of plea bargaining and mandatory minimum
sentencing illustrate this. At the same time, the criminal
process is far too complex to be comprehended within the
terms of any single, usually simple, theory: officials at the
several stages respond variously to stimuli and their behavior,
in turn, impinges differently on both the accused who is being
processed and the wider public. Second, statistical
correlations, which tend to be the foundation of criminal justice
research, need to be accompanied by qualitative observations
of institutions at work. We know virtually nothing about the
mechanisms underlying these correlations, we are often
uncertain about the causal direction, and we tend to work with
a simplistic utilitarian model. Third, our prevailing theories are
riddled with paradoxes: for instance, enhancing general
deterrence by increasing the probability of sanction may
actually produce more crime if labeling theory is correct.
Fourth, we need to take seriously the possibility that the
criminal justice system really has very little to do with crime
rates one way or the other. Such an assumption, even if

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820 14 LAW & SOCIETY / SPRING 1980

provisional, would free us to consider other theoretical


frameworks that emphasize the potent symbolic content of
both crime and punishment. We might even reflect on the
hypothesis that the function of the criminal justice system is to
support the myth that such a system is necessary to control
crime, thereby justifying its own continued existence.

B. Civil Law

Since at least the nineteenth century, much of civil as well


as criminal law has been rationalized in utilitarian terms rather
than as an expression of ultimate values drawn from tradition
or religion. This fundamental attitude colors all sociolegal
research. It suggests, to begin with, that laws are created to
serve clearly defined, coherent goals-a notion encapsulated in
the concept of legislative purpose. This, in turn, assumes a
consensus view of politics and tends to obscure the role of
power in lawmaking. Such a view not only reflects the
dominant ideology of liberal pluralism but may also be related
to the unusually prominent role of American courts in policy
making since courts present themselves as apolitical
institutions. Building on these assumptions, policy analysis
has approached the phenomenon of lawmaking by seeking to
clarify goals when they are ambiguous and to establish
priorities among them when they are inconsistent.
Laws that purport to change society are usually more
explicit about their instrum'ental goals than those that
constitute and preserve the status quo. One reason is that laws
mandating change call for a distinctive mode of legitimation:
they cannot invoke tradition, and they appear unusually
coercive. Consequently, research on civil law tends to focus on
laws with explicit reformist objectives, i.e., laws in areas where
social practice and social ideal are most divergent. In
contemporary American society such laws concern the redress
of inequality (especially class, race, and gender), the protection
of the weak (children, the handicapped, prisoners, the
physically and mentally ill, the elderly, women, the poor), and
the control and redress of abuses of governmental power. Two
kinds of questions are asked: is the law itself consistent with
declared values? How is the law being implemented? The first
is openly normative and assumes, without inquiry, that the
disclosure of inconsistencies will somehow lead to their
removal and that congruence between law and values would
have a useful instrumental effect. This is "law in context": the
use of social science to depict the environment within which

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law operates so as to highlight the shortcomings of the legal


regime. The second typifies what is perhaps the most common
style of sociolegal research: studies of impact, efficacy, the
"gap." Sometimes these are primarily concerned with the
substantive policy being implemented rather than with the
legal apparatus, as in evaluation research. But often the goal is
a theory of impact, a model of enforcement practices that will
render law more effective-the counterpart in the analysis of
substantive civil law of efforts to rationalize legal institutions
and enhance deterrence. Such theories are concerned with the
identification of a target population to which the law will speak,
the mobilization of enforcement machinery, the establishment
of hierarchical control over such machinery, and the
communication of legal change to both the target population
and the enforcement mechanisms.

The problems with this research can be traced back to its


original foundations in a utilitarian sociology and a consensus
view of politics. By pointing to characteristics of the legal
apparatus (including the substantive rules themselves) as
explanations for the failure of a legal policy, impact studies
convey two implicit messages: the flaws in the legal apparatus
can be repaired, and the policy is capable of implementation.
Evaluation research contains the additional hidden premise
that failures of implementation will be corrected once they are
revealed, i.e., that they result from ignorance or mistake. By
focusing upon these issues, impact research not only
contributes to a particular ideological view of law in society but
also distracts attention from questions that may well be more
interesting. It overlooks the many other explanations for the
attainment of a given social objective. Just as the criminal
justice system may be largely irrelevant to the incidence of
crime, so the civil legal apparatus may have equally little
bearing on the behavior to which it speaks. A purposive view
of law tends to deemphasize the significance of inadvertent
consequences, such as increases in cost resulting from
attempts to improve quality, or contributions to class formation
through inequalities of access, use, or incidence. It also
neglects the symbolic meanings of law, which is particularly
unfortunate since the significance of reformist laws is often
largely symbolic. Because it concentrates on the impact of law
upon the ostensible target population, it often ignores the value
of the legal policy for those involved in implementing it:
bureaucratic behavior is often best understood in terms of the
interests of bureaucrats, and every regulatory apparatus

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822 14 LAW & SOCIETY / SPRING 1980

spawns a host of professionals who profit from its persistence


and growth. Furthermore, just as attitudes toward punishment
survived empirical falsification of their utilitarian
rationalizations, so the bureaucrats and professionals with a
stake in regulation will continue to pursue their interests even
when the instrumental justifications for their roles are
rendered dubious by impact research. Case overload, for
instance, is often criticized because of its alleged consequences
for the quality, speed, and efficiency of bureaucratic
performance; but when these consequences are disproved-
overworked probation officers do not foster higher rates of
recidivism, harried legal services lawyers do not reduce the
number of law reform campaigns, and prosecutors and judges
swamped by a flood of cases do not resort to more frequent
plea bargaining-the demand for lower workloads simply shifts
to other grounds. Finally, and most important, emphasis on the
(remediable) inefficacy of law in promoting social reform
diverts scholars from considering the numerous ways in which
law is highly effective in maintaining existing relationships of
status, wealth, and power. Sociolegal research, like so much
social science, concentrates on the epiphenomenal, the
aberrant, the exotic. Perhaps the regular, the essential, the
normal, the domestic are so familiar, so taken for granted, that
we are unable to see them or to apprehend their contingency
unless we turn our gaze upon other times (history) or places
(anthropology).

III. LAW AND ULTIMATE VALUES

If scholarly perceptions of legal phenomena are often


distorted by the parochial lenses of utilitarianism, other
perspectives are not entirely ignored. In particular, legal
institutions are often measured against such ultimate values as
equality and legitimacy or justice. Obviously, these criteria are
closely related in the minds of both laypeople and academics:
the extent to which Americans accord legitimacy to their legal
institutions depends largely on whether they believe that they
are being treated as well as anyone else, and the reverse also
appears to be true. Nevertheless, it is analytically useful to
separate these measures since they tend to generate somewhat
different research questions.

A. Equality
Social scientists address the issue of equality most
frequently within the criminal justice system; indeed, that

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problem may attract more attention than any other in the field.
This is not surprising; the legitimacy of the law is under
greatest strain when it is most visibly coercive, and that strain
can be aggravated or reduced if the coercion is shown to be
biased or evenhanded. A similar obsession with the criminal
law and with justice for the underdog can be found in fiction,
the mass media, and even the career ambitions of prelaw
students. Equality and bias with respect to such variables as
race, class, sex, and age are studied at each stage of the
criminal process at which a decision is made, and at all of them
together: rule making, detection and reporting of crime by
citizens and the police, apprehension, charging, bail, legal
representation, pleas and plea bargaining, diversion, jury
selection, the behavior of all essential actors during trial, jury
deliberations, verdict, sentence, imprisonment, parole, appeal,
and executive clemency. Great methodological sophistication
is shown in measuring inequality, not just in statistical
techniques but also in moving between different levels of
analysis (individual and institutional), looking behind
apparently legitimate distinctions for the hidden biases they
conceal, and separating legal and extralegal variables. And yet
it is not clear that the amount of scholarly energy devoted to
proving or disproving bias can be explained or justified in
purely scientific terms, any more than these are adequate to
account for the intensity and repetitiveness of the debates over
general deterrence or those between advocates of specific
deterrence and labeling theory. For it is hard to imagine what
evidence would ultimately resolve the issue or sway adherents
from one side to the other. Rather, the debate appears to
reflect more fundamental disagreement over the legitimacy of
inequality in society.
Far less attention has been paid to inequality in the
operation of civil law. For one thing, most civil law interaction
is facilitative, and thus noncoercive, and even in litigation the
plaintiff, at least, is a free agent. For another, the invocation of
civil law outside the courtroom involves activity whose low
visibility renders it difficult to study; consequently, most
research has been restricted to contentious behavior in official
forums. A third reason is that both the categories to be
compared and the meaning of equality are less obvious. It is
far simpler to compare individuals accused of crimes and
perceive differences in punishment in terms of race or gender
than to compare an individual and a corporation in terms of the
influence they exert over contractual conditions or their

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824 14 LAW & SOCIETY / SPRING 1980

relative utilization of lawyers to anticipate tax liabilities. It


takes a good deal more subtlety to recognize that differences in
use that seem to inhere in the nature of the actors, such as one-
shot versus repeat players, are precisely what enable those in
one category to take greater advantage of the law to further
their own ends.

These studies of equality are troubling both for what they


do and for what they fail to do. Many convey the impression,
whether intentionally or not, that it is possible to achieve
formal legal equality within a society riven by major
substantive inequalities of class, race, and gender. For reasons
of symbolic salience and methodological convenience they
focus on the more visible forms of inequality: criminal law
rather than civil, the later stages of the criminal process (e.g.,
sentencing) rather than the earlier (lawmaking, detection and
reporting), litigation rather than the facilitative use of civil law.
This emphasis is doubly unfortunate. First, it diverts attention
from the more to the less significant: a larger number of people
are affected by civil law than by criminal, more commit crimes
without detection than are sentenced, more use civil law in a
facilitative fashion than engage in litigation. Second, to the
extent that such research has any effect, it may redress visible
bias by driving it underground, where it will be more difficult to
perceive and extirpate. Finally, there is an unstated and
largely unexplored tension between assessments of law in
terms of instrumental and ultimate values. In an unequal
society, the effort to use law instrumentally cannot help but
accentuate those inequalities. This is revealed most clearly in
campaigns for law and order, whose adverse consequences for
the oppressed have repeatedly been shown. But it is worth
reexamining our attempts to use law to create rights and
reflecting upon who has benefited from those reforms.

B. Legitimacy

The legitimacy of a legal system can be defined as the


extent to which its citizens view it as just and give their
consent, with a minimum of coercion, to the operation of its
rules and processes. Legitimacy has an instrumental
significance as a prerequisite for efficacy, but it is also an
ultimate value, indeed the ultimate value, by which a legal
system must be judged. Perceptions about equality are an
important ingredient of legitimacy, probably the most
important one in the United States: virtually no one accepts a
system as just if he feels he is being discriminated against, and

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many withhold their approval if they feel the system


discriminates against others. But legitimacy encompasses
additional perceptions as well, some of which have been
explored in the numerous studies of attitudes toward and
opinions about law. Although these studies have not always
made explicit their relevance to the concept of legitimacy, that
seems to me to be their greatest theoretical contribution.
Scholars have examined public attitudes toward the ability
of the state to control crime and protect the security of its
citizens, for legitimacy turns not only on what the state does
but also on what it cannot or does not do, as the contemporary
clamor for law and order vividly reveals. On the other hand,
investigators have also studied attitudes toward the fairness of
the criminal process and the punishments it imposes,
especially the death penalty. Research oriented around
narrowly defined policy interests has unearthed considerable
data about attitudes toward specific laws, especially those
governing controversial subjects such as integration, abortion,
and obscenity. Much less attention has been given to public
views concerning the civil legal process, except for repeated
confirmations of the obvious-that most people find it too
protracted and too expensive. Finally, the self-absorption, not
to say conceit, of the principal actors in the legal system has
produced a good deal of survey research on public opinion
about lawyers, courts, and the police.
But if considerable information has been amassed, its
conceptualization is seriously flawed. Perhaps most
fundamental, the concept of legitimation has neither a precise
definition nor a clear behavioral correlative. This lack of clarity
both permits and is perpetuated by a methodology that seems
to me fraught with peril: the fixed-response questionnaire.
This approach, though useful for generating quantitative data,
presupposes both the salient questions about legal phenomena
and the possible answers. It defines in advance what the
institution, process, or actor should mean to the respondent
and then requires him to agree or disagree. Such a procedure
not only fails to discover what is likely to be the most common,
and thus the most important, response-ignorance and
indifference-but also screens out folk perceptions about which
legal phenomena are significant and folk attitudes toward those
phenomena. Research should explore not only the attitudes of
people toward the legal system as a whole but also differences
in attitude toward particular elements within that system. For
instance, it is frequently posited that nullification of a single

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826 14 LAW & SOCIETY / SPRING 1980

law (the archetype is Prohibition) breeds widespread


disrespect for the entire legal system and conversely that
contempt for, say, the Supreme Court influences attitudes
toward particular decisions. But there is little empirical
evidence for either proposition. Similarly, scant attention has
been paid to the behavioral consequences of more or less
knowledge and positive or negative attitudes-consequences
such as greater or lesser compliance with law or mobilization of
a legal process. Another major gap in this area is our ignorance
of the process of attitude formation-the relative roles of
background, formal socialization, experiences with the legal
system, and the various mass media. In this regard, attention
should be paid both to the conscious efforts of actors within the
legal system to enhance its legitimacy (celebrations like Law
Day, the public relations exercises of bench and bar) and to the
often-expressed fear of some-and hope of others-that
scholarly efforts to understand the behavior of legal institutions
such as jurimetrics, the use of social science in trial strategy,
and critical writing on the organized legal profession could
seriously delegitimate them.
But the problem with this entire body of research is the
partial and ideological character of the underlying
instrumentalist model: knowledge about and attitudes toward
law are studied because they are believed to influence
compliance or violation, whereas the more significant public
perceptions and feelings are likely to focus on law as the object
of political, economic, and social struggle. Law is an
instrument, but not for the ends it proclaims.

IV. CONCLUSION

Social studies of law have reached a critical point in their


development. The original paradigm is exhausted. Unitl new
ones are constructed, scholarship will be condemned to spin its
wheels, adding minor refinements to accepted truths, repeating
conventional arguments in unresolvable debates. The source of
this paralysis is that sociolegal studies have borrowed most of
their research questions from the object of study-the legal
system (whose problems are defined by legal officials)-and
from those who studied it first-legal scholars (themselves
lawyers). The former are interested in issues like court delay,
the latter in models of official behavior like those of judicial
decision making. Sometimes the research is intended to
demonstrate that the system conforms to its legal description;
more often it debunks legal models in an attempt to declare its

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independence. All this is perfectly understandable in a new


field that confronts an exalted social institution insulated from
scrutiny by a carapace of esoteric scholarship; the social study
of politics, of religion, and today of knowledge (especially
natural science) each encountered similar obstacles and made
comparable accommodations. But if this is a necessary starting
point for an interdisciplinary field, it nonetheless imposes
inevitable limitations, as I have tried to show. Let me
summarize the problems identified.
Social science dwells on criminal law to the relative neglect
of civil. This may reflect the strong criminological tradition, in
turn a product of popular concern with understanding and
justifying the use of coercive force. But it also may be seen in a
more troubling light as a focus on marginal groups, peripheral
institutions, deviant behavior. "Studying down" is a common
response to the awe often inspired by legal institutions, but one
that tends to trivialize the research product. Another response
is to study up but embrace the object of study, adopting its
ideology as an analytic framework: research on the Supreme
Court and on corporate lawyers fits this mold and so, I believe,
does much of the law and economics literature that bemoans
the persecution of business at the hands of government.
Another facet of this problem is the preoccupation with law
and social change. I share the widespread concern with social
change, but I am skeptical that law has much to do with it.
Reformist laws that mandate dramatic new patterns of
behavior often do little to bring that behavior about. To study
their efficacy is to pose a nonproblem; we know in advance that
they will be largely ineffective-how long can we preserve a
pose of naive amazement? This is not to say that reformist
laws are insignificant; they are often part of long-term
movements-and noteworthy as formal declarations of norms or
as symbolic victories for one status group over another. And
they may, of course, serve to cool out the pressure for change.
But my real objection to the focus on law and social change is
that it distracts attention from law and social stasis. Here again
(as in the absorption with crime) the flashier role of law, which
is useful to politicians and the media and therefore commands
considerable public attention, has obscured for scholars its
larger social significance.
A third way of characterizing the theoretical dilemmas of
the field is by reference to the legitimating ideologies from
which they derive. Because we begin with inappropriate
normative models for each of the principal legal institutions-

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828 14 LAW & SOCIETY / SPRING 1980

legalism cannot describe the courts, nor consensus politics the


legislature, nor bureaucratic rationality the executive
agencies-the research those models inspire simply contributes
to the endless circular debate over their adequacy.
Furthermore, the preferred position of legalism as the ideology
of both the courts and the legal scholars who study them has
led to an overemphasis upon judicial institutions and the
relative neglect of the formulation and administration of law.
This bias is reinforced by another characteristic of sociolegal
studies, presumably associated with their immaturity. I refer
to the general insecurity within the social sciences about their
"scientific" pretensions, an insecurity that sociolegal studies
suffer acutely because they challenge a long, well-established,
and confident tradition of legal scholarship. The response is
frequently an obsession with scientism that makes concern for
method-the quantitative testing of preformulated
hypotheses-the determinant of the questions asked. This, in
turn, leads to preoccupation with microsocial, intrainstitutional
research that loses in significance what it gains in
methodological rigor.
The cumulative effect of these various influences has been
to define the central questions for sociolegal studies as
effectiveness and justice. I believe that these are the right
questions but that they have been formulated in the wrong
ways. Effectiveness has been construed in a narrowly
instrumental fashion as an examination of whether the
declared goals of a law or legal institution (usually one that is
new or reformed) have been attained. Yet we know they never
are. We should ask instead: What are its inadvertent
consequences or symbolic meanings? What are its costs? For
whom does it work? What are the fundamental structural
reasons 'why it does not work? What is the relationship
between the routine (not the exceptional) in social and in legal
life? The second focus, justice, has been correctly identified
with equality, but the objects of scrutiny, highly visible official
processes, are too limited. Our focus must be expanded in two
directions: questions of formal equality must be addressed to
low-visibility behavior, and especially to facilitative uses of law;
and we must analyze the contribution of the legal system to the
maintenance of substantive inequalities in the larger society.
This latter question will force us to examine whether formal
equality is compatible with substantive inequality.
Furthermore, we must broaden the meaning of justice itself by
stepping outside the ideology through which legal institutions

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seek legitimation and asking what the public views as just and
where it perceives significant injustice in the operation of law.
The prevailing ideology of western legal institutions is a
liberal legalism that promises both efficacy and justice. It
generates sociolegal research that repeatedly reveals instances
of ineffectiveness and injustice but, in the process, implies that
both can be corrected, thereby confirming and strengthening
the ideology. Progress, both intellectual and social, can only be
achieved by research that challenges the ideology directly in an
attempt to develop alternatives.

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