Law: History of Its Relation to the Social Sciences

W Tim Murphy, London School of Economics, London, UK

Ó 2015 Elsevier Ltd. All rights reserved.

Abstract

The history of law’s relation to the social sciences requires unpacking the multiple meanings in play on both sides of the
relation. ‘Law’ as a general term covers the two very different decision-making processes of adjudication and legislation.
‘Social science’ encompasses a wide range of epistemic projects ranging from highly positivist engagements to highly
interpretive ones. These social scientific projects have increasingly stripped themselves, in different ways, of the various
legalisms that once framed them. At the same time, as they successfully establish themselves as autonomous epistemic
practices or sources of scientificity, both legislative and adjudicative practice expand the horizons of relevant knowledge on
which to draw for legal purposes.

This article first considers a number of problems of definition
that arise in relation to the terms ‘law’ and ‘legal science.’ The
implications of two broad images of law – law as legislation
and law as adjudication – are explored in order to sharpen the
focus of the question of the relationship between law and the
social sciences. Three specific aspects of that relationship are
then discussed: (1) the relationship between law, legal theory,
and social theory; (2) the relationship of law to the interpretive
and/or phenomenological branches of the social sciences; and
(3) the relationship of law to the empirical or positivistic
branches of the social sciences. In each case, the influence of
law upon the development of the social sciences, and the limits
of these influences, is considered.
Any attempt to discuss the history of the relationship
between law and social science encounters a number of prob-
lems of definition. For the purposes of this contribution, it is
most important to draw attention to some of the problems that
can flow from the range of meanings attached to or associated
with the term or idea of law. Deriving from this range of
meanings, the variety of projects associated with the idea of
a legal science can be problematic. As a result of both of these
elements, when an attempt is made to formulate the bound-
aries of the question about the relation between law and the
social sciences, indeterminacy results.
Two Images of Law
At its simplest, the idea of ‘law,’ at least in Occidental or even
Indo-European culture, conjures up two broad images. One is of
legislation or rule making. The other is of adjudication or
judgment. Cognate distinctions, for example, between law and
policy or law and politics, and principled statements of the
supposedly modern requirements of a democratic order (e.g.,
the doctrine of the separation of powers), all play with or draw
upon this much more deeply rooted distinction, tension, and
ambiguity in the idea of law. And even this primordial distinc-
tion becomes more complicated with the emergence of a self-
thematized modern era, in which the idea of law as rule
making falls apart or splits into two broad patterns. One pattern
is the idea of making highly general, abstract, decontextualized
rules that establish the framework to govern the operations
of society (the so-called European codes; for this, see van
Caenegem, 1987); and the other is the idea, which persists in
Anglo-American or ‘common law’ jurisdictions, that rule
making is a matter of detailed, specific rule making targeting
specific problems that come to the attention of the legislator
(whether, in the traditional model, through deficiencies brought
to light in the course of adjudication, or, in the modern model,
because of problems demanding policy adjustments that come
to light in, for example, governmental bureaucracies through the
growth in knowledge of the shapes and characteristics of society
and its pathologies). Some have argued that, at least in the
common law world, the increasing volume and significance of
legislation so overwhelm our idea of law that it comes to be
projected back onto the activity of adjudication, which comes to
be understood as a kind of inferior lawmaking, rather than
a distinct process with its own specific forms of intelligibility
(Simmonds, 1984). Since Bentham (and, to some degree,
Montesquieu before him), the idea of a link between a science of
legislation and a science of society has seemed obvious. More
obscure to social science is the idea of adjudication as such
a science. Paradoxically, perhaps, the view has long been
generated from within the discipline of law that it is in the
domain of adjudication or adjudication-related activities that
a knowledge of society is both required and developed, and
from this perspective acts of legislation are seen as arbitrary or at
least as the product of political will rather than an understanding
of society. This kind of lawyer-knows-best attitude carried over,
especially in England, into the new encounter between adjudi-
cators and social scientists, especially in the sphere of criminal
justice and criminology.
Law and Social Science
It is necessary to highlight these divergent emphases because
there persists an enthusiasm in many quarters, and by no means
just among lawyers, to thematize the idea that law is the oldest
social science, that law was and/or remains a ‘science of society,’
and, in some versions, that the modern social sciences represent
merely a continuation of this science or, in some cases, a dero-
gation from it, a diminution in what society knows about itself.
The question of the relation between law and social science
and the history of this relation are further confused or
complicated by many of the uncertainties involved in the

International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Volume 13 http://dx.doi.org/10.1016/B978-0-08-097086-8.86062-6 585
586 Law: History of Its Relation to the Social Sciences
specification of what is or is not within the ambit of social
science. Confining this enormous issue to a narrow focus for
our present purpose, we need to distinguish three questions.
The first concerns the relation between law and the empirical or
positivistic branches of the social sciences. The second concerns
its relation to the interpretive and/or phenomenological
branches of the social sciences. The third, which cannot neatly
be separated from the second, is about the relationship
between law – or, to switch gears, legal theory – and social
theory, which becomes relevant if we assume that there is some
kind of connection or link between the conceptualizations of
social theory and the problematizing that emerges in the
diverse fields of the empirical social sciences.
It is perhaps unsurprising that the closest affinities and
even influences between law and social science seem to
emerge in the domain of social theory. It is increasingly
acknowledged that the writings of some of the founding
fathers of social theory, and (indirectly perhaps) of sociology,
had a legal background and that their theoretical constructions
and projects bear the imprint of legalistic or law-inspired
concerns. If, however, this is true of both Durkheim and
particularly Weber (Turner and Factor, 1994), then this obser-
vation does suggest that legal influences and origins could have
led late-nineteenth-century aspiring social theorists to formu-
late very different questions and very different theories of
society, assuming that the construction of ‘social theory’ was
what they sought to achieve. A legal background, in other
words, did not seem to lead to any particular kind of theoretical
orientation. In something of the same spirit, one of the leading
postwar texts in legal theory describes itself as an exercise in
‘descriptive sociology’ (Hart, 1961). This focus makes it
possible to see strong continuities between law and (the theory
underpinning) social science. Some contemporary political
philosophers (Rose, 1984), lawyer/psychoanalysts (Goodrich,
1997), and historians of political thought (Kelley, 1990)
have not hesitated to drive home the point, with the polemical
claim that modern social theory masquerades as different or
new, whereas the basic framework of Western social thought is
already contained in the law and indeed the tradition of law
already contains a more sophisticated understanding of the
central issues than much modern social theory.
Alternatively, some influential theorists adopt what is more
or less the opposite position (e.g., Foucault, 1976; Luhmann,
1981). On this view, there is a sharp break between an era of
social thought in which law provides the basic conceptual
scheme for understanding society, and the modern or late-
modern era in which this vision of society is undermined or
displaced by the growth of positivistic social sciences. Hacking
(1990) encapsulates what is perhaps the central dimension that
underlies this view of historical change in contrasting the role
played by the concept of the ‘normal’ in the projects of Dur-
kheim and Galton, respectively. Durkheim’s notion of the
normal is still legalistic; in Galton, it becomes entirely proba-
bilistic. And in Hacking’s view, it is Galton’s version in the
twentieth century that wins – in science, at least.
The second area is the relation between law and the inter-
pretive social sciences. Here, the connections are in one sense
much clearer and more visible, especially if we have the
‘European’ law-as-code model of law in mind. At first sight, this
seems to be a terrain on which law, history, and interpretive
social science meet in the sense that they are engaged in the
same kind of endeavor. This is because each is engaged in an
exercise of interpretation, and the paradigmatic interpretive
situation is the ‘presence’ of a text that is in some sense ‘other’
to the person required to interpret it. In hermeneutical science,
for example, the enterprise of interpretation from this starting
point is characterized as precisely a bringing together, via
the text of author/creator and reader/interpreter and as the
quest for a fusion of horizons, a merging of perspectives that
endeavors not to transcend temporality (as does analytical
philosophy) but to make it work, productively, at both ends of
its spectrum. It is apparent, viewed historically, that this style of
science (whether it is ‘scientific’ is not a question for this
contribution) owes much to law and just as much to theology,
and to the study of texts in each discipline in the universities of
medieval Europe (Smalley, 1983). Already in these disciplines,
interpretive protocols had been formalized, and their shapes
were largely carried forward into the emergence of more
explicitly philosophical projects by the eighteenth century.
Many have traced an unbroken genealogy from that point, in
the writings of, for example, Boekh and later Schliermacher
through to Gadamer (1965) and contemporary practitioners of
this approach to ‘truth’ (Rorty, 1979). Much was made of
‘meaning’ in these narratives of the history of a partial
discipline-under-construction, and therefore in many versions
Weber or Verstehende Soziologie were annexed to the narrative as
part of the same story. ‘From the actor’s point of view,’ a slogan
variously popularized (at least within the academic world) by
Malinowski and Geertz (1973, 1988), could lay claim to being
the heir to this perspective or ‘methodology,’ and claims that
this involved a direct succession to the lawyer’s perspective that,
for example, ‘actus non sit reus nisi mens sit rea’ (the doctrine of
mens rea, which seemingly involves investigation of inner
mental states and ‘intentionality’ and its degrees) possessed
and still possess a certain plausibility.
But it is precisely at this point in the history of law and the
social sciences that continuities may need to be balanced by
discontinuities. First, the once-innovative proposition that
social science can proceed on the basis that culture is a text has
been much debated and criticized (e.g., Clifford and Marcus,
1986). Second, political and legal anthropology in particular
have raised a number of questions about the tendency in earlier
studies to posit a ‘jural perspective’ when investigating aceph-
alous (lit. ‘headless’) societies, which presented a particular
challenge because no visible structures of govern-
ment or law in the familiar Western sense were available for
outside observers to observe (which is not to say that they
could not find them virtually present) (Comaroff and Roberts,
1981). Under the influence in part of some of this work, some
historians came to question the top-down model of social
integration and/or development that has had a habit of
permeating social as well as political history.
The net result of these overlapping concerns has been to
move away from or be suspicious of the deployment of
a ‘juridical’ model in the interpretive social sciences, and this
has served to highlight the difference in the concerns or
preoccupations of lawyers and social scientists. For lawyers,
the key question is what beliefs, assumptions, values, or
intentions it is reasonable or rational to impute to actors or
legal subjects. Therein lies the craft, one might say, of the law,

and there is nothing new about this. Social scientists making
use of interpretive procedures are increasingly concerned with
understanding or uncovering the logic of individual and social
action, including motivations, aspirations, and intentions, and
they use concepts like culture, horizon, context, and situation
to help render these intelligible. These social scientific ambi-
tions are not new, but a combination of background factors
(e.g., postcolonialism) and increasing sophistication in
formulating these components means that interpretation has
lost what innocence it ever possessed, and that the kinds of
protocols employed by lawyers whenever they need to
concern themselves explicitly with actors rather than texts are
increasingly divergent from the highly reflexive methods now
required of social scientists. Indeed, legal self-understandings
have come to look to these interpretive disciplines for some
corrective to what are increasingly perceived to be deficiencies
in epistemic capacity and practical deliverability within the
legal world itself. The sharpest symptom of this (although
appearances can sometimes deceive) is the rapid rise to
prominence in policy making, especially in the Anglo-
American common law world, regarding the adjudicative
process of alternative dispute resolution, an approach to
conflict resolution that has unambiguous roots in 1950s
colonial and postcolonial anthropology. One example can
perhaps serve as a sharp reminder of how far apart in some
respects the preoccupations of the law and of modern inter-
pretive social sciences have become. For the law, an axiom of
prudence and indeed an operational condition of possibility
has more or less forever been the postulate that ‘ignorantia juris
haud excusat’ (lit. ‘ignorance of the law does not excuse’).
Contrast this with the role that ‘docta ignorantia’ (learned
ignorance) played in Bourdieu’s not-quite-Marxist sociology
of domina-tion (Bourdieu, 1980). Axiomatically, the law
disregards what people claim they do not know (based on the
suspicion that such disclaimers are easy to make and dubious
in the first place – a protocol rooted in skepticism, in other
words). By contrast, Bourdieu perhaps led the contemporary
field in focusing on a modern version of Marxist false
consciousness, detached from economic determinism as such,
but emphasizing the prison-house of cultural schemes that
prevent people from knowing what they do. What for the law
is something to be ignored is for the social sciences something
to be explored. For the law, ignorance is sterile; for social
sciences, it is productive.
Law and the Empirical Social Sciences
What is surely unambiguous is the relationship between law
and the development of the empirical social sciences, espe-
cially to the extent that these sciences are underpinned by the
burgeoning of statistical knowledge and growing sophistica-
tion in statistics-gathering methods and techniques. Yet this
contains within itself new ambiguities. Specifically, at least at
the level of images of truth and the supporting rhetoric or
legitimation strategies available to science, it is noticeable how
a number of writers from the side of science – including
natural science – seek to invoke the image of the law court or
some of its components – notably, the jury – as the central
Law: History of Its Relation to the Social Sciences 587
basis for the image of truth or of what it means to claim
validity for scientific statements. Trial by your peers has much
ideological resonance, especially in North America; but
whether it is more than a cultural theme or idiom is a more
intricate question that requires explicit if not detailed discus-
sion here.
The metaphor of scientific truth as something resolved in
a court of appeal in which the judges or jury decide following
adversarial confrontation is a powerful and longstanding one
in Western thought, albeit one that is by no means universal
(see Lloyd, 1996; Needham, 1969). While it is not the same
idea, it dovetails with the notion of truth as a matter of a gen-
tlemen’s agreement (Shapin and Schaffer, 1985; Shapin, 1994),
which in turn rests and relies upon the presence of implicit
paradigms that are not themselves usually open to inspection
or discussion (Kuhn, 1970; Foucault, 1966). Yet all of this
perhaps amounts to little more than the recognition that truth
is contestable and the claim that scientific practice has devel-
oped – or has always possessed – procedures for resolving
epistemic conflicts that arise in the natural course of scientific
discovery and invention.
These metaphors of judgment (whether by judges or juries)
draw upon the experience of the world of law but do not in
reality replicate it. It is interesting to note that they appeal
rather more to the common law adversarial style of legal
argumentation in the courtroom than the so-called inquisito-
rial style of the European codified tradition. But whatever
precise analogy is used, it runs the risk of obscuring the
important and significant gulf that opens up in the modern
world between legal science – or the practice of adjudication –
and empirical social science.
The most significant here is revealed in the distinction
between the level of the individual (for lawyers, a ‘subject,’ and
for many social scientists, an ‘actor’) and the aggregate or
collective (‘society’). The law has been and remains concerned
with disputes between individuals, with the attribution of
liability to individuals, and with the language of individual
responsibility. All of this requires a focus, much of the time, on
individual mental states, on postulates about what these can be
taken to be or how they can be sensibly understood – or on
appeals to ‘ordinary people’ to use their own experience of life to
decide what they believe or disbelieve in the claims about such
matters made by the parties in court. Judges operate within
a similar framework, although they bring to their decision
making the added rigmarole of professional training and/or
experience with previous kinds of problems or disputes in
a forensic setting. In other words, legal schemes combine two
types of individualism – the individual as decision maker
relying on his or her experience and capacities to draw analogies
from this reservoir of experience in order to make decisions, and
the individual as the object of decision, as a person who can be
assumed to be like or not like the person asked to make a judg-
ment, in matters relating to responsibility for events or actions.
The law, therefore, struggles with supraindividual entities like
corporations, states, nations, and cultures. Can a corporation be
made liable for manslaughter or culpable homicide? This indi-
vidualism of the law extends beyond persons and into events. A
typical legal scenario, for example in the field of tax avoidance, is
the problem of deciding whether a chain of events is to be
understood as a multiplicity of individual events or as
588 Law: History of Its Relation to the Social Sciences
a composite (‘quasi-individual’) event. For lawyers, these are not
simple questions.
Empirical social science, by contrast, is preoccupied, at its
most subtle, with the often perplexing relationship between
‘micromotives’ and ‘macrobehavior’ (Schelling, 1978). Corre-
spondingly, individualization of events is of much less (if any)
interest than patterns, tendencies, logics, and trends. Critical to
these perspectives are perhaps two modern capacities –
measuring and modeling. And underpinning these new
epistemic possibilities are modern notions of probability and
of statistical thinking that diverge sharply from the traditional
idea of probability still largely at work in the ideational
schemes of the law (Hacking, 1975; Porter, 1986; Gigerenzer
et al., 1989; Murphy, 1997).
These developments challenge legal schemes of reality. They
create a reality through practices and procedures that are
remote from the mechanisms through which law constructs ‘its’
truth. Surveys, data analysis and number crunching, the
quantification of the qualitative (and the very emergence of an
explicit distinction between these two, and the consequent
problematization of the relationship between them), and
probabilistic judgment – all these epistemic practices are
quite different from the argumentative, judgmental, and
commonsensical manner in which law decides what is true.
Even before this became obvious, there were pressures upon
law to acknowledge what was changing and to incorporate into
itself the findings or the protocols of social science (most
famously in the so-called Brandeis brief in the United States, in
which statistical information was introduced into court as part
of the case). In modern US and UK laws, for example, a concept
of indirect discrimination has been introduced, which makes it
unlawful to discriminate not just intentionally but also by
applying to, for example, job applicants a requirement or
condition with which members of the protected group –
principally race or sex, but these definitions can be expected
to expand over time through new legislation – are dispropor-
tionately unable or less able to comply. This kind of formula-
tion inevitably invites the introduction of statistical data into
the forensic setting. Other outputs of modern social and
behavioral sciences increasingly find their way into such
settings, notably in criminal law and family law. Social inquiry
reports for offenders before sentencing, or all manner of inputs
on child welfare, have come to play a role in the way that cases
are disposed of in the areas of sentencing and child custody
disputes. It is also increasingly the case that the output of the
social sciences plays a role in the evaluation of current law, and
generates critique, proposals for new legislation, and argu-
ments for changes in the outcomes of judicial decision making.
These kinds of developments lead some observers and
commentators to discern a historical process at work in which
the legal sphere steadily succumbs to the influences of the
social and behavioral sciences. Foucault’s thesis about
normalization and disciplinary power (Foucault, 1975), for
example, can be read in this way (see also Donzelot, 1977).
Others stress, rather, the rise of differentiation. Among many
legal theories if not social theories, one of the most influential
has been the function-systems theory of Niklas Luhmann
(1984). At its simplest, what is at issue here is whether the
‘worlds’ of law and of social science are converging, merging,
or pulling further apart. The answer is probably that both
tendencies are simultaneously visible. Convergence, of course,
now means the ‘colonization’ of law by social science, and this
is most likely to occur in the area of individual and especially
cognitive psychology. In the future, we can anticipate that
genetics will play a greater role here. But pulling in the
opposite direction are strong tendencies toward the assertion
of legal autonomy, in the international as well as national
and subnational spheres. As often in the previous history
of law, legal thought often proceeds ahead of successful
institutionalization, while without the latter the former
remains stuck in the ebb and flow of opinion and fashion.
However, to the extent that this tendency toward autonomy is
becoming a ‘reality,’ it potentially means that the pre-social-
scientific epistemic schemes of the law will succeed in
extending their life and even consolidating their position into
the future, disregarding the findings of social science on the
grounds of increasingly abstract principle.
See also: Critical Legal Studies; Hermeneutics, History of; Law
and Society: Development of the Field; Law as an Instrument of
Social Change; Law: Anthropological Aspects; Legal Process
and Social Science: United States; Social Science, The Idea of.
Bibliography
Bourdieu, P., 1980. Le Sens Pratique. Les Editions de Minuit, Paris (1990. The Logic
of Practice. Polity, Cambridge, UK).
van Caenegem, R.C., 1987. Judges, Legislators and Professors: Chapters in European
Legal History. Cambridge University Press, Cambridge, UK.
Clifford, J., Marcus, G.E. (Eds.), 1986. Writing Culture: The Poetics and Politics of
Ethnography. University of California Press, Berkeley, CA.
Comaroff, J., Roberts, S., 1981. Rules and Processes: The Cultural Logic of Disputes
in an African Context. Chicago University Press, Chicago, IL.
Donzelot, J., 1977. La Police des Familles. Les Editions de Minuit, Paris (1979. The
Policing of Families: Welfare Versus the State. Hutchinson, London).
Foucault, M., 1966. Les Mots et les Choses: Une Archéologie des Sciences Humaines.
Editions Gallimard, Paris (1970. The Order of Things: An Archaeology of the Human
Sciences. Tavistock, London).
Foucault, M., 1975. Surveiller et Punir: Naissance de la Prison. Editions Gallimard,
Paris (1977. Discipline and Punish: The Birth of the Prison. Pantheon, New York).
Foucault, M., 1976. La Volonté de Savoir. In: Histoire de la Sexualité, vol. I. Editions
Gallimard, Paris (1979. An Introduction. The History of Sexuality vol. I. Allen Lane,
Harmondsworth, UK).
Gadamer, H.-G., 1965. Wahrheit und Methode, second ed. J. C. B. Mohr, Tübingen
(1979. Truth and Method, second ed. Sheed and Ward, London).
Geertz, C., 1973. The Interpretation of Cultures. Basic Books, New York.
Geertz, C., 1988. Works and Lives: The Anthropologist as Author. Stanford University
Press, Stanford, CA.
Gigerenzer, G., Swijtink, Z., Porter, T., Daston, L., Beatty, J., Krüger, L., 1989. The
Empire of Chance: How Probability Changed Science and Everyday Life. Cambridge
University Press, Cambridge, UK.
Goodrich, P. (Ed.), 1997. Law and the Unconscious: A Legendre Reader. St. Martin’s
Press, New York.
Hacking, I., 1975. The Emergence of Probability. Cambridge University Press,
Cambridge, UK.
Hacking, I., 1990. The Taming of Chance. Cambridge University Press, Cambridge, UK.
Hart, H.L.A., 1961. The Concept of Law. Clarendon Press, Oxford, UK.
Kelley, D.R., 1990. The Human Measure: Social Thought in the Western Legal
Tradition. Harvard University Press, Cambridge, MA.
Kuhn, T.S., 1970. The Structure of Scientific Revolutions, second ed. University of
Chicago Press, Chicago, IL.
Lloyd, G.E.R., 1996. Adversaries and Authorities: Investigations into Ancient Greek and
Chinese Science. Cambridge University Press, Cambridge, UK.
Luhmann, N., 1981. Politische Theorie im Wohlfahrtsstaat. Olzog, Munich, Germany
(1990. Political Theory in the Welfare State. Walter de Gruyter, Berlin).

Luhmann, N., 1984. Soziale Systeme: Grundriss Einer Allgemeinen Theorie. Suhr-
kamp, Frankfurt am Main, Germany (1995. Social Systems, Stanford University
Press, Stanford, CA).
Murphy, W.T., 1997. The Oldest Social Science? Configurations of Law and Modernity.
Oxford University Press, Oxford, UK.
Needham, J., 1969. The Great Titration: Science and Society in East and West. Allen
and Unwin, London.
Porter, T.M., 1986. The Rise of Statistical Thinking 1820–1900. Princeton University
Press, Princeton, NJ.
Rorty, R., 1979. Philosophy and the Mirror of Nature. Princeton University Press,
Princeton, NJ.
Rose, G., 1984. Dialectic of Nihilism: Post-structuralism and Law. Blackwell, Oxford, UK.
Law: History of Its Relation to the Social Sciences 589
Schelling, T.C., 1978. Micromotives and Macrobehavior. Norton, New York.
Shapin, S.A., 1994. Social History of Truth: Civility and Science in Seventeenth-Century
England. Chicago University Press, Chicago, IL.
Shapin, S., Schaffer, S., 1985. Leviathan and the Air-Pump: Hobbes, Boyle and the
Experimental Life. Princeton University Press, Princeton, NJ.
Simmonds, N.E., 1984. The Decline of Juridical Reason: Doctrine and Theory in the
Legal Order. Manchester University Press, Manchester, UK.
Smalley, B., 1983. The Study of the Bible in the Middle Ages, third ed. Blackwell,
Oxford, UK.
Turner, S.P., Factor, R.A., 1994. Max Weber: The Lawyer as Social Thinker. Rout-
ledge, London.