SOCIO-LEGAL THEORY:

SOCIAL STRUCTURE AND LAW

TIIErelationship of the law, in its many aspects, to a social situation,
should be considered a necessary part of the understanding of that
situation. The development of forms of analysis which allow for such
interrelated understanding are therefore required.
According to a socio-legal approach, analysis of law is directly linked
to the analysis of the social situation to which the law applies, and
should be put into the perspective of that situation by seeing the part
the law plays in the creation, maintenance and/or change of the
situation. It has been argued that the legal structure, because of its
nature and the social functions it serves, requires a different form of
analysis from other social institutions. However, it is not thereby
removed from the analysis, despite the often abused distinction of
laws as normative, and of social science method being therefore
inapplicable. The requirement is simply a different approach, based
on the need to ask different questions. The most advanced example
of this is perhaps the Scandinavian “ Law as Fact ” Schoo1.l The
normative being treated “ a s a distinct kind of ‘is”’ for research
purposes.
One of the many problems in this area is that of coherent theory.
This article argues that it is traditional legal science which, by con-
tinued adoption of false starting points, has caused this theoretical
study to remain under-developed. As such the reasoning on which
this paper is based is epistemological, and whereas positivist functional
models will be used as illustrations of the various approaches analysed.
it is a phenomenological understanding of the study of law in society
that is being developed.
A socio-legal approach is conceptually distinguished from more
positivistic approaches; the whole emphasis, the reason for it and its
meaning cannot and should not be linked to other approaches. It does
not disclaim other lines of thinking, but, it is considered, establishes
alternative ones. The conceptual difference requires both distinct
theoretical assumptions and a new methodology. Moreover, the
methodology in this context must always remain in critical perspective,
indeed. it must be seen as part and parcel of any research project.
According to a socio-legal approach to any particular legal research.
how one conceives of the “law” is part of the research method.
Austin’s delinition of law can only be reasonably criticised if account
is taken of the purposes for such a d e f i n i t i ~ n . It
~ ’serves
~ no useful
K.
1 Particularly the writings of A, Hligerstrlim, Olivecrona and A. Lundstedt.
2 G. Sawer, Law 5.
in Society, 1965, p.
8 The Province of Jurisprudence Determined, 1832.
4 Based on the orgument that definitions are not absolute.
ti Many criticisms of Austin do indeed seem to neglect this fundamental point-in
particular R. W. M. Dias, Jurfsprudence, 1970, pp. 3 9 7 4 5 .
287
288 THE MODERN LAW REVIEW [Vol. 39
purpose to use it as a starting point for any research, if one’s aims are
different, as this will lead to many anoma1ies.O The essential relativity
of truth and knowledge requires the continuous re-examination and
re-definition of theory and method, which retention of existing defi-
nitional frameworks cannot give.’ Use of the conventional and accepted
characteristics of law, as enunciated by numerous writers on legal
subjects, is not satisfactory; rather the orientation of the socio-Iegalist
requires these common rcsources to be part of his research topic. In
the field of criminology, the symbolic interactionists have used this
reversal of resource and topic as a basic method. The resources used
by criminologists at earlier stages were often the official figures and
statistics of crime rates, etc. The symbolic interactionist approach
considers these resources the main focal point, i.e. the topic, of their
study.
‘‘ Instead of using official estimates of volume and distribution
as a basis for a fitting theory of deviation, the neo-Chicagoans
used the estimates themselves as a topic for speculation and
explanation.”
Another example of this method, which is particularly pertinent,
can be taken from R. D. Laing and A. Esterson in their book Sanity,
Madness and the Family,O where on page 13 they argue:
“ . . . those sociologists who think they can find out what goes
on by analysing medical records are merely trying to turn clinical
sows’ ears into statistical silk purses. If they think they are
studying anything other than pieces of paper they are only
making fools of themselves.” lo
To make the comparison between these “ medical records ” as “ pieces
of paper,” and Llewellyn’s distinction of “ paper rules ’’ (i.e. the
pieces of paper) rather than “ real rules ” l1 is not too far-fetched,
and quite enlightening. Certainly there is a tendency in most subjects
to deify anything official, rather than consider official definitions,
beliefs and accounts as part of the subject-matter to be researched.
In addition to the analysis of resource as topic, no theorctical
structure should be established which goes beyond or outside the
scope of the particular research. For in terms of that research, that
0 The theory behind G. Ryle’s book Concept of Mind (1949) is illustrative of this.
7 As to “ relativity ” see K. Mannheim, Ideology and U f p i a (1969). p e arguments
;re all sct out by Mnnnheini. and although he claims relationism nther thnn
relativism,” most commentators agree thnt this is no more thnn a “ play on words.”
(See W. Stark, The Sociology of Knowledge, 1958.)
8 D. Mntm, Bf,coming Deviant (1969) p. 82. Particularly the work of A. Cicourel
and J. Kitsuse, A Note on the Uses of Official Statistics,” Social Problems 2,
Autumn 1963, and H. Becker, Outsiders (1963) should be mentioned.
0 1964.
10 See H. Garfinkel, Good Organisationul Rearom for Bad Clinical Records in
Studies in Ethnomethodology (1967). This conception of resource ns topic is basic to
ethnomethodology. Pauline Schiff’s explanation of this and other sociological concepts
was invaluable.
11 K. Llewellyn, “ A Realistic JurisprudencbThe Next Sbp,” 30 Columbia
Review, 1930.
May 19761 SOCIO-LEGAL THEORY: SOCIAL STRUCTURE AND LAW 289
conception of law is required, that conception of the administration
of law, that conception of how law can be related to a “social
situation.” For example, one research project might deem it necessary
to analyse law in terms of its practical administration, and where the
terms of statutes are contrary, their significance is considered to be
of a quasi-legal nature.l* This, turning the standard definitions of
law and quasi-law upside-down is justifiable in socio-legal terms, if
the aims of a socio-legal approach are not merely descriptive, but to
establish the part that law and the legal system and structure play in
the creation, maintenance and/or change of social situations.18 This
approach to the dynamics of law is sometimes termed “ law in action ”
research. The emphasis has, shifted to legal administration and its
consequences, concerned as much on the civil as on the criminal side.
For these purposes. which sociological analyses referring to the
workings of the law within society can be adopted? Certainly two of
the founding fathers of sociology, Weber and Durkheim, were con-
cerned with issues of jurisprudential interest. Chapter 8 of Volume 2
of Weber’s Economy and Society deals with Economy and Law (the
Sociology of Law). Although not a systematic sociology of law, his
writings contribute significantly to the understanding of legal thought
and the judicial process.14 The detailed analysis of the sociology of
law by Durkheim, giving it an important place within sociology.
developed “ the inquiry into the correspondence between differences
in social structure and differences in the law arising from those
structures ” and was centred on functional institutional analysis “ the
mutuality of support and adaptation between institutions in a given
society.” l6 However, jurisprudence writers in general, have tended
to show a lack of concern for an analysis of the structure of society
which accounts for the workings of the legal systems, national and
international, within the perspective of a socio-legal approach.’” In
Social Dimensions of Law and Justice Julius Stone devotes a
section to Parsons’ theory of social systems, which he asserts “has
special merit for the theory of law in that it amplifies, and states
more universally, important aspects of the sociological jurisprudential
12 See above Llewellyn’s “ paper,,rules ” and. real rules ”; ak o Ehrlich’s “ living
law ” as distinguished from mere legal provisions “-E. Ehrhch, “ The Sociology
of Law,” 36 Hurvurd Law Review, 1922. Note also Gray’s distinction between
“ law ” and the ‘‘ sources of law,’’ The Nurure and Sources of Law (1916).
18 ‘ I In planning any program for research in judicial administration, room must
be found for such grent issucs as these: how can law and legal institutions be
kept in touch with contemporary social needs and aspirations? What means arc at
hand to keep law’s prescriptions reasonably responsive to prevailing social norms?
How can law bc made most effectivc as a forcc for social stability, progress, and
public enlightenment? ” H. W. Joncs, ‘ I Law and the Bchavioural Scicnces: The Case
for Partncrship,” 47 Journal of the American Judicature Society, 1963. pp. 109-114.
1 4 Economy and Society, edited by G . Roth and C. Wittich, 1968. For an analysis
of Wcber’s sociology of law and concept of law, see M. Rheinstein’s Introduction to
Max Weber-Law and Economy in Sodefy (1954).
16 J. Stone, Law and rhe Social Sciences in the Second Half Cenfury, 1966, p. 12.
For a short analysis of Durkheim’s, Sociology of Law see later.
16 Dcvclopments from Weber and Durkheim have tended to be haphazard, e.g.
L. Duguit, E. A. Ross and E. Ehrlich.
290 THE MODERN LAW REVIEW [vol. 39
standpoint. . . .” l7 Later, however, he has to admit that Parsons took
little account of jurisprudential knowledge la; and the value of basing
socio-legal research on his theoretical notions is accordingly reduced.
Surely. one can turn to socio-legal interactionist theories. specific
enough to be relevant to socio-legal research, and yet sufficiently
justifiable in general sociological terms. F. James Davis in 1957
surveyed the sources of law in American sociology,19 finding only
four books published on the sociology of law in the United States-
those of Ehrlich, Timasheff, Gurvitch and Weber. Again, the most
advanced devclopments seem to be Scandinavian, V. Aubert and
T. Eckhoff being prominent.20Without undertaking a comprehensive
survey of jurisprudence, human philosophy and sociological and
political theory necessary to answer the question as to the adequacy
of socio-legal theory, it is tentatively suggested that there appears to
be insufficient theoretical concern. The American realists demonstrate
such lack of theory by the extreme limits of their programmes (with
the exception of Llewellyn). Sociological jurisprudence illustrated by
the main exponent Pound, apart from demonstrating some basic focal
points of which socio-legal research must be aware (e.g. the distinction
between professed and actual law. the notion of “ law in action.” the
theory of interests and emphasis on social relations of law rather than
metaphysics), nevertheless is hardly satisfying in terms of a general
theory whereby the law, legal system and structure can be related to
society, societal structure, individuals and groups in society. In the
recent study of the sociology of law in Germany by Raiser 21 a similar
estimation is made, despite analysis of the theories of Marx, Ehrlich,
Weber, Geiger, Luhmann and Schelsky. Furthermore. the present day
revival of natural law is distinctly sociologically oriented which
is evidence of the paucity of existing socio-legal 23

There are no doubt many reasons for the postulated “ theoretical

vacuum ” : compIexity, Iack of disciplinary interchange, shortage of
persons who 6nd this subject sufficiently relevant, the isolation of the
legal academic as well as the lawyerz4 (which can to an extent be
1 7 D. 17. See also T. Parsons. “The Law and Social Control,” in W. M. Evan.
Law and Sociology, 1962, pp. 56:72.
18 Ibid. p. 23.
19 F. James Davis, The Treatment of Law in American Sociology, Sociology and
Social Research, 1957, p. 99.
20 See V. Aubert (ed.) Sociology of Law, 1%9. V. Aubert, “ Some Social Functions
of Legislation,’’ Acta Sodologica, Vol. 10, 1966, pp. 99-110. T. Eckhoff, Sociology
of Law in Scandinavia, Scandinavia?, Studies in Law, 1966, pp. 29-58. Britt-Man
Pcrsson Blcgvad has nnalysed the systematic position of sociology of law in
current Scandinavian research,” in Vol. 10, Fasc. 1-2, Acta Sodologica, pp. 2-17,
1966. the contents of which volume are based on contributions to the sociology-. of
law.
2 1 T. Raiser, Einfilhrung in die Rechtssoziologie (1973). I would like to thank
Leo Schiff for his translation.
22 For example, P. Sehick, Sociology and Natural Law, in J. Cogley ef al.,
Natural Law and Modern Society (1963).
2 3 For a general review of sociological/jurisprdential interchange see E. Schur,
Law and Society (1968),,hap. 1, Jurisprudence and Sociology.
24 See D. .Reisman, Law and Sociology: Recruitment, Training and Colleague
ship,” in W. M. Evan, op. cit. pp. 12-55.
May 19761 SOCIO-LEGAL THEORY : SOCIAL STRUCTURE AND LAW 291
justified by their professional needs). Nevertheless a further reason
will be developed in some detail, being connected to the analysis of
the inter-dependence of theory and method.

THEORY AND METHOD

The lack of an explicit theoretical perspective gives to any particular
research the dubious nature of its being built on unsound hypotheses.
Jurisprudence has concentrated on normative, analytical approaches
with the result that other lines of inquiry have been excluded from
legal research. The preoccupation with defining law has, in effect,
limited the questions asked about law. This analytic mode of research
tends to highlight questions of “ validity ” as opposed to “ function,” 26
and the lack of theoretical concern on questions of function is a
major stumbling block to research outside the area of validity.
Questions of efficacyz0 in jurisprudence tend to go no further than
some very basic assumption^.^^ and perhaps the limited jurisprudential/
sociological interchange can be seen as a primary reason for this, the
works of Weber and Durkheim being noted exceptions. However, it
it likely to be claimed by some that the reason for this emphasis is,
in essence, the nature of “ law ” itself, namely that it is according to
the characteristics of “ law.” that legal research must be carried out
pursuing specific methodology. The question which however arises
is. which comes first, the research method as required by the charac-
teristics of “ law.” or “ law ” as established according to the particular
research method. Equally, it can be argued that the cart and the horse
rather than coming one before the other are in fact part of a whole
unit, the weight of the cart determining the pull of the horse. and the
strength of the horse effecting the speed. In sociological theory dispute
in this area is considerable.
“ Merton suggests that theory is of greater value than methodo-
logy. He further suggests that methods as such have little. if
any, substantive theoretical content. From Merton’s perspective
methods are ‘ a-theoretical ’ tools suitable for any knowledgeable
and skilled user. This position . . . contrasts with Blumer’s
(1931,40. 54. 56). . . . From his perspective the study of methodo-
logy demands a consistent theoretical perspective; theory and
method must go hand in hand.” 28
The theoretical area of interest to be developed here is that of law
and social structure. The methodological questions which require
consideration are concerned with the ways in which this theoretical
approach has been considered.
Theory and method, as argued above, go hand in hand, each deter-
~~~~ ~~~ ~

See H. W. Jones, The Eficucy of Law, 1%9.

26
Efflcacy is only a narrow question within the analysis of function, sce later.
28
I would like to thank Dr. Simon Roberts for making this clear and for a number of
other valuable points.
27 e.g. in terms of Austin’s “ habit of obedience ” or Kelscn’s minimum effective-
ness as a condition of validity of a legal norm.
28 N. K. Denzin, The Research Act in Sociology, 1970, p. 4.
 292 THE MODERN LAW REVIEW [vol. 39
mining the province of the other. Methodological distinctions will be
examined first. Theory and method being themselves the resources of
this article.
Intcrpretations of law incorporating sociology or sociological con-
ceptions are seen to be either invalid or in conflict with the majority
of traditional legal theories. The realm of law is concerned with the
world of “ ought,” that measure or standard for human behaviour
and not the causal “ is.” Is an interpretation of law in terms of “ is ”
therefore possible? According to the theory and methods of analytical
positivism it is not. But those theories and methods do not answer the
following qucstions: (1) What is the effect of law and the legal order
on the social order? (2) What is the effect of the social order on thd
legal order? (3) What is the effect of law on attitude, behaviour.
institutions and organisations in society, maintenance and change of
society, and (4) what is the effect of attitudes, behaviour, institutions
and organisations in society, maintenance and change of society on
law?
A thcory of law is independent of the social order according to the
methodological assumptions of that theory, i.e. that law is normative
and has its own existence. Whilst a theory of law is dependent on the
social order according to the methodological criteria adopted, i.e. law
is a phenomena within society.2gWithin the context of the dependent
and independent realms of law there exist distinct methodological
interrelations. A theory of independent legal phenomena can itself
depend on a juristic hypothesisSo(a complete vacuum for law) or a
total political power (sovereignty theories). A theory of dependent
legal phenomena can itself be divided into analyses of law as secondary
forces dependcnt on existing social structures (Durkhcim) social
controls (Ehrlich) and social systems (Parsons). Law,in functionalist
terms, can be considered to play a primary role in the shaping of
other social criteria or a secondary role as being shaped by those
criteria.
The functional interdependencies of the social system have been
made apparent by many sociologists and others. As Julius Stone says :
“ . . . it seems clearer now than it was in 1945 that movements
of thought and action touching the relations of law and society.
in so far as they move into fruitful contact with other social
scicnces, must come to place more stress op the importance of
cognition of the social and economic order in Its complex unity.”
Later, in the same article (pp. 176-177) Stone argues that:
29 Whether or not such dependence ” theories of law lend to the denial of the
identiflable existence of law, is in dhpute, in the particular theories involved. Stone.
in Social Dimensions of Law and Justice, 1966, pp. 412479, considers,,Comtc’s
Mechanical Sociology, Spencer’s Social Evolutionism, Socialist Theory of Wither-
ing Away ” of the State, merger of law in ‘‘ Facts ’’ of Social Solidarity, Anarchist
rejection of legal force and a Legal Order as a mere aspect of the life of a social
institution.
30 Kelsen.
81 1966 Israel Law Reyiew I at p. 176, The Age of Roscoe Pound.
May 19761 SOCIO-LEGAL THEORY : SOCIAL STRUCTURE AND LAW 293
“ N o doubt some problems will continue to be thrown up for
which the ad tioc approach of early sociological jurisprudence,
making direct legal assault on the points where maladjustment is
immediately manifest, is apt. But the sociological jurist of the
future will generally have to approach his characteristic problems
through a vast effort at understanding the wider social context,
seeking by the light of available social knowledge the key-points
of the systcms of action from which adjustment can be effectively
made.”
This article attempts to propagate “ the wider social context,” it
attempts to utilise “ available social knowledge ” and illustrate the
various “ key-points of the systems of action,” by correlating the
distinctive theoretical and mcthodological approaches of the lawyer
looking to the social relations of law and the sociologist looking to
the social system of which the law is a part; in the light of theories
of law and social structure.
As suggested above, a theoretical understanding of law in society
can be viewed from many angles. which are to be symbolised as the
lawyer looking to the social relations of law (sociological juris-
prudence) and the sociologist looking to the social system of which
law is a part (sociology of law). It should be noted that the dividing
line is arbitrary in terms of personnel (i.e. the lawyer turned sociologist
-Weber, Aubert, or sociologist turned lawyer, has no recognised
place), although not necessarily arbitrary in terms of methods (see
explanation later). Further, as far back as 1911 when Roscoe Pound
was formulating his “ Scope and Purposes of Sociological Juris-
prudence ” 82 he suggests a certain unity between the approaches dis-
tinguished, which is considered to be, regretfully, even more untrue
today than in 1911. Further. a number of attempts have been made
to delimit the various areas of study of law in society which impose
different or distinct criteria, which may or may not conflict with the
present distinction. These analyses (see Gurvitch. Ekhoff, Timasheff,
Sawer. etc.) have their own merits but do not accord with the purposes
of the present article and are therefore not included within the require-
ments of the distinction made between sociological jurisprudence and
sociology of law. Maybe one such attempt should be mentioned now.
Timasheff analyses the sociology of law as the scientific causal study
of law (a monographic science), sociological jurisprudence as an
idiographic science and philosophy of law as the valuation of such
scientific study, i.e. “ The sociology of law will procure the best means
to the ends; but ultimate ends will forever depend on philosophical,
and not on scientific considerations.” 35
The loose nature of the present distinction suffices to enhance the
primary methodological differences in approach. As will no doubt be
apparent, the theory on which this article is based pays paramount
attention to such methodological differences.
32 (1911), 24 Harvard Law Review 591; (1912). 25 Harvard Law Review 489.
83 N. S. Timasheff, An Infroduction fo the Sodology of Law, 1939, p. 30.
294 THE MODERN LAW REVIEW Pol. 39
A Conceptual Sociology of Lav can be interpreted as the con-
struction of social reality inclusive of legal reality.
The methodology of a sociology of law does not start with the
primacy of legal rules. nor with rules as such, or laws or a legal
The methodology is determined by an initial understanding
of society, of the social system. The aim being to analyse social
structures and social institutions, law being one such institution (there
are clearly many others). Law institutionalises a particular type of
..
rule or norm in society. " . the contents of prevalent social norms
receive by institutionalisation a peculiar coercive force-raising them,
as it were, to the distinctive modality of legal bindingness." 35 This
institutionalisation places such rules or norms on a particular level
of abstraction within society, and they interact with other norms or
rules of an informal rather than an institutional kind. However (just
as with an initial understanding of sociological jurisprudence), it is
necessary that the alternative definitions of this area of study be
pointed out, on two levels. First, with regard to other definitions
given by various writers?" maybe the example of Timasheff can again
be used. He considers the sociology of law to be the scientific study
of law, i.e. causal investigation of the relationship between behaviour
in society and law. Secondly, from a sociological point of view it is
important not to over-objectivise the sociology part of the sociology
of law. There is (as this whole article attempts to show) no standardised
philosophy (theory or method), nor epistomology for sociologists,aT
as there is none for the branch of study of law in society. With this
rider, sociology. as highly differentiated as its varied forms may take,
does have some underlying assumptions relevant to a sociology of
law, whereby a normative system and social institution such as law
can be studied using the methods of sociologists, e.g. the functional
correlations that are thought to exist between the institutions and
structures within a given society include that society's legal system.
Two aspects of a sociology of law need to be distinguished: (a)
legal sociology and (b) general sociology with implications for law.
(a) An empirical legal sociology would tend to apply to the socio-
logical study of specific legal phenomenon, e.g. specific legal situations
or the social relations associated with certain legal rules. Thus the
personnel of the law can be studied, lawyers, judges. the jury. the
officials of a legal system. Specific legal situations can be observed,
such as the court room, the solicitor's office, the jury room. The
84 As Hart's does, in his " essay in descriptive sociology," The Concept of Law;
1961.
86 J. Stone, op. cit. p. 470.
8" e.g. R. Pound, " Sociology of Law and ,piOlogicd Jurisprudence," (1943) 5
University of Toronfo L.J. 1; N. S. Timasheff, What Is ' Sociology of Law,' " 1937,
43 American Journal of Sociology, 225; N. S . Timasheff,.An Introduction to the
Sociology of Law, 1939; G. Gurvitch, Sociology of Law, 1947; G. Sawer, Law in
Society. 1965 chap. 2; T. Ekhoff, Socfology of Law in Scandinavfa, 1960, Scan-
dinavian Studies in Law, 29.
ST Sea e.g. K. Thompson and J. Tunstall (ed.), Sociologfcal Perspectives. Intro-
duction, pp. 9-10.
May 19761 SOCIO-LEGAL THEORY: SOCIAL. STRUCTURE AND LAW 295
internal aspects of a legal system can be studied as a coherent system,
using sociological concepts and methods. But, this mechanical study
would tend to isolate the legal system and legal situations from the
society in which they function, as such it has only limited value
(although the areas and amounts of research are great). As Sawer
argues :
" The general body of principles of sociology, like the general

body of principles of logic, exists independently of law and

lawyers and their special interests. But law and legal behaviour
give rise to characteristic problems, even from the point of view
of the non-lawyer, and lawyers have their own special interests
in the possible relevance of sociological thought and technique
for their own problems."
(b) General sociology as applicable to law in society is predeter-
mined by the paramount interest of general sociology as the study
of society. The principles developed will apply to law according to
the importance/unimportance of law and the legal system to the
particular sociologist concerned. It is lpossible to give a number of
examples of sociologists who pay particular attention to law within
the broader context of their studies of society at large. Max Weber,
Emile Durkheim, Karl Marx and Eugene Ehrlich being of greatest
importance. Nevertheless it is necessary that a sociology of law should
glean from other theorists principles and concepts which although
not directly developed to satisfy an analysis of law in society, can
indirectly be seen to have such effects. The totality of sociological
theories and nothing less can satisfy a sociology of law.
A more thorough examination of the implications of this approach
to the area of study of social structure and law will follow later.

SOCIOLOGICAL JURISPRUDENCE
As an initial explanation it is suggested that sociological jurisprudence
is the purposive evaluation of legal rules and/or legal systems. The
primacy of legal rules is presumed, or at least that legal rules are
the starting point for the consideration of law in society. Attempts
at evaluating or relating such rules to various social or sociological
phenomeha are developed. Attempts are made to understand laws in
terms of interests or conflicts of interests within society. Typical
examples of research employing this methodology are: (1) considera-
tion of the postulates/interests in society and hence the postulates/
interests to which law necessarily must refer/relate/ take account
(2) efficacy studies which consider the effectiveness of rules for which
they are intended, for what they are not intended, for what latent
effects can result 40; (3) law in action research, i.e. the evaluation of
88 G. Sawer, op. dt. p. 14.
89 e.g. R. Pound, " A Survey of Social Interests" (1943-44) 57 Harvard Law
Review 1.
,fI.
4 0 e.g. W. Jones, The Efficacy of Law, 1969. Concern with questions of
" efficacy entails a rejection of the " Jurisprudence of Concepts." '' A jurisprudenw
of concepts is one which attempts to treat the law as a closed system of definitions,
296 THE MODERN LAW REVIEW [vol. 39
legal rules ,in accordance with the following study categories suggested
by Stone in Social Dimensions of Lao and Justice. The following
contrasts require study :
‘‘ (1) between what courts say and what they do; (2) between the
words of statutes and what courts do under them; (3) between
instructions to juries and what juries do; (4) between the formulae
for executive action and what executive officials actually do; (5)
between rules formulated for conduct on a matter by statute or
judicial decision or juristic writing, and the conduct of citizens
which actually occurs; (6) between the object assumed or expressed
by legislature or court in formulating a rule, and the actual
consequences which flow from observance of it; (7) between
‘facts’ as found by judges and juries on the issues raised in
adversary rocedures, which in the light of the applicable rule
determine %e results, and the ‘ true facts ’which do not emerge.” 4l
Additional, less general categories could .be added, but the preceding
suggested surveys should sufficea4*
All of these examples presuppose a basic knowledge of the law in
the area to be studied. Methodologically they aim at a study of law
from an assumption as to the distinct nature of legal phenomena in
contrast with other social phen~mena.’~ The rules and their presump-
tive nature must be known in order that their effectiveness can be
evaluated. Further all these approaches, utilitarian in essence, stem
from an “ apparent ” 44 view of the “ consequences ” of law,46rather
than a priori judgments about the law.‘O The idea of rule evaluation
is utilitarian in origin,47requiring data and research of a sociological
type. As with Bentham’s zeal for law reform, such research can be
seen to have played a paramount role in law reform movements,
based on the principal and characteristic ineffectiveness and mal-
adjustment of laws in Western dernocra~ies.‘~The basic idea of
purpose supports these approaches. Legal rules are seen as purposive
rules, not a-political, a-social, a-economic. Law, in Ihering’s words is
seen as “ a means to an end.”6o The concepts of evaluating and
engineering are relevant to law if social purposes are to be served,
and if certain ends are required.
rules of operation, and substantive major premises such that any specific legal
problem can be solved by deductive reasoning from the propositional system so
established.” G.Sawer, op. cir. p. 17.
4 1 Pp. 45-47.
42 See for index oP research, Stone, op. cir. Chap 1. s. 4, ‘‘Some main lines of
practical inquiry concerning law and society in common law countries,” pp. 41-71.
43 N.B. Ehrlfch would oppose this assumption-see analysis o P Ehrlich later.
4 4 ‘‘ Apparent,” e.g. Pound’s jural postulates, see h
is Jurisprudence (1959), Vol. 3.
4 6 Law being viewed as serving certain purposes or ends, sec particularly R. Von
Ihering, Law CIS a Means to an End, translated by I. Husik, 1913.
40 i.e. in terms of validity-natural law or positivist. See K. Olivecrona, Law CIS
Fact, 2nd ed.. 1971, Chaps. 1-3.
47 See J. Bentham, An In:roduction ro :he Principles of ‘Morals and Legislation,
Chaps. 1-5, ed. W. Harrison, 1948.
4s i.e. inability to cope with major problems such as slum nelghbourhoods,
ecology, delinquency, social disorganisation, etc.
4r1 Sea R. Von Ihering, op. cil.
60 ’‘ Der Zweck im Recht,” more literally translated as “ purpose in law.”
May 19761 SOCIO-LEGAL THEORY : SOCIAL.STRUCTURE AND LAW 297
It is more than a mere dispute over words that leads to the continued
reclassification and re-examination of the various approaches listed
above. As Karl Llewellyn remarked of Pound, the founding father
of sociological jurisprudence, his preference was “ for the study
of theory, verbalised theory, writer’s theory, over study of results,
or of how it gets done; over process and know-how either in the
concrete or in theory.” 61 The theory of this article, it is hoped, will
clarify the need for this preponderant concern with the theory and
method of law in society, being an area of study of developing
importance.
THEJURISPRUDENTIALBACKGROUND
In accordance with contemporary classification of the area of study
.of jurisprudence,62 inquiries into the law and legal phenomena are
threefold. Natural law philosophy searches for an Q priori legitimacy
for legal phenomena and involves studies into the ideas of justice.
nature, etc. Positivist legal philosophy involves the study of the identi-
fication of legal phenomena, their normative structure and validity
in human, if not empirical terms. Realist schools of legal philosophy
are concerned with the interpretation of laws in terms of social or
psychological facts, replacing the normative by the causal. Among
the realist developments is that of sociological jurisprudence. The
methodology of traditional jurisprudence in all its branches rests on
the existence of legal phenomena independent of their social contexts.
That is not to say that the realist arguments classify law as anything
more abstract than a set of social or psychological facts, but inasmuch
as their aim lies in enumerating those social and psychological facts
as equivalent to answering the question “ what is law? ” the answers
given are methodologically equivalent in many respects to the
answers of other schools of thought?s This might lead one to the
argument that the appropriate subject for study as jurisprudence is,
and only is, the manifest eccentricities of the question “what is
law? ” However, it must be pointed out that such an assessment is
highly arbitrary. The definition of jurisprudence, just as the defini-
tion of law knows no such illusory boundaries. Indeed, simple
relativist argument would defeat such a claim.
The principle which is expounded here is that an appropriate
question of jurisprudence is “what is society? ” just as much as
‘‘ what is law? ” The methodological differences emerge from this
starting point rather than any other as far as the differences between
sociological jurisprudence and sociology of law are concerned.
51 (1960) 28 University of Chicago L.R. 179.
52 N.B. the triology of books by J. Stone. Legal System and Lawyers’ Reasonings
.(1964), Human Law and Human Justice (1965), Social Dimensions of Law and
-Justice (1966).
5 3 “ Because of this divergence in methods, questions that are formulated as legal
questions cannot easily be dealt with in a social-scientific framework unless they nre
reformulated. The traditional jurisprudential question, * What Is law? ’ falls into this
category. To be answered in its own terms, it requires a plunge into ’ the illusion of
Teal essence’ (T. D. Weldon. The Vocabulary of Politics, 1955).” M . Barkun, Law
wfthout Sanctions, 1968, p. 3.
298 THE MODERN LAW REVIEW [Vol. 39
A NEW JURISPRUDENCE
“ What is society? ” is an appropriate question for jurisprudence since
the essential characteristics of the phenomenon we call law require
explanation, not independent from, but explicitly within their social
context.
The distinction between the realist branches and the subject of
“ what is society? ” as a branch of jurisprudence, lies in the starting

points of these two approaches. What previously was called the

“ sociological school ” including the works of the American realists

(Llewellyn, Holmes, Cardozo, Frank, etc.), the Scandinavian realists

(Hagerstrom, Lundstedt. Olivecrona, Ross) and sociological juris-
prudence (Pound, etc.) has as its starting point, if it is feasiblc to
generalise about the writings of so many great jurists and scholars,
reactions against the legal formalism of the positivist law theories.
The pragmatist sources of William James, John Dewey and S. C.
Schiller, the sociological influences of Auyste Comte and Herbert
Spencer, and the psychological influences of Sigmund Freud and Carl
Gustav Jung. are formative in the desire to study law as social/
psychological fact. The vast discrepancy between the formal logic of
the law and its social/psychological realities, and its theoretical
foundations as such, are highlighted by the aimed attack of this
“ sociological/realist ” school. The relief ends when it becomes
apparent that a new search has been invigorated by the rejection of
the “ legal rule ” in preference to a social, political or psychological
reality to which it is functionally equivalent. Even the scepticism of
a socio/psychological jurist such as Thurman Arnold ends up with
an answer to the question “ what is law ”.
“
Law ’ is primarily a great reservoir of emotionally important
social symbols, It develops, as language develops, in spite of, and
not because of, the grammarians. Though the notion of a ‘ rule of
law’ may be the moral background of revolt, it ordinarily
operates to induce acceptance of things as they are. It does this
by creating a realm somewhere within the mystical haze beyond
the courts, where all our dreams of justice in an unjust world
come true.” 6 4
The foundations of a new jurisprudence which starts with the
question “what is society?.” rather than contrasting the law (as
presumed) with the social reality. were laid by Max Weber, Emile
Durkheim, Karl Marx and Eugene Ehrlich. The developments in this
century have been scarce and arbitrary, but to some extent useful
hypotheses exist and can be examined. This is the sociology of law
taking general sociological theory as the starting point for jurisprudence
and its varied questions. Some knowledge of sociological theory is
therefore a prerequisite for jurisprudence, not an addition to it. some
understanding of society, social systems, social structures, social con-
trols and social institutions and associations are the backbone of a
54 T. W. Arnold, The Symbols of Government, 1962, pp. 34-35.
May 19761 SOCIO-LEGAL THEORY : SOCIAL STRUCTURE AND LAW 299
new jurisprudence. The writings here classified as a sociology of law
have, in the past, been taken by jurists to be part and parcel of a
general sociological approach to law.85 As such the starting points
and orientations of the writers who start with the question “what
is society? ” have been neglected in preference for the starting points
of those.who study ‘‘ what is law? ” as jurists looking to the social
relations of law. It is the unwillingness to break from the traditional
jurisprudential background that has led to the misuse and non-use of
sociology in jurisprudence. The following examination of theorists
such as Durkheim is necessary to rethink the development of socio-
logical thought for law, in themselves however the positivist school
of Durkheim and others offers no developed sociology of law, because
sociology has undergone vast changes in emphasis and theory since
their founding works. Nevertheless a sociology of law requires
examination of such works before it can be reasonably developed.
SOCIALSTRUCTURE AND LAW
“ . . . to see law in its social context is, for most thinkers to see
it as socially derivative and non-autonomous.”
The social derivations to be used here include Durkheim‘s. Ehrlich’s
.and Parsons’ sociological/functional conceptions.
DURKHEIM
In his work De la Division du Travail Social m Durkheim developed
an analysis of the correspondence between the social structure
of a given State and its legal structure. In chapter 1 he asserts
that :
‘‘ Since law reproduces the principal forms of social solidarity.
we have only to classify the different types of law to find there-
from the different types of social solidarity which correspond
to it.” O8
As such his central thesis is that a society’s law is an expression of
the kinds of solidarity which unite the members of that society. This
is a theory of structural functionalism. The two aspects of his thesis
which require consideration are (1) what does he mean by law? and
(2) what does he mean by ‘‘ social solidarity ”? Of (1) he argues that
“ I t is right . . . to classify juridical rules according to the different
sanctions which are attached to them.”80 There are two kinds of
juridical rules. Repressive sanctions which make up the penal law
.and “. . . the other type . . . consists only of the return of things
as they were.” eo i.e. restitutive sanctions, ‘‘ civil law, commercial
law, procedural law, administrative and constitutional law.” (2) Then
5 s See e.g. R. W. M . Dias, Jurisprudence, chap. 18 “ The Sociological Approach ”;
D. Lloyd, Infroduction to Jurisprudence, 1972, chap. 6.
68 J. Stone, Social Dimensions of Law and Justice (1966), p. 410.
87 On the Division of Labour in Society, translated by G. S i p s o n 1933.
88 Ibid. p. 68. 89 Ibid. p. 69.
00 Ibid. p. 69. 61 Ibid. p. 69.
300 THE MODERN LAW REVIEW [Vol. 39
follows, i.e. the type of social solidarity related to the two types of
law. By the “structure” of society, Durkheim means a certain
“ solidarity ” or “ cohesion ” among its members. The total relations

existing between the members of a given society are determined. to

a great extent, by existing social and economic conditions. Of this
structural idea, i.e. the “ solidarity ” of the members of a given society,
Durkheim demonstrates two distinct historical phases. (a) Mechanical
solidarity through likeness.
“The totality of beliefs and sentiments common to average
citizens of the same society forms a determinate system which
has its own life; one may call it the collective or common
conscience.” O 2
Durkheim argues that when such a “collective or common con-
science” exists, due to the sameness of wants, habits, beliefs and
attitudes of the members of a given society, the conditions of a society
based on “ mechanical solidarity ” are present. The homogeneity of
such a “common conscience” is demonstrated by the intensity of
group reaction to deviant or unaccustomed action. As Durkheim says
“ In effect, the only common characteristic of all crimes is that they

. .
consist . in acts universally disapproved of by members of each
society.” O3 As such the relationship between law and common morals
is direct:
“. . . we must not say that an action shocks the common
conscience because it is criminal. but rather it is criminal because
it shocks the common conscience. We do not reprove it because it
is a crime, but it is a crime because we reprove it.”
The law which Durkheim shows arises from such mechanical solidarity
which he regarded as characteristic of pre-feudal societies, was penal
and repressive and “ consists in a passionate reaction of graduated
intensity.” O8 In consideration of the sentimentswhich the crime offends,
i.e. the common conscience “ a simple restitution of the troubled order
would not suffice for us; we must have a more violent satisfaction.”
The argument Durkheim expounds of relating the repressive or
penal law to a society structured by “ mechanical solidarity ” is
self-supporting. Mechanical solidarity is based on the common con-
science, on homogeneity. Crime itself implies that such homogeneity
is not absolute, as such it damages the source for the authority of
repression. But, if repressive action were not recognised as dependent
on moral sentiment, that society and its values would be disr~pted.~’
Repressive laws are functional for a society whose structure is based
on mechanical solidarity:
“ . . . there exists a social solidarity which comes from a certain
number of states of conscience which are common to all mcrnbers
of the same society. That is what repressive law materially
represents, at least in so far as it is essential.” O8
62 Ibid. p. 79.
0s Ibid. p. 73. 04 Ibid. p. 81. 0s Ibid. p. 90.
00 Ibid. p. 99. 87 Ibid. pp. 102-103. 08 Ibid. p. 109.
May 19761 SOCIO-LEGAL. THEORY: SOCIAL STRUCTURE AND LAW 301
The dependence of the law on the society and vice versa is expressed
by Durkheim when he says that ‘‘ In determining what fraction of the
juridical system penal law represents, we, at the same time, measure
the relative importance of this solidarity.” OD* 7 0
(b) Organic solidarity due to the division of labour. Organic
solidarity corresponds to the restitutive sanction type of law, rather
than the repressive sanction. It arises out of ditferentiation and
specialisation of functions in society rather than homogeneity. Such
differentiation and specialisation, varieties of experience and outlook
of the members of a given society, leads to an increase of the mutual
dependence of those members. It not being possible for individuals
in modern industrial societies to satisfy all their needs without
dependence on other members of society, the objective need for legal
regulation is great, due to necessary interdependence. But legal regu-
lation is required to play a different role, i.e. from repression to
restitution. Durkheim uses the example of the contract to demonstrate
the shift from repressive to restitutive law. “ I n effect, the contract
is, par excellence. the juridical expression of co-operation.” I1 ‘‘ . . .
the contract is the symbol of exchange,” which “exchange always
presupposes some division of labor more or less developed.” 7 2 The
movement is towards a law of positive co-operation. But it must not
be forgotten that society lies behind such co-operation “ Every contract
thus supposes that behind the parties implicated in it there is society
very ready to intervene in order to gain respect for the engagement
which has been made.” 73 Durkheim sums up that “ the relations
governed by co-operative law with restitutive sanctions and the soli-
darity they express. result from the division of social labor.” 74
Further, such restitutive law is not dependent upon the collective
conscience, but :
“This law definitely plays a role in society analogous to that
.
played by the nervous system in the organism . . we can equally
measure the degree of concentration at which a society has arrived
in accordance with the division of labor according to the develop-
ment of -operative law with restitute functions.” 76
Durkheim states quite succinctly the importance of the thesis which
he puts forward “ . . . law always varies as the social relations which
it governs.” To* 77
60 Ibid. p. 109.
70 Durkheim’s analysis of mechanical solidarity has been criticised by a number
of anthropologists, e.g. Bronislaw Malinowski-“ We may therefore finally dismiss
the view that ‘ group-sentiment ’ or ‘ collective responsibility * is the only or even
the main force which ensures adhesion to custom and which makes it binding or
legal.” Crime and Custom in Savage Society, 1926 (6th impression 1951), p. 55. See
Chap. l’l, an anthropological definition of law.
7 1 Durkheim, o p . dt. p. 123. 7 2 Ibid. p. 125.
7 8 Ibid. p. 114. 74 Ibid. p. 127.
7 5 Ibid. pp. 128-129. 70 Ibid. p. 132.
77 Ft; criticism of Durkheim’s Division of Lab:; see: R. D. Schwartz and J. C.
Miller Legal Evolution and Societal Complexity (1964) 70 American Journal of
Sociology, 159; J. Stone (1934) 47 Harvard L.R. 1448; Gurvitch, op. cir. pp. 83-96.
For use, sea M. Gluckman, The Idem in Borotse Jurisprudence, 1965, pp. 238-241.
For evaluation, see T. Parsons, The Structure of Social Action, 1937, pp. 308-324.
302 THE MODERN LAW REVIEW [Vol. 39
It needs to be pointed out that Durkheim’s analysis has received
an over-rigid juristic account in the work of LRon Duguit, who
attempted studies of the transformation of French law under the
influence of industrialisation in the nineteenth century.78In the notion
of law and social solidarity expressed by Durkheim. Duguit finds
what was to him an “ objective law.” i.e. solidarity by the division
of labour, organic solidarity.’O Such an “ objective law ” he uses to
free positive law from its dependence on the sovereign and the state.
“. . . the ruling class has no subjective sovereignty. . . . The
state is no longer a sovereign power issuing its commands. It
is a group of individuals who must use the force they possess to
supply the public need. The idea of public service lies at the
very base of the theory of the modern state. No other notion
takes its roots so profoundly in the facts of social life.”8o
“ Thus there is produced in human society a vast division of labor,

which is the pre-eminent fact of social cohesion.” Following the

tradition of the historical school of jurisprudcnce he is able to
maintain the existence of a jural framework to society independent
of the state. “. . . that law is not a creation of the State; that it
exists apart from the State; that the idea of law is entirely independent
of the idea of the State . . and “But it is not the intervention
(of the State) which gives the character of a juridical norm to the
rule. . . .” But, from the supposed existence of the “ social fact ”
as to social solidarity,R4 Duguit implies a duty to maintain such
solidarity.86This transformation itself is the underlying prc-occupation
of natural law philosophy whereby an ethical, moral or religious
belief, social, psychological or political fact is prcsumed to induce
a metaphysical duty to maintain such a belief /fact. Axel Hagerstrom.
the Swedish philosopher, maintains that:
“ We have now made plain that what happens to jurisprudence
if, pushed on by the demand which is made on modern science,
it tries to exhibit the facts which correspond to its characteristic
notions of rights and legal duties. On the one hand, it can dis-
cover nothing which corresponds to those notions as they are
actually used; on the other hand, it has recourse to something
7 8 Sec the translations of his works ‘ Transformations GBndraIes du Drolt Napoleon ’
(translated in Progress of Continental Law ‘p, the nineteenth century-Continent$
Legal History Series, Vol. XI. 65-146) and Transformations dur Droit Public
(translated as Law in fhe Modern State by H. J. and F. Laski, 1913!.,
7 0 H. Laski, in introduction to Law In the Modern Sfate, sais : He starts from the
obvious fact of social interdependence.” Duguit argues: The fact remains un-
questionable, not as a postulate, but as a direct observation, that man is a conscious
and social being.” “Men lend each other mutual assistance for the realization of
their common needs by putting together their similar aptitudes.” (1920) 20 Columbia
L.R. “Objective Law,” p. 822 and p. 830.
8 0 Duguit, Law in fhe Modern Sfafe,pp. xliii-xliv.
8 1 Dugui,t (1920) 20 Columbia L.R. p. 830.
82 Duguit, “ Objective Law ” (1921) 21 Columbia L.R. p. 21.
85 Ibid. p. 22.
84 In conflict with theories of class antagonisms.
85 See his “Theory of Objective Law anterior to the State” in Modern French
Legal Philosophy, 1921, pp. 290-296.
May 19761 SOCIO-LEGAL THEORY : SOCIAL STRUCTURE AND LAW 303
which is only apparently an object of experience. Thus it is
shown that the notions in question cannot be reduced to anything
in reality. The reason is that, in point of fact, they have their
roots in traditional ideas of mythical forces and bonds.” 87 8og

Despite this criticism. Duguit’s analysis minimises the function of the

State in considering the notion of a legal rule. In place of the State
exists the notion of solidarity.
LL
. . . a rule of law exists whenever the mass of individuals
composing the group understands and admits that a reaction
against the violation of the rule can be socially organised.” 88
On the one hand the structural functionalism of Durkheim’s approach
is implicitly accepted, in that the definition of law cannot be distin-
guished from the definition of society. On the other, the import and
effectiveness of legal rules are determined by social factors.
“ The laws which formulate rules which are not yet juridical

rules are powerless, and the legal measures which they ordain
remain useless.” 8 o
The required determination of legal norms by social norms is the
explicit conclusion which can be drawn from this analysis for the
conceptual sociology of law. The theoretical and methodological
requirements for such study are that the question “ what is society? ”
is a prerequisite to “ what is law? ” There exists no secondary rela-
tionship between what law is and what society is, i.e. law is something
differentially applied to changing social conditions, there exists a
primary relationship, what law is is dependent on what society is, or
our understanding of it. An evaluation of the effectiveness of law
according to the theory developed is a secondary matter, as Duguit
shows.
EHRLICH
In the foreword to his major work, Fundamental Principles of the
Sociology of Ehrlich sums up his thesis in one sentence:
“ At the present as well as at any other time, the center of gravity
of legal development lies not in legislation, nor in juristic science,
nor in judicial decision, but in society itself.” O2
This often quoted and much misused statement has been taken to
classify Ehrlich, with Pound. as a lading figure of the sociological
80 Inquiries info the Nature of Law and Morals, p. 16 (translated by C. D. Broad,
1953).
87 Note how Duguit uses the same argument in criticism of “ subjective rights”
theories: “ In the affirmation of liberty there may be an act of religious belief,
of philosophic conviction, an aspiration, a hope, a drenm; but not an affirmation of
scientific value.” (1920) 20 Columbia L.R. p. 820. And at p. 821, “Man has always
felt the need of explaining the visible by the invisible, of placing behind the
phenomena he ascertains directly an invisible entity which he makes the basis and
the efficient cause of the phenomena which he ascertains.”
8 8 (1921) 21 Columbia L.R. p. 22.
80 Ibid. p. 21.
00 Austrian jurist, 1862-1922.
01 Translated by W. L. Moll, 1936. 92 1912.
304 THE MODERN LAW REVIEW [vol. 39
jurisprudential school, rather than accepting the methodology of his
sociological leanings, and putting him in the forefront of a sociology
of iaw.93
In turning to his work, one finds an introduction by Roscoe Pound.
Pound puts forward his own jurisprudential conceptions in asserting
that:
“ T o the twentieth century, the problems seem to be first, not
what law is, but what law does, how it does it, what it can be
made to do and how; second, the canon of valuing the conflicting
and overlapping interests and claims which must be harmonised
or adjusted by the legal order; and, third, the limits of effective
legal action and the means of securing effectively the interests
which the legal order rmgnises and delimits.” 94
To utilise this framework to introduce Ehrlich is misleading. The three
problems brought forward by Pound, are questions of sociological
jurisprudence, the presumptive primacy of legal rules is accepted.
Xhis precludes some key points of Ehrlich’s analysis, which distinguish
his work as sociology of law. Maybe the contrast in starting points
can best be brought out by considering the terms of reference with
which Ehrlich looks at Montesquieu. by the side of Pound’s critique.
Ehrlich,B6having ignored Montesquieu in Fundamental Principles of
the Sociology of Law argues:
“ As law is essentially a form of social life, it cannot be explained
scientifically otherwise than by the working of social forces. . . .
Thus in order to discover the social foundation of law we must
seek the very form in which it is engendered by society.”
The symbolic difference between Pound’s analysis (of Ehrlich) and
Ehrlich‘s analysis (of Montesquieu) is that between the jurist’s interest
in the social relations of law and the sociologist’s interest in society
and law as an institution within society. Ehrlich’s structural analysis
of law in the latter terms needs to be examined. The only work of
his which can be used in his Fundamental Principles of the Sociology
of Law.97This work is, in fact, a series of essays, related to the theme
of the sociological study of law.
In Chapter I. “The Practical Concept of Law,” Ehrlich aligns
himself to the philosophical school exemplified by Rudolph von
93 It may well be argued that this is a juristic hypothesis, and that Ehrlich was
essentially a jurist, but the present writer believes that his methods were those of
the sociology of law and he is therefore classified as such. In Ehrlich’s own words:
“ Since the law is a socinl phenomena, every kind of legal science (Jurisprudenz) is
a socinl science; but legal science in the proper sense of the term is a part of the
theoretical science of society, of sociology. The sociology of law is the theoretical
science of law (die wissenschaftliche Lehre von Recht). Fundamentd Principles of
the Sociology of Law,p. 25.
94 Ibid. nix-xxx.
96 ‘‘ Montesqu1i:u and Sociological Jurisprudence ” (1916) 29 Harvard L.R. 582.
90 Ibid. p. 584.
9 7 See summary “Sociology of Law ” (1922) 36 Harvard L.R. 130. His other
major works remain untrnnslated, e.g. Die Iuristische Logik (1918). Freie Rechrsfin-
dung und freie Rechrswissenschoft (1903) is partly translated in Modem Legal
Philosophy Series Vol. IX.
May 19761 SOCIO-LEGALTHEORY: SOCIAL STRUCTURE AND LAW 305
Ihering O8 the German legal philosopher. Ihering’s book Der Zweck
im RechtoOis based on a grand theory of social action whereby he
asserts that it is purpose rather than causation which determines law.
To restate law in terms of its social purposes was the task which
Ihering anticipates in the above work, although which he never
completes. Ehrlich accepts the purposive nature of human thinking
and understanding.
“ Human thinking is necessarily dominated by the concept of
purpose, which determines its direction, the selection of its
materials, and its methods.”
This method, later developed in the writings of Roscoe Pound? did
not, however, distract Ehrlich from his sociological task. The method
of purpose is one of sociological jurisprudence. Ehrlich in a central
theme, later in the first chapter, develops his sociological model and
explicitly is able to show the limitations of purposive method.
‘‘ It is not an essential element of the concept of law that it be
created by the State. nor that it constitute the basis for the
decisions of the courts or other tribunals, nor that it be the basis
of a legal compulsion consequent upon such a decision. A fourth
element remains, and that will have to be the point of departure,
i.e. the law is an ordering.” *
Similarly Durkheim demonstrates the limitations of purposive thinking
in his The Rules ofSociological Method.
“ To show how a fact is useful is not to explain how it originated
or why it is what it ,is. The uses which it serves presuppose the
specific properties characterising it but do not create them. The
need we have of things cannot give them existence, nor can it
confer their specific nature upon them.” *
In following up this central theme, in Chapter 2 ‘‘ The inner order
of the social associations,” Ehrlich gives his definition of society. He
says :
“ Society is the sum total of the human associations that have
mutual relations with one another.”
Further, society, even today, is dependent on an “ inner order ” for
its maintained structure rather than a legal norm. It is social com-
pulsion which gives it such an “inner order” and the legal norm
and authority of the state are themselves based on this social com-
pulsion. In considering the development of society Ehrlich says :
“Even today, just as in primitive times. the fate of man is
determined to a much greater extent by the inner order of the
associations than by legal propositions.
98 1818-92.
99 Lau QP a Means to an End. translated by I. Husik. 1913.
1 Ehrlich, Fundarnenfd Principles of the Sodology of Law,p. 5.
a See particularly his ‘‘ Survey of Social Interests ” (1943) 57 Harvard L.R. 1.
3 Ehrlich, op. df. p. 24.
4 1938 at p. 90.
6 Ehrlich, op. c ff.p. 26.

VOL 39 (3) 3
306 THE MODERN LAW REVIEW [vol. 39
. . . The State existed before the constitution; the family is
older than the order of the family; possession antidates ownership;
there were contracts before there was a law of contracts. . . .”
Historically, Ehrlich argues, society is conceived of as pre-existing
laws about or related to that society. Social associations within that
society pre-exist and have an existence of their own, beyond
the legal propositions which refer to them. So, the inner order precedes
the legal regulation, and legal regulation is dependent on this inner
order.
“ The inner order of the associations of human beings is not only
the original, but also, down to the present time. the basic form
of law. The legal proposition not only comes into being at a
much later time, but is largely derived from the inner order of
the associations.” ’
This is the lesson which socio-legal research needs to learn, and
which Ehrlich has so bluntly stated. It is restated by the present
writer as : “ What is society? ” is a primary question of jurisprudence,
is a necessary point of departure for an understanding of law as a
dependent phenomenon, existing within the social context.
From a structural viewpoint Ehrlich maintains that the idea of law
is much wider than the notion of legal regulation. The legal norm is
the basis of living law. which is:
“ . . . not confined to its influence upon the norms for decision
which the courts apply or upon the content of statutes. The
knowledge of the living law has an independent value, and this
consists in the fact that it constitutes the foundation of the legal
order of human society.”
In chapter 21 ‘‘ The Methods of the Sociology of Law.” part 2, “ The
Study of the Living Law ” the themes so far illustrated are further
developed. Ehrlich says :
“ The reason why the dominant school of legal science so greatly
prefers the legal proposition to all other legal phenomena as an
object of investigation is that it tacitly assumes that the whole
law is to be found in the legal propositions.”
Ehrlich puts forward “ living law ” as a contrast to “ legal proposi-
tions,” the latter being that law which is enforced, or used as source
material, in courts or tribunals.
“ The living law is the law which dominates life itself even though
it has not been posited in legal propositions.” lo
The implications of this are that one must look to those matters which
underly the living law since the legal proposition in itself is insufficient
for the purposes of understanding law in its social context. Ehrlich
suggests that the sources of this “living law” are “. . . first, the
~ ~~

0 Ibid. pp. 35-36. 7 Ibid. pp. 31-38.

8 Ibid. p. 502.
0 Ibid. p. 486. 10 Ibid. p. 493.
May 19761 SOCIO-LEGAL THEORY : SOCIAL STRUCTURE AND LAW 307
modern legal document; secondly, direct observation of life, of com-
merce, of customs and usages, and of all associations, not only of
those that the law has recognised but also of those that it has over-
looked and passed by. indeed even of those that it has disapproved.” l1
This living law is depicted as virtually equivalent to the inner ordering
of society itself. Indeed Hans Kelsen criticises it as exactly that. In
General Theory of Law and State at page 26 he argues :
“. . . if we define law simply as order or organisation. and not
as a coercive order (or organisation), then we lose the possibility
of differentiating law from other social phenomena; then we
identify law with society. and the sociology of law with general
sociology.
This is a typical mistake of many legal sociologists, and
especially of Eugene Ehrlich’s sociology of law.”
Without going into the ramifications of Kelsen’s theory of law or
arguing the value he asserts for his Pure Theory being “ a concept
serviceable for the cognition of social life.”l3 some justification for
Ehrlich‘s analysis can be given. Contrary to the views of numbers of
jurists l4 who mis-interpret Ehrlich‘s thesis, Ehrlich has propounded
a theory of dependent law, and adapted his theory to the need to
identify law within its context, i.e. law as a social phenomena, rather
than diluting his attempt by characterising law as having some inde-
pendent existence. Law is identified with society and the sociology of
law with general sociology or at least general sociological theory.15
As Ehrlich says, “The sociology of law then must begin with the
ascertainment of the living law ” la and :
“ . . . the scientific significance of the living law is not confined
to its influence upon the norms for decision which the courts
apply or upon the content of statutes. The knowledge of the
living law has an independent value, and this consists in the
fact that it constitutes the foundation of the legal order of human
society.”
Methodologically Ehrlich is starting with those questions which a
sociology of law demands, as such he does no doubt open himself to
attack from those whose primary purpose is to delimit the existence
of law rather than examine it within its social context. However, if
one accepts his methodological base, his theory and in particular his
definitions of society, associations and “ living law ” and his minimisa-
tion of the role of statute law can be criticised. It is not the aim of
this paper to list the various arguments against Ehrlich‘s analysis here,
but rather to take as given the content of his sociology of law and
to use his theoretical formulations in order to demonstrate the trends
of socio-legal orientated theory.
11 Ibid. p. 493. 12 1945.
1s Kelsen, General Theory of Law and Stare, p. 4.
14 e.g. M. Rheinstein, 1937-8, Vol. 48, International Journal of Erhics, pp. 233-239;
Gurvitch, o p . cit. pp. 116122.
1 5 See above, section on “ Sociology of Law.”
18 Ehrlich, op. cit. p. 501. 17 Ibid. p. 502.
308 THE MODERN LAW REVIEW [Vol. 39
PARSONS/BREDEMEIER
As demonstrated by Stone in Sociul Dimensions of Law and Justice,
the writings of Talcott Parsons offer a valuable critique for the
sociology of law but have, to a large extent, been neglected by juris-
prudence.’* The complexity of his analysis is maybe one reason, but
of greater importance is the implication for jurisprudence that its
methods are such that the starting point .of Parsons’ thesis, i.e. his
social system. is not immediately adaptable for jurisprudence.
Bredemeier lo has developed an analysis of “ Law as an Integrative
Mechanism,” based on Parsonian theory. In keeping with the trend
of this article, some short analysis of Parsons’ “ social system ” will
be given.
Parsons’ message to economists in Economy and Society 2o is that
“Economics must lean on the other social sciences. both on the
theoretical and empirical levels, as they must also lean on it.” 21
Parsons goes on to expound his thesis, based on systems analysis, of
the “ independent ” and “ interdependent ” structures within society.
The functional differentiation of society can only be considered once
a theoretical foundation has been laid. This theoretical foundation is
in the form of the interdependent analysis of the various structures
of society as a whole. “Law” or the “legal system” can be con-
sidered as an independent or interdependent sub-system and. in
accordance with the reasoning in this paper, it is the interdependent
analysis of law which is the subject of the sociology of law.
On pages 47-51 of Economy and Society, Parsons generalises his
analysis of the social system, and suggests:
“. . . that total societies tend to,differentiate into sub-systems
(social structures) which are specialued in each of the four primary
functions.” 22
The four functional sub-systems suggested are explained on pages
51-70. ‘‘The economy, the polity, the integrative sub-system, and the
pattern-maintenance and the tension-management sub-system ” 2s are
the constituent parts of the social system. The economy sub-system
serves the “ adaptive ” function of a society, i.e. “ maximising utility
or the economic value of the total available means to want satis-
faction.” 24 The polity sub-system is concerned with “ goal-attainment ”
functions, i.e. “ ... the mobilisation of the necessary prerequisites
for the attainment of given system goals of the society.”26 The
integrative sub-system functions to institutionalise the society’s total
value patterns and to reduce conflict. The pattern-maintenance and
the tension-management sub-system functions to adjust the “ unit ”
sub-systems just as the integrative sub-system functions to control
..
18 Pp. 20-28. ‘ I . we find it regrettable that this notable theorking about the
nature and structure of n social system should have been so neglectful of the
jurisprudential (and even sometimes of the common) knowledge of lawyers.” (p. 23.)
18 In W. M. Evan (ed.) Lmv and Sociology, 1962, pp. 73-88.
20 T. Parsons and N. J. Smelser, 1956. 2 1 Ibid. p. 1.
22 Ibid. p. 41. 28 Ibid. p. 51.
24 Ibid. p. 20. 25 Ibid. p. 48.
May 19761 SOCIO-LEGAL THEORY : SOCIALSTRUCTURE AND LAW 309
the total social system. The difference between the integrative and
pattern maintenance sub-systems is that “ between the processes by
which the basic economic commitments are maintained and the pro-
cesses by which the boundary relations between the economy and
other social sub-systems are adjusted.” 2o
Parsons and Smelser in Economy and Society go on to analyse this
social system/sub-system model, in terms of the various relationships
of “ inputs ” and “ outputs ” between each sub-system and the total
situation and each sub-system to each other sub-system, with special
reference to the economy.
In Bredemeier’s article “Law as an Integrative Mechanism,” he
utilises Parsons’ functional model to identify ‘‘ the law ” with the
“ integrative ” sub-system. He then goes on to consider the relation-

ship in terms of “inputs” and “outputs” between the law and

adaptive processes (p. 75). the law and the polity (p. 79). and the
law and pattern maintenance (p. 82), summarising on pages 89-90.
There is no value in following Bredemeier’s deductive reasoning for
the purposes of this paper, beyond noting the following methodological
points :
(i) no attempt is made to define law, as such;
(ii) use is made of a sociological model of society;
(iii) law is analysed in terms of its “functions” within society;
(iv) valuable jurisprudential conclusions can be drawn from such
methods.
Only one fragment of Parsons’ writings has been used here to
develop the argument. There are a number of other sociological
analyses which he raises which are of interest to jurisprudence and

CONCLUSION
The discrepancy in methods between writers who attempt to develop
an analysis of law in society, is crucial to an understanding of and
development of such studies, both of a theoretical and practical
nature.28
The functional models of society postulated by writers such as
Durkheim, Ehrlich and Parsons, despite the criticisms which can be
made against functional analysis.2° demonstrate the value of consider-
ing law as a dependent social phenomena (or in Parsons’ language an
“ interdependent sub-system ”), demonstrate the misconceptions which

pervade jurisprudential analysis of law in society, and imply the need

to develop a sociology of law on the basis of the question “what is
society? ” rather than “ what is law? ” Sociological materials, such as
28 Ibid. p. 50.
27 In particular, “The Law and Social Control” in W. M. Evan (ed.) Law and
Sociology, 1962, pp. 56-72.
28 See particularly, P. Winch, The idea of a social science and its relation to
phflosophy, 1958.
28 See e.g. G. Simmel, Conflict and The Web of Group-Afilfations, translated by
K. H. Worn and R. Bendix. 1955.
310 THE MODERN LAW REVIEW Wol. 39
those used in this article, should be readily available to those who
study the theory of law. The limited aims of traditional jurisprudence,
its fallacious starting points and methods in terms of the social
explanation of law, are the reasons why they are not. This epistemo-
logical critique of jurisprudence is in some senses equivalent to a
progression in sociological theory towards a phenomenological under-
standing of
Further, whereas it is hoped that lawyers, sociologists, psychologists,
economists and political scientists can get together to further pro-
grammes of research in the field of law in society, the various starting
points of the various scholars need to be distinguished and recognised.
There is a primary difference between the study of law as law
differentially applied, and law as function, i.e. society and law.
The theoretical developments in this area require consideration of
a number of major areas of which “social structure and law” is
one. Two others are “ social control and law ” and “ social change
and law.” A conceptual sociology of law requires that these three
areas of legal reality be developed and interrelated. in the context
of social reality.
DAVID N. SCHIFF.*
30 The present definition of a conceptual sociology of law is of this nature, and
subsequent advances in theory are likely to be based on realisation of this wherebz
“ ... the structural contingencies influencing what is defined as legal....
(Knowledge and Control, New Directions for the Sociology of Education, ed.
Michael F. D. Young, 1971, p. 26) are taken as problematic, rather than accepting
them as the taken for granted reality.
* U . B . (Southampton), Lecturer-in-Law, London School of Economics and
Political Science.