Abel 1982

Review: Law as Lag: Inertia as a Social Theory of Law
Reviewed Work(s): Society and Legal Change by Alan Watson

Review by: Richard L. Abel
Source: Michigan Law Review, Vol. 80, No. 4, 1982 Survey of Books Relating to the Law
(Mar., 1982), pp. 785-809
Published by: The Michigan Law Review Association
Stable URL: http://www.jstor.org/stable/1288246
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LAW AS LAG: INERTIA AS A SOCIAL
THEORY OF LAW
Richard L Abel*
SOCIETY AND LEGAL CHANGE. By Alan Watson. Edinburg

Scottish Academic Press. 1977. Pp. x, 146. ?3.75.
In Society and Legal Change,l Professor Alan Watson has built

upon his vast knowledge of legal history to offer a social theory
law. Since I possess no expertise in the historical data themselves
the object of this Essay will be to clarify that theory and criticize
from the perspective of contemporary scholarship in law and soc
science. The title of the book itself encapsulates all of the issues th
I want to raise: conceptual structure, the theoretical relationship b
tween "society and legal change," and the political ideology implic
in this theoretical formulation.
I. CONCEPTS OF LAW AND SOCIETY
The two central elements in Professor Watson's theory, naturall

are law and society, but his concept of law nonetheless remains
tremely vague. Although he acknowledges some of the inherent
biguities, he fails to resolve them or takes contradictory positio
doing so. The first ambiguity is whether he is speaking of pos
law - law in the books, the authoritative pronouncements of le
tors, judges, or jurists - or of living law - law in action, the be
ior of lesser legal officials and laypersons, which often deviates fr
positive law. Unlike contemporary social scientists, Watson is n
sarily dependent upon historical materials that are largely limit
official statements of law. I assume, therefore, that he must be wr
ing about positive law.2
* Professor of Law, U.C.L.A. B.A. 1962, Harvard University; LL.B. 1965, Columbia
versity; Ph.D. 1974, London University. - Ed.
1. This book incorporates and elaborates upon some of the ideas Watson put forwa
his earlier work, Legal Transplants. A. WATSON, LEGAL TRANSPLANTS (1974).
2. The illustrations that he uses seem to support this interpretation. He writes at s
places about a decree of the Roman Senate in the first century A.D. that permitted a ma
between uncle and niece, the purpose of which was to allow the Emperior Claudius to
his niece Agrippina. Pp. 38-40. Watson stresses the substantial divergence between th
and a prior custom prohibiting incestuous marriages. But what has diverged from cus
the positive law - this particular decree - not the actions of other legal officials or the b
ior of the population at large. Indeed, Watson acknowledges that during the succeeding t
785
786 Michigan Law Review [Vol. 80:785
Yet a social theory that deals only with positive law is open to an
obvious criticism. Decades of sociological jurisprudence, legal real-
ism, and sociology of law have rediscovered the gap between the law
in the books and the law in action and established that one can only
be understood in relation to the other. Watson is obviously familiar
with this literature, and seeks to accommodate it:
Obviously in a work of the present kind what matters most is "law in
action". If the only law out of step with society was that "in books" the
observation of it would have little social significance. I have tried to
show that "law in action" frequently diverges from the needs and
desires of society. [P. 126.]
But many of his examples deal only with law in the books. Watson
himself appears to recognize this limitation by contradicting the pas-
sage just quoted less than ten pages later:
There is one thing I should like to make explicit. Throughout I have
been talking about legal rules, and not about how decisions are
reached by the courts - though occasionally judicial reasoning on law
has slipped in - or how the legal system actually works. What I have
had to say should be treated independently of the propositions of Legal
Realists or of the insights of students of Sociology of Law. [P. 135.]
Watson seems never to have decided which was more important, the
law in the books or the law in action. Confusion is the inevitable
result.3
A related ambiguity inheres in the multifaceted nature of law, all
hundred years there were only two other known marriages of this sort - in other words, that
there was virtually no divergence between custom and law in action. That Watson is only
concerned with positive law is confirmed by his statement, in another context, that "it is in the
highest degree . . . significant that no alteration occurred either to allow or to prohibit mar-
riage with any niece for three centuries." P. 118. And elsewhere, discussing regimes of com-
munity property, he finds "the same legal rule," operative in Visigothic Spain, medieval
Germany, and contemporary California. P. 106. Since it is inconceivable that identical social
behavior could be found in such different settings, Watson can only be referring to positive
law.
3. Watson's uncertainty about whether he should be speaking of the law in the books or
the law in action reminds me of the perplexity of the King during the trial in Alice in Wonder-
land about what should be considered significant evidence:
"What do you know about this business?" the King said to Alice.
"Nothing," said Alice.
"Nothing whatever?" persisted the King.
"Nothing whatever," said Alice.
"That's very important," the King said, turning to the jury.
They were just beginning to write this down on their slates, when the White Rabbit
interrupted.
"Unimportant, your Majesty means, of course," he said in a very respectful tone, but
frowning and making faces at him as he spoke.
"Unimportant, of course, I meant," the King hastily said, and went on to himself in an
undertone, "important - unimportant - unimportant - important" - as if he were
trying which word sounded best. Some of the jury wrote it down "important," and some
"unimportant." Alice could see this, as she was near enough to look over their slates; "but
it doesn't matter a bit," she thought to herself.
L. CARROLL, ALICE IN WONDERLAND 126-27 (1946).
March 1982] Law as Lag 787
parts of which are closely related. It is impossible to study one set of

substantive rules in isolation; even the totality of substantive rules
must be seen in conjunction with legal processes, institutional struc-
tures, the personnel of the legal system, and the like. Thus Watson
entertains the argument that he "should also have discussed admin-
istrative law, social welfare law, evidence and procedure and the
workings of the court" (p. 126). Nor would it be sufficient to ex-
amine the totality of legal phenomena that perform similar func-
tions, for law is, among other things, "one weapon in a whole battery
of means of social control; organized religion, economic conditions,
widely-held ideas of morality" (p. 125). Watson's response to these
self-criticisms is twofold, if also contradictory. He insists, on the one
hand, that he has adopted a holistic approach, and on the other, that
the examples he has chosen make it unnecessary to do so because the
particular laws analyzed are immune to the influence of other social
forces. But once again, having flirted with sociology of law, he aban-
dons it in the end: "[M]y narrow focus is deliberate. My concern
has been to establish [only] whether rules of substantive private law
are or are not in step with the needs and desires of the society ..."
(pp. 126-27).
Professor Watson's conception of society is even more problem-
atic. Most of the time he treats society as an undifferentiated, per-
sonified whole; he repeatedly writes of the "needs or desires of
society" (p. 9) or finds rules "satisfactory for the society as a whole"
(p. 24). True, he again seeks to anticipate the attacks of pluralist
political scientists, elite theorists, and Marxists (pp. 8-9), but not by
analyzing interest groups, strata, or classes. Instead, he proposes to
study only rules that are "inconvenient or positively harmful either
to society as a whole or to large or powerful groups within the soci-
ety" (p. 9). He views society as either an organic whole or as a series
of interest groups utterly dominated by a monolithic ruling class.
In selecting both of his central concepts, in sum, Watson ad-
dresses the theoretical framework of the sociology of law only to dis-
miss it: He rejects the study of legal institutions and processes in
order to concentrate upon substantive rules, and he personifies soci-
ety so as to render unnecessary any analysis of the political ideas or
behavior of particular individuals or groups.4
4. The conceptual structures of comparative law and legal history on the one hand, and
sociology of law on the other, may be so fundamentally incompatible as to make it virtually
impossible for one to accommodate the other. See Abel, Comparative Law and Social Theory,
26 AM. J. COMP. L. 219 (1978).
II. SOCIAL THEORIES OF LAW
These conceptual problems are compounded by, and contri

to, difficulties inherent in Watson's theoretical framework. It is n
essary to begin with some basic epistemological issues. Watso
pears to employ a highly oversimplified notion of social theor
states, for instance: "The fact that some swans are black woul
constitute proof of a theory that all swans were of necessity
(p. 43). This flawed and simplistic formulation5 is an essentia
ment in Watson's implicitly antitheoretical stance. Much o
book attacks other theories that link society and legal chang
does so by taking an extreme antihistoricist position in the tra
of Popper and Nisbet:7
[T]here must be some relationship between the needs and desires
society and its legal rules. . . . But this relationship seems impossi
to define, perhaps because it varies from state to state and from
area of law to another. [P. 134.]
Yet, here again, Watson is caught in a contradiction: If the rel
ship is truly unknowable, then he cannot offer an alternative
nation. So he backs away to an ambivalent position that po
relationship but simultaneously asserts that it is accidenta
unimportant:
Historical factors will explain why any law is passed at the time i
passed; but these factors need not be deeply embedded in the life
desires of society or the technical skills of the law-makers. [P. 90.]
And he appears uncertain about even these "historical factors,
he quotes Lord Devlin approvingly as wondering "whether the
lature selected the offences haphazardly" (p. 79).
Watson's general theoretical skepticism is only a prelude t
criticism of specific theories of law in society. It is possible to dis
guish at least three of these theories. The first is associated w
historical jurisprudence, perhaps most notably the work of Sav
it asserts a natural harmony between law, as the spirit of the peop
and society - at least until legislative action disturbs the harm
The second is Marxist theory, which views law in capitalist soc
5. There are at least three problems with this formulation. First, "all swans are bl
not a theory; it is a descriptive statement at a fairly low level of generality that m
employed in constructing a theory. Second, theories are not proved; they are falsified
vive falsification. Third, single-factor, nonstatistical explanations of the kind sugge
Watson's example (if the animal is a swan, it will be black) are rarely useful in social sc
since social systems are so extraordinarily complex.
6. See, e.g., p. 130 ("[N]one of the theories of the development of law or the relat
between law and society are [sic] acceptable.").
7. R. NISBET, SOCIAL CHANGE AND HISTORY (1969); K. POPPER, THE POVERTY O
TORICISM (1977).
as an expression of the relations of production and, therefore, as a

reflection of the class domination inherent in these relations. The
third is the view of law as a means of social engineering, a perspec
tive that can be traced from Ihering through Pound's sociological
jurisprudence to contemporary "policy science."
In grouping together theories that are usually seen as distinct
even antithetical, Watson draws attention to an important commo
attribute: All three tacitly assume that harmony between law an
society is natural and attainable. They differ largely in where the
locate this harmony historically and how they evaluate it: The inte
lectual descendants of Savigny place the ideal society in the past,
against which standard the present seems wanting;8 social enginee
assert that harmony could be achieved now, if only they were give
free rein;9 orthodox Marxists maintain that capitalist law furthers the
interests of only one class and will express those of the entire society
only when classes themselves disappear under socialism (at which
point law, like the state, may wither away). It is perhaps not acc
dental that all three traditions derive from the work of German
scholars writing within a few decades of each other, at a time when
rapid social change appeared to threaten the capacity of law to serve
society.
Watson's purpose, however, is not to reveal the truth that these
otherwise divergent theories may share, but to expose their common
error. To do this, he must caricature each approach. Thus he quotes
Savigny on the Zeitgeist, and scattered extracts from some of his
lesser known followers, while ignoring the monumental achievement
of twentieth century anthropology, especially legal anthropology, in
documenting and explaining the close connection between law and
social structure in tribal societies.10 While implicitly ridiculing what
now appears, with the benefit of hindsight, to be Roscoe Pound's
naive overenthusiasm for social engineering, Watson conveniently
ignores the indisputable fact that law is used to regulate vast areas of
social life in virtually every contemporary society. And he singles
out for criticism an obscure exponent of vulgar Marxism even
though he is aware of the qualifications offered by Engels, if he does
8. This would also include those who idealize tribal societies. For a criticism of such ideal-
ization, see E. COLSON, TRADITION AND CONTRACT (1974). For a discussion of some of the
difficulties with Colson's position, see Abel, The Problem of Values in the Analysis of Political
Order. Myths of Tribal Society and Liberal Democracy, 16 AFR. L. STUD. 132 (1978).
9. See, e.g., S. NAGEL & M. NEEF, LEGAL POLICY ANALYSIS (1977).
10. The literature is vast. See, e.g., S. ROBERTS, ORDER AND DISPUTE (1979); THE DIS-
PUTING PROCESS - LAW IN TEN SOCIETIES (L. Nader & H. Todd eds. 1978); Abel, A Compar-
ative Theory of Dispute Institutions in Society, 8 LAW & SOCY. REV. 217 (1973).
not seem familiar with later refinements of Marxist theory.II

Having set up these straw men, Watson advances his own thesis
that
though there is a historical reason for every legal development, yet to a
considerable extent law in most places at most times does not progress
in a rational or responsive way, and that the divergence between law
and the needs or wishes of the people involved or the will of the leaders
of the people is marked. [P. 5.]
Although he caricatures the theories that he seeks to discredit, Wat-
son must acknowledge that most of them make some allowance for
divergence between law and society. To demonstrate the originality
of his own views, therefore, he does two things. First, he asserts that
a much greater degree of divergence exists than that admitted by
other theorists - a position that creates problems, as this Essay will
soon show. Second, he fails to mention scholars for whom the diver-
gence was a central preoccupation, e.g., William F. Ogburn,12 with
his theories of social lag, and William Graham Sumner, who wrote a
whole book on the divergence between "folkways" and "lawways."13
In fact, in reacting against the prevailing theoretical framework,
Watson has not escaped it but merely turned it upside down. He
appears to be asserting that law has never been congruent with soci-
ety, is not presently used for social engineering, and does not express
class domination.14 His method of supporting this position, like the
position itself, is a mirror image of the functionalism that he attacks.
That functionalist metatheory, which pervades contemporary social
science (including some Marxist analysis), has been lampooned as a
mode of analysis that seeks the meaning of social institutions by ask-
ing questions in the form "If I were a horse," after the apocryphal
farmer who, looking for a lost horse, asked, "If I were a horse, where
11. Pp. 4, 7. Particularly important Marxist writings that Watson might have treated in-
clude G. LUKAS, HISTORY AND CLASS CONSCIOUSNESS (1971); K. RENNER, THE INSTITU-
TIONS OF PRIVATE LAW (A. Schwarzschild trans. 1949); and Pashukanis, The General Theory of
Law and Marxism, in SOVIET LEGAL PHILOSOPHY (20th Century Legal Philosophy Series, vol.
5, H. Babb trans. 1951). A great deal has been published since Watson's book appeared. See,
e.g., M. CAIN & A. HUNT, MARX AND ENGELS ON LAW (1979); B. EDELMAN, OWNERSHIP OF
THE IMAGE (1979); P. HIRST, ON LAW AND IDEOLOGY (1979); T. MATHIESEN, LAW, SOCIETY
AND POLITICAL ACTION (1980); E. PASHUKANIS, LAW AND MARXISM (B. Einhor trans., C.
Arthur ed. 1978); E. PASHUKANIS, SELECTED WRITINGS ON MARXISM AND LAW (P. Beire &
R. Sharlet eds. 1979); P. PHILLIPS, MARX AND ENGELS ON LAW AND LAWS (1980); C. SUMNER,
READING IDEOLOGIES (1979); M. TIGAR & M. LEVY, LAW AND THE RISE OF CAPITALISM
(1977).
12. W. OGBURN, SOCIAL CHANGE (New ed. 1950).
13. W. SUMNER, FOLKWAYS (1906). See Ball, Simpson & Ikeda, Law and Social Change:
Sumner Reconsidered, 67 AM. J. Soc. 532 (1962).
14. Indeed, the homology between Watson and the theories that he caricatures is even
closer for, as we will see later, he believes strongly that law can and should be brought into
harmony with society.
would I go?"'5 The functionalist observes a social behavior or an

institution and asks himself, "If I were a member of that society at
that time, why would I behave in that fashion?" The observer's em-
pathetic response is then offered as the explanation for the institution
or behavior. Watson does just the opposite. He examines a legal
rule, asks whether he would want such a rule if he were a member of
that society, decides that he would not, and concludes that the law
serves no purpose. He discusses at some length, for instance, the dis-
tinction between manifest and nonmanifest theft in Roman law and
notes that the penalty for the latter was much less severe (pp. 34-37).
Why, he asks, was this so? Some scholars have argued that there is
greater doubt about guilt in nonmanifest theft. Watson seems to ask
himself, "If I were a Roman, would I find such doubt sufficient rea-
son for greater lenience?" His response is unequivocal: "[T]here
was a degree of illogicality in drawing the distinction. Doubt as to
guilt may be a good reason for not condemning the action, but not
for fixing a lower penalty" (p. 37). This judgment is Watson's alone.
He offers no evidence that the Romans shared his feelings. Indeed,
numerous empirical studies of decision-making by contemporary
judges and juries show that doubt about guilt generally mitigates the
rigor of punishment in both criminal16 and civil17 cases.
What Watson is doing is importing his own judgments - ethical,
political, economic, and social - about what the rule ought to be,
implicitly suggesting that these are the only purposes that the rule
could serve, and then concluding that the rule serves no purpose.
Such "antifunctionalism" has even greater epistemological problems
than functionalism itself. First, it is hard to conceive of a theory of
law in society grounded upon the principle of absurdity, irrational-
ity, and disconnection.18 Second, functionalism constitutes no more
than a heuristic assumption in contemporary social science (and in
my opinion one that has proved its worth): The hypotheses it gener-
ates are then subjected to rigorous testing. It is not clear to me how
"antifunctionalist" hypotheses could be tested since the number of
explanations for a given rule is logically infinite (it does not serve
purposes A, B, C . . .). Watson's method is rather like that of the
15. According to Max Gluckman, A.R. Radcliffe-Brown is the source of this criticism. See
M. GLUCKMAN, POLITICS, LAW AND RITUAL IN TRIBAL SOCIETY 2 (1965).
16. See H. KALVEN & H. ZEISEL, THE AMERICAN JURY (1971). See generally Symposium.
Plea Bargaining, 13 LAW & SOCY. REV. 185 (1979).
17. See, e.g., H. Ross, SETTLED OUT OF COURT 141 (1970). Compromise verdicts in tort
cases, where the jury reduces damages because of uncertainty about fault, are widespread,
though unlawful.
18. Cf. P. FEYERABEND, AGAINST METHOD (1975).
Western anthropologist who approaches a non-Western society with

a set of preconceived hypothetical questions only to be told, in re-
sponse to the question "What if... ?", that it never happens.19 But
where the anthropologist merely fails to recognize the significance of
information because of his approach, Watson runs the greater risk of
acquiring misinformation. His method is all the more difficult to
evaluate because his judgments are implicit. He speaks, for example,
of a rule as being "the best available," "selected for sound reasons,"
or "suit[ed] to its new environment" (p. 98). He asserts that "it is not
the case that when it is generally known that a better rule exists else-
where, that rule will be adopted" (p. 105). Yet, he never tells us what
he means by "better," "best," "sound," or "suited."
In many ways, Watson seems to me to be an unconfessed uti-
litarian.20 His approach certainly suffers from many of the problems
of utilitarianism. There is a confusion of is and ought: Because a
rule offends Watson's sense of logic or purpose, he concludes that it
is arbitrary, accidental, dysfunctional, and absurd (p. 84). He is as-
sisted in reaching these judgments by a tendency to be both ethno-
centric and ahistorical. Sometimes he measures other societies and
times by his own standards: "People everywhere want the same ba-
sic things from their contract law: simplicity, efficiency and easiness
of proof' (p. 20). Quite apart from the impossibility of talking about
what "people want" as though those wants could be known and were
identical, this statement is obviously false - to begin with, most so-
cieties at most times have not even had a "contract law"21 - and
patently an attempt to universalize the ideology of liberal capitalism.
At other times, Watson adopts and seeks to generalize the model of
another society: "[A] rule which was unsatisfactory at Rome is not
19. See Abel, Customary Laws of Wrongs in Kenya. An Essay in Research Method, 17 AM.
J. COMP. L. 573 (1969).
20. He writes enthusiastically, for example, of Jeremy Bentham, who, "above all, never
tired of pointing out how unsuitable much of English law was for the society as a whole ....
In the present context one of the most interesting things is that, despite the efforts and influ-
ence of Bentham, the realisation of the divergences - which still continue - dimmed." P. 132
(footnote omitted).
21. See M. GLUCKMAN, THE IDEAS IN BAROTSE JURISPRUDENCE 170-203 (1965). Watson
wavers between disregarding and reluctantly acknowledging the historical specificity of con-
tractual ideas:
It was a weakness of Roman law that no general system of contract emerged but only
individual contracts. . . . We should not be too ready to blame the Romans for not mak-
ing a development which we, with hindsight, can regard as logical and appropriate, but it
may be reasonable to blame them for not recognising certain situations as giving rise to a
contract. The most obvious and worst instance of a non-contract is barter.
P. 18. This passage also illustrates how Watson conflates description and evaluation. The
judgmental tone of the analysis could hardly be more pronounced: weakness, blame, logical,
appropriate, obvious, worst.
too likely to fit its new domicile better" (p. 79). But he is ahistorical
in an even more fundamental way. He judges the "appropriateness"
of every law by a single standard - whether it promotes efficient
social engineering - despite the fact that law has been viewed as
capable of ready manipulation to serve consciously chosen ends
only during the past few hundred years and even then primarily in
Western nations.22
Perhaps the most serious problem with Watson's theory is that it

is not a theory at all. Once he has qualified his assertions to accom-
modate the inevitable objections, there remains little more than a
recommendation that we give greater weight to certain elements in
our model of law in society, an argument with which few would
quarrel. In order to show this I must back up a few steps. I noted
earlier that Watson is drawn to exaggerate the claims of his theory in
order to accentuate its differences from the theories that he criti-
cizes.23 Examples abound throughout the book:
The argument of this book is that in the West rules of private law have
been and are in large measure out of step with the needs and desires of
society and even of its ruling elite; to an extent which renders implausi-
ble the existing theories of legal development and of the relationship
between law and society. The ability and readiness of society to toler-
ate inappropriate private law is truly remarkable. The main but by no
means sole cause of this divergence is inertia, a lack of serious interest
in developing legal rules to a satisfactory point and in changing them
when society changes. Theorists seeking to understand the nature of
law have neglected the significance of inertia and the longevity of legal
rules. [P. ix.]
"The life of the law has not been logic: it has not been experience: it
has been borrowing." In general the most important element in legal
development has been the transplanting of legal rules, principles and
systematics from one jurisdiction to another.2
. . .The first conclusion must simply be that there does not exist a
close, inherent, necessary relationship between existing rules of law
and the society in which they operate.25
Yet, these assertions are too broad: They simultaneously deny the
possibility of any theory and contradict both our daily experience
and virtually all scholarly research on law in society. Watson is thus
forced to concede that "some kind of general correlation would in no
22. Watson hints at differences in how and to what extent law is subjected to contempora-
neous criticism, but this does not fundamentally alter his approach. P. 76.
23. See text following note 11 supra.
24. P. 79 (footnote omitted).
sense be hostile to the thesis in this book."26 But then the central
question re-emerges. If the relationship between law and society is
not wholly random, it is necessary to offer a social explanation for
the existence of each law through time, whether that law has been
borrowed, is a historical residuum, or has recently been promul-
gated. Watson fails to offer such an explanation, although he has
some interesting things to say about the sources of borrowed laws
and the historical origins of existing practices. Furthermore, even if
one concedes (as I think one must) that the strength of the relation-
ship between law and society varies among societies, across time
within a society, and among legal institutions within a given society
at any given instant, it is still necessary to explain this variation.
Watson does not do so.27
The most that Watson does is to offer a series of metaphors that

seem to do more to mystify the linkage than to illuminate it. He sees
the law as sluggish, inert, never really able to get it together to do
what it knows it ought to - consumed by yawns, like Oblomov.28
He refers to society as a "home" or a "domicile" for these lazy laws
(pp. 98, 79). By a slight metaphorical extension, society might be
seen as the tolerant housekeeper who alternately ignores the mess
that law makes and tidies up afterwards. For, as we will see below,
there is yet another element in this metaphor: What is needed is a
strict taskmaster who will make the law shape up. But these meta-
phors actually do little to advance our understanding - no more,
say, than referring to the law as "a ass - a idiot"29 or a "jealous
mistress."30
Many of the difficulties with Watson's theory of society and legal
26. P. 125. Elsewhere he goes even further: "[I]t should be stressed that most statutes
concerning private law are in line with at least what is conceived to be the interest of society or
the rulers." P. 118. Hence, Watson's objection appears to be that he knows people's true
interest better than they do.
27. Watson occasionally suggests such variation, as when he asserts, "[E]veryone would
accept that certain problems are common to many relatively simple societies .. ." P. 4. He
also quotes both Friedrich Engels and the legal anthropologist Paul Bohannan to the effect
that, as society is progressively differentiated, the connection between legal and other social
institutions becomes less intimate. Pp. 6-7. A systematic development of this idea can be
found in Mayhew, Stability and Change in Legal Systems, in STABILITY AND SOCIAL CHANGE
(B. Barber & A. Inkeles eds. 1971). Yet, at other times he seems to deny even the possibility of
such comparisons: "It is, of course, impossible to determine whether Roman law or English
law was less out of harmony with its society. No test exists which could measure this." P. 76.
28. I. GONCHAROV, OBLOMOV (New York 1929) (1st ed. Moscow 1859).
29. P. 79 (quoting Mr. Bumble in Charles Dickens's Oliver Twist).
30. See also H. Maine, Ancient Law 21 (1963) (discussing stationary and progressive socie-
ties). The analogy between society and organism, comparable to the pathetic fallacy in litera-
ture, is the object of a scathing and thoroughgoing attack by Robert Nisbet, with whose
approach Watson is otherwise in substantial agreement. See note 7 supra.
change are common to other theoretical structures. By inverting the

functionalism that underlies Savigny, Ihering, and even Marx, Wat-
son has necessarily preserved the flaws that are fundamental to at
least the vulgarized versions of these theoretical traditions. The cen-
tral flaw is the insistence upon explaining law only as an instrumen-
tal means to a material goal or, as with Watson, the homologous
insistence that the law has no explanation because it does not ad-
vance such a goal.31 Such a monocausal view has long impoverished
social studies of law: Sociologists have been condemned endlessly to
rediscover the "gap";32 economists strive relentlessly to find the legal
framework that will achieve "the" efficient allocation;33 policy
"scientists" fiddle with rules and institutions in the search for maxi-
mum impact; and Marxists document once again how some laws di-
rectly support capitalism. Yet, if these studies teach us one thing, it
is the inadequacy of the theoretical framework they share. Law does
not just advance or frustrate material goals; it can also be expressive,
mystifying, or legitimating; it can provide an arena for status compe-
tition. Once this complexity is recognized, explanations are immedi-
ately suggested for what puzzles Watson: the failure of law to
change rapidly and the particular changes that do occur.34 Law is
constrained not only by instrumental goals but also by the require-
ment that it be accepted as legitimate, and the considerable difficulty
of legitimating legal change (where the exercise of power is most
clearly visible) is a major reason for stasis and for the limited range
of the changes that do occur.
The very complexity of all social phenomena is reason enough
for seeking a more varied theory to link one sub-set, legal phenom-
ena, with others. For instance, Watson is often distressed by the ri-
gidity of the categories of substantive law, which produce what seem
31. I have argued above that "inertia" is not an explanation but the metaphorical use of a
concept borrowed from psychology, which in turn borrowed it from physics, where alone it has
a precise meaning.
32. See Abel, Law Books and BooksAbout Law, 26 STAN. L. REV. 175 (1973); Abel, Fore-
word to 12 LAW & SOCY. REV. 487 (1978).
33. For criticisms, see Baker, The Ideology of the Economic Analysis of Law, 5 J. PHIL. &
PUB. AFF. 3 (1975); Heller, The Importance of Normative Decisionmaking, 1976 Wis. L. REV.
385; Kelman, Consumption Theory, Production Theory, and Ideology in the Coase Theorem, 52
S. CAL. L. REV. 689 (1979). See generally Sumposium on Efficiency as a Legal Concern, 8
HOFSTRA L. REV. 485-810 (1980);A Response to the Efficiency Symposium, 8 HOFSTRA L. REV.
811-972 (1980).
34. For instance, Watson deplores the persistence of certain aspects of the Roman sales
contract in other countries and subsequent periods: "The fascinating thing is that the lawyers
all - explicitly or not - considered the question in terms of Roman law and minor deviations
from it. The example of Rome obscured from them the possibility of a more radical solution."
P. 100.
to him to be undesirable results. But an adequate understanding of

why this occurs would require a grasp of linguistics, a recognition of
the distinctive properties of legal language, and a theory of why legal
language is differentiated in varying degrees in different societies.35
As this example shows, it is not possible to give an acceptable expla-
nation of a single legal phenomenon in terms of some other equally
isolated phenomenon. Watson nevertheless attempts to do so:
It would seem in many cases [that] it will not matter greatly to society
whether the law adopts solution A or solution B; the choice is socially
neutral. [P. 134.]
And he concludes:
This can only mean that the role of private law rules in the well-being
of the state, in the prosperity of merchants, in the happiness of individ-
uals, is greatly exaggerated by lawyers and legal theorists. [P. 132.]
But Watson misconceives the relationship between private law and
the state. Total legal systems are imbedded in, and support, entire
societies. In order to see all of the connections between law and soci-
ety, it is necessary to find substantial variation in the totalities, which
means casting one's comparative and historical net very widely. No
economist, for instance, would argue that a country's currency is un-
related to its capitalist economy simply because England's shift to
decimal coinage was relatively painless. The significance of money
can only be seen if comparison is made with a nonmonetary econ-
omy. Watson's decision to restrict himself to "developed Western
law," excluding both tribal societies at one extreme and socialist
states at another, similarly limits the scope of his analysis.36
Although Watson occasionally recognizes that lawmaking is a
complex process involving multiple institutions and the interaction
of numerous actors whose interests are often inconsistent,37 he never
carries his analysis through to a logical conclusion. Thus, at the very
outset of his argument he notes that laws, once passed, "are kept in
35. See L. FALLERS, LAW WITHOUT PRECEDENT (1969); Abel, supra note 10; Danet, Lan-
guage in the Legal Process, 14 LAW & SOCY. REV. 445 (1980).
36. P. 6. This is especially unfortunate since there is reason to think that the degree of
interrelatedness between legal and other social phenomena - the central concern of this book
- exhibits its greatest variation across those societies.
37. Suggestions of a more complex view of law in society are scattered throughout the
book, both in asides and qualifications and in concrete examples. Sometimes Watson ac-
knowledges the expressive quality of law: "Legislation - even on private law - is very often
a 'gut reaction,' an immediate, strong response to some particular event." P. 117. If this is true
of private law, how much more is it likely to characterize public law, especially criminal legis-
lation? This is, of course, Durkheim's well-known theory of the criminal law, which has stim-
ulated a wealth of empirical studies that generally support it. See E. DURKHEIM, THE
DIVISION OF LABOR IN SOCIETY (Simpson trans. 1947). John Hagan, in an extensive survey of
studies of criminal legislation, examined two instrumentalist perspectives - liberal pluralist
and Marxist - and rejected both in favor of a more complex explanation that emphasizes
existence by factors such as the absence of effective machinery for

radical change, by indifference, by juristic fascination with technical-
ities, and by lawyers' self-interest" and continues in a footnote: "Of
course, the machinery for, and effectiveness of, legal change will
vary from place to place and time to time" (pp. 8, 11 n.20). Here is
the foundation for a sociology of law that would look at both institu-
tional structures and the socialization and organization of the per-
sonnel who staff them.38 Occasionally Watson does look at these, as
when he observes that "once draft legislation is prepared it may fail
to pass the legislature simply because of pressure of business" (p.
117). Even here, however, the analysis does not fulfill its promise,
largely because it is strangely devoid of political content - a prob-
lem to which I will return below.39 We are not told why the re-
sources of the legislature are insufficient to the demands placed upon
it nor why, with its limited resources, the legislature chooses to sat-
isfy some demands and not others; nor are we told the circumstances
under which, or the extent to which, the interpreters of the law - the
lawyers - can pursue their own interests, or how these interests cor-
respond with those of other groups in society.
The constant refrain of Law and Society - that most laws are
useless - tends to obscure what insights the book does offer. I shall
try to show what is lost in Watson's analysis by briefly presenting
and reanalyzing some of his own examples.
Although Watson begins with illustrations from Roman law, he
soon turns to English law to forestall the objection that the peculiar
Roman concern for legal theory may explain its abstraction from
expressive and status factors. See Hagan, The Legislation of Crime and Delinquency. A Review
of Theory, Method, and Research, 14 LAW & SOCY. REV. (1980).
At another point, Watson discusses David Daube's theory that the institution ofpatriapo-
testas was a form of status competition among the Roman elite:
The principal explanation of the tenacity with which the Roman upper classes - for it is
only a question of that minority - stuck to these incredible rules is that they saw them as
expressing, and safeguarding, their innate superiority over the foreign rabble and proba-
bly, in course of time, also over the rabble at home. There is no limit to the hardship
people will bear for the sake of status, national or sectional.
Pp. 28-29 (quoting D. DAUBE, ROMAN LAW 85-86 (1969)). However, Watson ultimately re-
jects Daube's theory on the ground of inadequate evidence, although he offers no more evi-
dence for his own characterization ofpatriapotestas as "purposeless."
Joseph Gusfield has given a persuasive account of the American experiment with Prohibi-
tion - an equally "purposeless" law - as the result of status competition. See J. GUSFIELD,
SYMBOLIC CRUSADE (1963). John Hagan has generalized this interpretation and applied it to
other laws. See Hagan, supra.
38. The power of the interpreters to reform the law or keep it static is, despite every-
thing, considerable. These interpreters will form a small group within a society - indeed,
a small group even among themselves - and their views need not correspond to those of
society as a whole.
P. 121.
39. See notes 52-54 infra and accompanying text.
daily life (pp. 43-44). He devotes a chapter to English land law, cer-
tainly one of the more complex and obscure bodies of legal rules,
and concentrates on the failure of the English to abandon this system
for one of comprehensive, compulsory land registration. He consid-
ers and rejects a number of possible explanations, including the lack
of enthusiasm among lawyers, both for economic reasons and be-
cause "it is natural that a lawyer should derive pleasure from the
contemplation of an excellent piece of applied technique" (p. 58).
But by thus understating the case, he obscures what we know to be
the real reason for the interminable delay in embracing a scheme of
land registration: the deliberate and energetic opposition of the or-
ganized profession. This has long been notorious and is thoroughly
documented in recent historical and critical scholarship.40 Further-
more, the motive for that opposition is not the pleasure of aesthetic
contemplation but simple greed: English solicitors still derive be-
tween thirty and sixty percent of their income from conveyancing,
depending on the size of the firm.41 Thus Watson's conclusion - "a
body of law which is technically satisfying is not for that reason
alone suited to the needs of society" - should be the beginning of
analysis, not the end, a signal to search for whose needs it does sat-
isfy, not grounds for a premature conclusion that the rules have no
meaning.42
Watson's next example is the English law of libel and slander,
again a source of results that often appear bizarre. Here, too, he
ignores the obvious explanation that complexity and uncertainty
serve the interests of a powerful identifiable group, namely lawyers,
whose efforts have in fact fostered just those qualities. But there is
another way of viewing the rules of defamation, which Watson's the-
40. See, e.g., B. ABEL-SMITH & R. STEVENS, LAWYERS AND THE COURTS 59-61, 198-99
(1967); M. ZANDER, LAWYERS AND THE PUBLIC INTEREST 171-72 (1968); Spring, Landowners,
Lawyers, and Land Law Reform in Nineteenth Century England, 21 AM. J. LEGAL HIST. 40
(1977). For a general sociological theory of the professional struggle for market control under
capitalism, see M. LARSON, THE RISE OF PROFESSIONALISM (1977).
41. 2 ROYAL COMMISSION ON LEGAL SERVICES, FINAL REPORT, CMND. NO. 8648-1, at 107
(1979).
42. P. 58. This failure to pursue a political analysis is visible elsewhere. Watson notes that
in automobile accidents today the driver may not be sufficiently insured, so that the victim
may go uncompensated. The United Kingdom has compulsory insurance; the United States
does not. This he finds absurd, since
it has been obvious that any Government anywhere, at no real cost to itself since it could
recoup from a levy on motorists, could introduce a system of reasonable protection for the
victim (or, if one prefers, at least for innocent victims) of automobile accidents.
P. 106 (footnote omitted). This is only obvious if one remains ignorant of political reality.
Private insurance companies wish neither to be forced to insure drivers who may be poor risks,
nor to allow the state to enter the insurance business, which they fear may be the thin wedge of
nationalization. See, e.g., R. KEETON & J. O'CONNELL, BASIC PROTECTION FOR THE TRAFFIC
VICTIM 91-102 (1965).
oretical framework and methodology do not let him see. I argued

earlier that Watson views law as narrowly instrumental, perhaps be-
cause he wants it to be instrumentally efficacious. Thus, when he
perceives a disjunction between the purpose that he assigns a law
and its actual consequences, he concludes that the law is both point-
less and socially harmful. The value of this approach will vary with
the legal subject matter: Land law has arguably been of vital impor-
tance to English society over the past five hundred years; it is not
obvious that the same can be said of the law of defamation. In order
to determine the importance of defamation law it would be neces-
sary to look beyond the substantive rules (the law in the books) to
how they are invoked in litigation, in negotiation, in discussions, and
even in reflection (the law in action). To determine what would con-
stitute frequent or rare invocation, we would have to compare con-
temporary England with other societies. Although those studies
have not been done, I think that we can hazard some educated
guesses about what we would find. With the emergence of mass,
urban, industrialized society the defense of reputation against verbal
or written attack, which is a preoccupation of conflict in tribal and
peasant societies, rapidly declines in importance.43 Furthermore, the
characteristics of the disputants change: Instead of disputes among
kinfolk, neighbors, and workmates, we find relatively public person-
ages suing the mass media, or occasionally each other. Disputes over
defamation often seem to take on the aspect of a game; indeed, one
party may utter the defamation precisely to force the other to sue, in
order to publicize the dispute.44 Defamation rules, then, are not util-
itarian in any narrow sense: They neither compensate the victim for
the injury to his reputation nor deter the utterance of injurious false-
hoods in the future. Instead, they provide a framework within which
individuals can fight for status. If this is so, then the precise content
of the rules is irrelevant. The more complex and arbitrary they are,
the better. This is a very different interpretation of defamation law
from that offered by Watson:
43. I have sought to document this for Kenya. See Abel, Case Method Research in the
Customary Laws of Wrongs in Kenya. Part II: SlatisticalAnalysis, 6 E. AFR. L.J. 20, 27-28, 34-
35 (1970); for Africa more generally, see Abel, Western Courts in Non- Western Settings. Pat-
terns of Court Use in Colonialand Neo-ColonialAfrica, in THE IMPOSITION OF LAW 188-89 (B.
Harrell-Bond & S. Burman eds. 1979); for Turkey, see Abel, Book Review, 27 UCLA L. REV.
223, 232-34 (1979) (reviewing J. STARR, DISPUTE AND SETTLEMENT IN RURAL TURKEY
(1978)); and in general theoretical terms, see Abel, Theories of Litigation in Society, 6
JAHRBUCH FOR RECHTSSOZIOLOGIE UND RECHTSTHEORIE 165, 170-78 (1979). Vivid accounts
of disputing in societies where reputation is of vital importance can be found in HONOUR AND
SHAME (J. Peristiany ed. 1965); GIFTS AND POISON (F. Bailey ed. 1971).
44. See J. DEAN, HATRED, RIDICULE, OR CONTEMPT 235-39 (1953).
Despite its importance for the happiness of individuals and the welfare
of society, the law of defamation has been and is marred by grave de-
fects which have caused it to be inefficient and out of step with the
needs and desires both of society as a whole and with any ruling
elite.45
Although I would not claim that I have proved my case, Watson has
certainly offered no evidence that the law of defamation significantly
affects either the happiness of individuals or the welfare of society.
A third illustration may be taken from a chapter in which Wat-
son enumerates many instances of what he calls "legal scaffolding,"
elaborations of the law that attempt to correct earlier errors but actu-
ally produce more problems than they solve. These structures reach
a level of complexity that is often humorous: He quotes a piece of
English subordinate legislation that took nearly half a page just to
announce its own title (p. 95). But by highlighting the ridiculous in
an effort to demonstrate the inutility of these laws, Watson obscures
their actual functions. A case in point is a South African criminal
prosecution in which the single charge against the accused required
references to four regulations, four government notices, and a stat-
ute. Yet this complexity was not accidental, dysfunctional, or even
inefficient. Watson comments that "the body of the charge conveyed
that the defendant being an Asiatic male had entered a particular
part of a sea-shore which had been reserved for the exclusive use of
whites."46 In other words, this "whites only" rule was part of a body
of racist regulations whose very comprehensiveness, arbitrariness,
and incomprehensibility allowed a small white elite to use the forms
of liberal democracy to enforce totalitarian controls upon a large
Asian, African, and mixed population.47 But in order to acquire this
insight it is necessary to abandon the attempt to explain individual
laws in terms of their narrow self-proclaimed instrumental purposes
and instead consider how an entire body of law interrelates and is
administered.
One additional set of illustrations will have to suffice to substan-
tiate my argument that it is futile and positively misleading to at-

47. Douglas Hay recently made this approach central to his analysis of how eighteenth-
century English criminal procedure "put the instruments of terror directly at the disposal of
the dominant socio-economic actors, but under the guise of an impartial, determinate, and
humane rule of law." See Klare, Law-Making as Praxis, TELOS, Summer 1979, at 123, 130
(summarizing Hay, Property, Authority and the Criminal Law, in ALBION'S FATAL TREE
(1975)). For an American example of the use of equally vague vagrancy laws to control the
workforce, see Harring, Class Conflict and the Suppression of Tramps in Buffalo, 1892-1894, 11
LAW & SOCY. REV. 873 (1977).
tempt to develop a coherent and internally consistent theory of law

with the theoretical and methodological tools that Watson has cho-
sen. The first concerns "legal transplants," the subject of a previous
book and a chapter in this one.48 Watson first attempts to determine
the source from which a particular country chose to borrow its laws,
but his conclusions are sociologically and politically unsatisfying.
"In the first place," he states, "the donor system may be chosen be-
cause of the general respect in which it is held" (p. 98); but surely it
must be rare for the laws of one country to arouse "general respect"
in the people of another. If the concept of "respect" is to have any
meaning, except as rhetoric, it is necessary to specify the small elite
(presumably a functionally specialized category) whose "respect" is
significant. The same difficulty troubles the next explanation: "In
the second place national pride may determine that borrowings
should be made, or should be restricted, from some particular sys-
tem."49 The reified concept of "national pride" does not become
clear until Watson gives an example. There is strong opposition in
Scotland to the importation of English law and to the assimilation of
the two bodies of law. Yet, that opposition is an expression not of
"general respect" or "national pride" but rather of the political views
of identifiable individuals - T.B. Smith, then a professor of Scottish
Law and now a Scottish Law Commissioner; another Scottish Law
Commissioner; the Commission as a whole; and Professor A.B. Wil-
kinson - who constitute a coherent category of academic Scottish
lawyers (pp. 102-03). Nor does it refute the explanation grounded in
the self-interest of academic lawyers to show that the Law Society of
Scotland favors greater reconciliation of the two bodies of law and
even ultimate consolidation:50 Although I know nothing of the ac-
tual facts, it seems plausible to me that Scottish lawyers are losing
divorce and business clients to English competitors and hope to
regain or acquire them through the assimilation of English law.
The last two reasons for the source of legal transplants that Wat-
son considers are "language and accessibility" and "past history (pp.
104-05). These bland concepts once again conceal the political
sources that actually influence choice. Watson seeks to explain the
fact that "neighbouring countries in Africa may have basically a
48. See note 1 supra.

49. P. 102. Empirical research concerning public knowledge about law strongly suggests
that national pride is preoccupied with other concerns. See generally A. PODGORECKI, W.
KAUPEN, J. VAN HOUTTE, P. VINKE, B. KUTCHINSKY, KNOWLEDGE AND OPINION ABOUT
LAW (1973); Sarat, Studying American Legal Culture. An Assessment of Survey Evidence, 11
LAW & SoCY. REV. 427 (1977).
50. See pp. 103-04 (quoting the Law Society of Scotland).
Common Law or a Civil Law system" (p. 105). But most people in
any African country speak neither English nor French; they have
little or no access to the (borrowed) national legal system; and their
historical experience has been one of oppression by the colonial
power. Language, law, and history are shared only by colonial rul-
ers and the elites that they preserved or created. It was therefore the
coincidence of interests between metropolitan and colonial political
and economic elites that explains the decision to retain the colonial
legal system: The former gained political influence and trade advan-
tages, the latter strengthened the support of the metropole for their
continued dominance, and were enabled to legitimate that domi-
nance internally by their superior ability to manipulate the legal
system.51
III. LAG AS POLITICAL IDEOLOGY
Watson's analysis of law in society contains an implicit s

theory, which I have tried to bring out above. But like all
theory it also expresses a politics, a set of underlying values
the society that he would like to have. To understand Watson's
tics, it is once again useful to begin with the title of the boo
choosing "society and legal change" rather than the more com
"law and social change,"52 Watson implies that law necessarily
behind social norms and behavior, that it can only be a force
reaction not progress. A political ideology of law as lag would
consistent with a Benthamite impatience, which is clearly evide
Watson's contention that "every demand for law reform is a recog
tion that law has come to diverge from society" (p. 132). Wha
singularly lacking in this view is any notion that law ought to
society, ought to be an instrument for radical change, from wh
infer that he opposes such change.
Watson's portrayal of law as lag is, moreover, distinctly apo
cal. He does not tell us how specific social actors - individu
groups - seek to preserve the status quo or why they pr
Rather, his explanation may be summed up in the term "inert
rhetorical personification of social structure and behavior that
51. For an account of how the economic, political, and legal institutions imposed d
colonialism preserve the dependence of the former colony upon the metropole after po
independence, see C. LEYS, UNDERDEVELOPMENT IN KENYA (1974). A thorough study
transplantation from England to Ghana of a particular legal institution, the public c
tion, is R. POZEN, LEGAL CHOICES FOR STATE ENTERPRISES IN THE THIRD WORLD (
52. See, e.g., J. COLLIER, LAW AND SOCIAL CHANGE IN ZINACANTAN (1973); W. F
MANN, LAW IN A CHANGING SOCIETY (2d ed. 1972); W. HARVEY, LAW AND SOCIAL CH
IN GHANA (1966).
cause advanced as a self-contained interpretation, fails to recognize

the need for political analysis. I tried to show earlier that Watson
consistently conceals the political element in his statements of and
explanations for such phenomena as the English conveyancing rules
and the imposition and preservation of metropolitan law in the colo-
nies. This perhaps unconscious concealment is consistent with his
basically conservative world view. Nor is the connection between
conservatism and apolitical interpretation accidental. Those who
have denied the existence of pattern and necessity in history
scholars like Karl Popper and Robert Nisbet53- have been political
conservatives seeking to confute radicals, notably Marx and later
Marxists, who maintain that historical trends do exist and should be
used to further progressive causes.
When Watson does mention politics, his goal seems to be to fore-
stall criticism, to trivialize the political by ticking it off before going
on to more important things. Sometimes he is quite explicit about
his motives: "[O]ne advantage of this way of proceeding is that we
need not concern ourselves with the definition of such sociological
concepts as stratification, class, power" (p. 9). To this end he defines
the process of legislation as fundamentally apolitical, in the sense
both that it has no political content and that therefore politics can
only distract from legislation:
[F]or radical law reform something like legislation is usually
needed. . . . [O]ften legislation is not forthcoming, at least for centu-
ries. The basic reason for this is quite simply that the body or individ-
ual which has control over legislation on private law often has
insufficient time or interest for law reform since it is usually charged
with other functions especially of a political nature. [P. 115.]
Similarly, once draft legislation is prepared it may fail to pass the legis-
lature simply because of pressure of business. [P. 117.]
Yet, the notion of legislation as apolitical is too clearly counterfac-
tual to be maintained for long. Watson therefore makes a conces-
sion that he phrases in such a way as to belittle the insight it
contains:
[I]t scarcely needs to be said that often legislation is and has been the
result of pressure from overt or hidden groups. Clearly a law may
result which is beneficial to the group but does not conform to what
society as a whole needs or wants. If little is said about this phenome-
non here it is only because it is so obvious and well recognized.54
This seems to give the whole game away. If legislation is "often"
political - as we all know to be, if anything, an understatement
53. See R. NISBET, supra note 7; K. POPPER, supra note 7.

then politics and not inertia must be the starting point for the study
of "society and legal change." Watson can only save his original
approach in the face of that insight by depoliticizing the political,
using techniques perfected by liberal political scientists in the last
few decades. He minimizes the magnitude of social conflict in order
to obscure the extent to which the interests of individuals and groups
are incompatible.55 Although he cannot deny outright that the con-
flict exists, since this contradicts our entire experience, his recurrent
personification of society as an entity with "needs and desires"
strongly suggests that these are unitary and consistent. Occasionally
the image is even more unambiguous, as when he states, "I use the
word 'society' as a shorthand way of describing the people inhabiting
a particular territory, or the citizens of a particular state" (p. 9).
Since Watson can only hint at social harmony through implica-
tion and metaphor, he must launch a direct attack upon those theo-
ries that make social conflict their central concern. He does so by
embracing a view of society that, in the United States, would be as-
sociated with libertarianism, and elsewhere would be identifiable as
an extreme form of individualism:
Some legal theorists, as is well-known, have indeed maintained that
what is good for the society or the class is good for each individual
member of the society or class . . . I do not share [this view]. The
interests (and wishes) of an individual are, I believe, often at variance
both with those of his society as a whole and with his class. [P. 8.]
This ideology attempts to undermine not only class analysis but even
the significance of pluralistic interest groups, except those of the
most transitory and fluid sort. Because Marxist class analysis is
more fundamentally irreconcilable with Watson's position, both the-
oretically and politically, he is more scornful of it. His strategy is to
ridicule Marxism by selecting extracts from its more vulgar
proponents:
We Marxists assert that law is carried out in practice by means of coer-
cion and violence, because all law is a class law, and the law of the
class without coercion is not a law.56
This is not Marx, or Engels, or Lenin, or Pashukanis, or Gramsci, or

Lucas, or indeed the writing of any recognized Marxist theorist, but
rather the oral remark of an obscure Russian, Tumanov, at a confer-
ence in Soviet Georgia in 1930. And when Watson cannot find a
quotation from any Marxist that will make his point, he engages in
implicit attribution:
55. See, e.g., D. BELL, THE END OF IDEOLOGY (1960).

If one subscribes to the view that all law is class law then one has to say
that those in charge of legalities do not feel a deep need to keep private
law in line with the apparent needs of society; that this role is to a very
considerable extent delegated in effect to judges or jurists who, how-
ever, are not put into a position where they can do the job efficiently or
effectively. [P. 89.]
No doubt there are writers trapped in such narrow instrumentalism,
but they are hardly representative of contemporary Marxist
scholarship.57
Watson is more ambivalent toward the interest-group analysis
developed by contemporary political science out of the legitimating
ideology of liberal democracy, perhaps because a pluralistic universe
of multiple groups is clearly less threatening to his scheme than a
pair of irreconcilably opposed classes. He assimilates this liberal
pluralism to his own image of society by portraying interest groups
as amorphous and interchangeable and by identifying the elite as
simply the group that happens to be dominant at a particular
moment:
[G]roups with conflicting interests may be rather evenly balance

within the society. Rules may suit one class or one group which is very
active in preserving them. It might be suggested that the result in
society will be a mixture of some rules which harmonize with th
wishes and needs of the whole society or the ruling class and of oth
which suit particular groups or classes, and that form a pattern i
which the various interests of groups and individuals are represent
according to their strength in the society.58
57. This more sophisticated approach can be illustrated by a recent article by Isaac Bal
whose richness the following brief quotation can only suggest:
[T]he formulation that to the degree that the law does not respond directly to the demands
powerful social actors it is autonomous, in the sense that it functions and develops accor
to its own internal dynamics omits the possibility that the law is not autonomous from,
rather articulates with and must be explained by, the systemic requirements of capita
precisely because it does not respond directly to the demands of these actors.
. . . Stated otherwise, the autonomy of the Law from the preferences of even the mo
powerful social actors (the members of the capitalist class) is not an obstacle to, but rat
a prerequisite for, the capacity of the Law to contribute to the reproduction of the ove
conditions that make capitalism possible, and thus its capacity to serve the interests
capital as a class.
Balbus, Commodity Form and Legal Form. An Essay on the "Relative Autonomy" of th
11 LAW & SocY. REV. 571, 572, 585 (1977) (emphasis in original). See E. THOMPSON, W
AND HUNTERS (1975); Fraser, The Legal Theory We Need Now, SOCIALIST REV., July
1978, at 40-41.
58. Pp. 8-9. This is not an isolated instance; the model of liberal pluralism pervade
book:
If by pressing for a reform which is generally recognized as desirable, they [the legislat
could alienate even a small number of their supporters, they may prefer to stay aloof.
P. 115
[A]mendments of varying types may be accepted and the resulting legislation may corre-
spond to the wishes of no one and be not even a satisfactory compromise.
P. 117.
Although this comment seems to admit the significance of politics, in

fact it is deeply apolitical. The groups remain anonymous, as do
such concepts as elite or ruling class. Even more important, the
groups are portrayed as fungible, equally capable of influencing leg-
islation in the same way. That is precisely the ideology of liberal
democracy: The formal right of access to the political arena is con-
founded with actual equality within it.
But in fact Watson is not really an admirer of liberal democracy.
He emphasizes the power of small interest groups to block legislation
and tends to see the clash of inconsistent interests not as a necessary
process through which to arrive at the most satisfactory compromise
but as leading all too often to stalemate. The long quotation given
above, which could be taken as a paradigm of liberal ideology, is in
fact rejected by Watson as inaccurate (p. 9). But if the law-making
process does not produce politically satisfactory rules, it does at least
produce rules, and this, according to Watson, is all that is necessary
for society:
This brings us to the eighth conclusion that the essential, inescapable
function of a rule of private law is to help in avoiding or settling con-
flicts. The rule may also have, but need not have, the function of
resolving a dispute for the moral, social or economic well-being of the
society. Society's essential stake in rules of private law is the avoidance
or peaceful resolving of conflicts. This can occur only if formal justice
is applied between the parties to a dispute; both sides must be given an
equal chance to put their case, there should be no decision ad
hominem, similar situations should be judged alike, and so on.59
This, Watson's ultimate conclusion, is fundamental to his argument,
if it is also rather startling. It completes the process of depoliticiza-
tion: Both substantive rules and legal procedures are essentially neu-
tral. This means that lawmaking can properly be divorced from
politics and should be so divorced because politics is so inefficient
and often leads to dead ends. The necessary corollary is that formal
justice has meaning without reference to the content of substantive
rules and can be attained by correctly designed legal procedures, re-
gardless of the social system within which they operate. The latter
assumption is disproved by everything that we have learned from
empirical studies of law in society during the past few decades.60
When a small group wishes the law changed this seldom seems to arouse society to defend
the status quo.
P. 133
59. P. 134 (footnotes omitted). See p. ix.

60. See, e.g., Abel, Socializing the Legal Profession. Can Redistributing Lawyers' Services
Achieve Social Justice?, 1 LAW & POLY. Q. 5 (1979); Galanter, Why the "Haves" Come Out
Ahead- Speculations on the Limits of Legal Change, 9 LAW & SOCY. REV. 95 (1974). And see
The former assumption is the necessary foundation for Watson's

political program.
Just as Watson's theory of legislation is fundamentally apolitical,
so his prescription for better legislation is to remove it from politics,
which he sees as distorting or corrupting the perfect law. His book
ends with a call for citizens to hand over the lawmaking power to a
body of experts, who would be given the autocratic powers and other
resources necessary to replace our messy collection of rules - the
product of history and political conflict - with perfect codes:
[I]t would be beneficial to have a law making body intermediate be-
tween the courts and the legislature; with greater and more systematic
powers of law making than courts have, but not subject to the political
pressures experienced by legislatures.
. . .Theoretically it should be possible to make the legal rules co-

incide with the needs and desires of society. To some extent it is a
question of allocating sufficient resources. . . . Codes in the modern
world, whatever else they may be, should be seen as a step towards
deliberately rationalising the law. The same is true of the setting up of
permanent bodies with the duty of considering law reform.
The preparation of an original code represents a unique opportu-

nity to bring law into line with society at a single sweep ... .61
The lag in law is thus explained - it was caused by politics. And
the solution is clear - harmonize law with society by excluding the
political!
CONCLUSION
Professor Watson's book is a missed opportunity. Recent social

studies of law are impoverished by their parochial focus on contem-
porary legal institutions within a single country. Our theories could
be enormously enriched by comparative and historical scholarship.
But that scholarship must meet the canons of contemporary social
science. Let me summarize those criteria here, as I have applied
them in the Essay.62 The starting point must be a statement of val-
ues, for the scholar's vision of the good society influences not only
my editorial introductions to the Law & Society Review, vols. 11 & 12 (on unnumbered pages
introducing each issue).
61. Pp. 133, 136. Watson speaks admiringly of historical instances where this occurred:
"A strong Emperor or King ... could very quickly . .. make a legal reform which was obvi-
ously needed." P. 115.
62. I have attempted a more comprehensive statement of the position and prospects of
sociolegal scholarship. See Abel, Redirecting Social Studies of Law, 14 LAW & SOCY. REV. 805
(1980).
what he deems worthy of study but also the kind of explanations that
he will entertain. Some epistemological position must also be chosen
and adhered to rigorously. One of the principal dangers to guard
against is the sociological equivalent of the pathetic fallacy - read-
ing into the actions of other individuals, and especially the actions of
groups and entire societies, one's own motives and aspirations, often
in the name of functionalism. These preliminary decisions will
largely determine the theory of society with which the investigator
begins - the nature of its constituent units (e.g., individuals, interest
groups, strata, or classes) and the relations between them (e.g., con-
flict or consensus, equal or dominant/subordinate).
I believe that we can, and must, be more positive about the
proper conceptualization of the legal ingredients of an adequate so-
cial theory. Because all institutions, the legal among them, perform
multiple functions, and all functions, including the legal, are per-
formed by more than one structure, it is essential that we define the
boundaries of study functionally and not, for instance, limit our in-
terest to state institutions. Because there is interaction among the
various institutions that perform legal functions, one institution can-
not be understood in isolation: A holistic approach is necessary to
comprehend how change in one part produces compensatory change
elsewhere. Finally, and perhaps most important, an adequate social
theory of law cannot be constructed out of the ideology that consti-
tutes the fundamental legitimation for contemporary Western legal
systems. That legislators, judges, administrators, lawyers, scholars,
politicians, and policy-makers justify laws in terms of their declared
purposes does not mean that such purposes explain those laws, nor
that the deviation of laws from their stated goals requires us, in de-
spair, to adopt a theory of law as lag. Law simply is not primarily
instrumental - there are usually many obvious and better ways to
attain the ostensible object; law is rather ideological, symbolic, ex-
pressive, and mystifying. If social analysis must always be sensitive
to latent functions underlying the manifest, this wider view is abso-
lutely vital for an understanding of law, which constantly seeks to
distract the observer with the siren call of "purpose." And among
the latent functions, one that deserves particular attention is the self-
interest of those occupational specialists (whether government offi-
cials or private professionals) who most vehemently proclaim the
manifest functions of law.
Comparative law and legal history no longer can be, indeed no

longer are, content to confine themselves to doctrinal analysis of pos-
itive law. But the social theory of law cannot be a mere adjunct to
doctrinal analysis, a series of qu

prise that otherwise remains unch
if taken seriously, forces us to co
inextricably involved in any acco
prescription for reform. Studies
materials to construct a social theo
preserved under changed social co
tence in terms of explicitly
contribution.

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Review: Law as Lag: Inertia as a Social Theory of Law

Reviewed Work(s): Society and Legal Change by Alan Watson

SOCIETY AND LEGAL CHANGE. By Alan Watson. Edinburg

In Society and Legal Change,l Professor Alan Watson has built

I. CONCEPTS OF LAW AND SOCIETY

The two central elements in Professor Watson's theory, naturall

A related ambiguity inheres in the multifaceted nature of law, all

parts of which are closely related. It is impossible to study one set of

II. SOCIAL THEORIES OF LAW

These conceptual problems are compounded by, and contri

as an expression of the relations of production and, therefore, as a

not seem familiar with later refinements of Marxist theory.II

would I go?"'5 The functionalist observes a social behavior or an

Western anthropologist who approaches a non-Western society with

Perhaps the most serious problem with Watson's theory is that it

The most that Watson does is to offer a series of metaphors that

Many of the difficulties with Watson's theory of society and legal

change are common to other theoretical structures. By inverting the

to him to be undesirable results. But an adequate understanding of

existence by factors such as the absence of effective machinery for

39. See notes 52-54 infra and accompanying text.

oretical framework and methodology do not let him see. I argued

45. P. 72 (footnote omitted).

tempt to develop a coherent and internally consistent theory of law

48. See note 1 supra.

III. LAG AS POLITICAL IDEOLOGY

Watson's analysis of law in society contains an implicit s

cause advanced as a self-contained interpretation, fails to recognize

53. See R. NISBET, supra note 7; K. POPPER, supra note 7.

This is not Marx, or Engels, or Lenin, or Pashukanis, or Gramsci, or

55. See, e.g., D. BELL, THE END OF IDEOLOGY (1960).

[G]roups with conflicting interests may be rather evenly balance

Although this comment seems to admit the significance of politics, in

59. P. 134 (footnotes omitted). See p. ix.

The former assumption is the necessary foundation for Watson's

. . .Theoretically it should be possible to make the legal rules co-

The preparation of an original code represents a unique opportu-

Professor Watson's book is a missed opportunity. Recent social

Comparative law and legal history no longer can be, indeed no

doctrinal analysis, a series of qu

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