AN INTRODUCTION

TO THE
SOCIOLOGY OF LAW
(third edition)

(previous title: "A Primer in the Sociology of Law")

by

Dragan Milovanovic

Criminal Justice Press

Monsey, New York

2003
 INTRODUCTION

To study law is to study the evolving structures of society in a devel­

'
oping political economy. In addressing the question ''\Vhat is law?" one
responds to the question of how society is organized. In this introductory
text, our goal is to introduce interested readers to some of the dominant
thoughts in Western Society on the subject of the sociology of law.
To this end we will present, in Part 1 , the classical theorists: Emile
Durkheim, Max Weber and Karl Marx. \Xie will be particularly concerned
with their views concerning the development of society, the form of law
and legal thought, the juridic subject (the so-called "reasonable man in
law"), the contract, and the idea of private property rights. An understand­
ing of the classical theorists provides us a foundations for understanding
emerging perspectives in the sociology of law. In Part 2, we will examine
some contemporary perspectives in the sociology of law, focusing on so­
ciological jurisprudence, legal realism, the critical legal studies movement,
feminist jurisprudence, critical race theory, the structural approach, the
autopoietic view, the behavioristic perspective of Donald Black, legal semi­
otics, a Marxist semiotic approach, and a postmodern view in law with two
specific examples - postmodernist feminism and the constitutive ap­
proach.
These theorists and perspectives have been chosen because of their
centrality in current trends in the sociology of law. Because this is an intro­
ductory text, many less central theories relating to the diverse facets of law
have been necessarily excluded. Nor have we embarked on a lengthy history
of the sociology of law. Empirical studies have also been avoided in favor
of concentrating intensively on the key thoughts in a discipline that is still
in its infancy. In fact, one of the major problems is to establish what falls
within the sociology of law, and what does not.

Defining the Domain of Inquiry

There are two general approaches to the study of law. One approach
we may call jurisprudence (or, alternatively, legal science, sociological jurispru­
dence or legal dogmatics). The second approach is the sociology of law. Since
the latter part of the 1980s, perhaps a third approach, legal semiotics, has
taken form, and it is unclear whether in fact it will eventually be a subdivi-

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sion of jurisprudence or the sociology of law, or retain some autonomous

standing.
Members of the legal profession are most often concerned with juris­
prudence. Social scientists, on the other hand, are more likely to identify
with sociology of law. For the sake of clarifying domains of inquiry (that
which is the focal point of inquiry), let us provide a working definition of
each and then some explanatory remarks.
Jurisprudence is the study of:
(1) the existing system of written rules, established in codified form
by the state (statutory and case law);
(2) their ongoing systematization into a body of relevant law by
some coordinating principle of justification;
(3) the application of doctrinal legal discourse that is structured by
a relevant morphological structure (word meanings) and syntac­
tical structure (linear constructions of narratives and texts) in
doing "correct" reasoning in law;
(4) the formal, logical application of abstract and general legal
propositions and doctrines by the use of doctrinal legal dis­
course to "factual" situations by a specialized staff which pro­
vides a high degree of probability of resolution of the issue(s) in
controversy; and
(5) the analysis of how all conflicts can be inevitably subsumable
(self-referencing) to some absolute postulates, which provide
the body of core premises and criteria for the correct resolution
of differences in a self-regulating (homeostatic) formal system.
Members of the legal profession, be they practitioners or law profes­
sors, due to their educational experience provided in law schools and the
continuous affirmation in everyday practice, internalize this emphasis in
law. fWe should add, too, that many legislators are legally trained.) It be­
comes the focal point of their practice. Rules promulgated by the legislative
branch are taken as a given. Abstract legal propositions are applied to
"factual" situations (the "what happened?") in an attempt to resolve differ­
ent conflicts (e.g., one learns how to apply an "equal protection" or a "due
process" analysis that is rooted in the Fourteenth Amendment to the U.S.
Constitution). Precedents, or stare decisis, provide a background that con­
strains decision-making processes. A specialized staff - lawyers, trained in
a specific discourse - apply their learned skills to points of controversy.

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The doctrinal legal discourse in use is s tructured by two axes: the morpho­
logical structure and the syntactical structure.
The morphological s tructure is the repository of correct legal mean­
ings of words (e.g., words such as intent, duress, reckless, person, etc., have
legally bestowed meanings). The syntactical s tructure provides the correct
method of linear construction of these words in narratives and text. In
other words, within legal practice there is a particular way of constructing
narratives: for example, in cross-examination there are particular methods
of not leading witnesses, of introducing evidence, etc. (see Tiersma, 1 999) .
Any situation is said to be resolvable in law. One only needs to find
the appropriate rule and premise(s), and by the use of formal logic - spe­
cifically, syllogistic reasoning and deductive logic - to proceed s tep by step
toward the correct conclusion. "Truth" is said to exist independently of
discourse, politics, and subjective evaluations. It can be discovered by the
correct legal reasoning. It can be objectively obtained by the clash of two
opposing sides, the prosecutor and the defense in criminal cases, or the
plaintiff and the defense in civil cases. The legal system is seen as a poten­
tially self-regulating (homeostatic) formal system, providing internal criteria
and premises for resolving disputes. That is, the legal system not only deals
with all points of controversy, but also is said to be adaptable as it grows
(legal precedents).
Practitioners of law and law professors who do attempt to go beyond
mere doctrinal legal analysis most often find the basis of their philosophical
inquiry in the works of such exemplary theoreticians as Hart (1 9 58, 1 96 1 ,
1 983) and K.elsen (1 970), with their conceptualizations of law a s a system o f
rules positively developed (legal positivism); Finnis (1 980, 1 983), with his
reliance on "natural law" based on some deep structures of human nature
and moral thought and the ultimate necessity of coercion in law; or in
Dworkin (1 978, 1985, 1 986), with his liberal conception of rights and inter­
pretive theory of reading the legal text (hermeneutics) . Arguably Dworkin is
at the borders of doing jurisprudence and has one foot in a sociology of
law.1
Within jurisprudence, therefore, several schools of thought exist: legal
positivism, classical natural law theory, rights theory, sociological jurispru­
dence, realist theory, critical legal studies, critical feminist analysis, critical
race theory and various persuasions of legal semiotics. As cases in point, we
shall develop some of these in Part 2, chapter 4. In chapter 6 we will pres­
ent two representative examples from the legal semiotics perspective.

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 Introduction

Academic jurisprudes who focus on doctrinal legal analysis find their

main conduit for dissemination in law school classes and university law
journals. Most law schools of repute support or subsidize a university law
journal. Here one finds critique, comparison, and comment on how cases
could have been decided otherwise, alternative ways of constructing the
issues and "facts," an examination of the consistency or inconsistency of a
decided case, etc. It is this body of material, as well as published case mate­
rial, that is the focal point of study for the law student. The neophyte juris­
prude is likely to receive a very limited introduction to the classic and pro­
gressive philosophers and sociologists. Consequently, those within the ju­
risprudence school of thought are more likely to continue to do doctrinal
legal analysis, to be more technician than theoretician. Most often, those
from the sociology of law tradition would argue, some internalized but yet
uncritically examined theory of society, social order, and the human being
(referred to as a meta-narrative) is the basis of much of their analysis and
critique of law.
Sociology of law, on the other hand, is the study of:
(1) the evolution, stabilization, function, and justification of forms
of social control;
(2) the forms of legal thought and reasoning as they relate to a par­
ticular political economic order;
(3) the legitimation principles and the effects that evolve with
them;
(4) the "causes" of the development of the form of social control
and staff of specialists that are its promoters;
(5) the transmission of "correct" methods of legal reasoning;
(6) the creation of the juridic subject with formal, abstract and uni­
versal rights;
(7) the evolution of the juridico-linguistic coordinate system (legal
discourse) in use and its nexus with the political economic
sphere; and
(8) the degree of freedom and coercion existing in the form of law.
Rather than taking rules, forms of law, rights and abstract notions of
the legal subject Quridic subject) as a given, this approach examines the
evolution of these forms and how they become the dominant factors in
legal thinking and in the resolution of conflicts in society. The emphasis is
on specifying the causes of law, legitimation principles, the specific legal

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 Introduction

discourse and forms of legal reasoning that arise, the development of a spe­
cialized staff to use it, the evolution of the so-called juridic subject (the
"reasonable man" in law), and the degree of coercion and freedom that
exist in law. Finally, this approach examines the connection (nexus) be­
tween the form of law and the political and economic sphere.
Sociologists of law would generally argue that jurisprudes - as well as
scholars like Finnis, Hart and Dworkin - operate within a horizon of
thought that has been pre-constituted (Poulantzas, 1973:207; Kerruish;
1991:147, 157-160); see our chapter below on "constitutive law," which is
especially focused on this issue. In other words, the form of law, the basis
of rights, and the nature of the legal subject in law (the juridic subject) are
said to be, in the first instance, connected to socio-economic relations
(Pashukanis, 1980, 2002; Beirne, 1979b; Beirne and Quinney, 1982; Beirne
and Sharlet, 1980; Kerruish, 1991; Milovanovic, 1981, 1987, 1997). Thus,
sociologists of law would criticize jurisprudes for uncritically accepting
categories generated from historically-specific socio-economic relations.
Jurisprudes would respond by saying that "[t]he appearance. .fr the reality of
.

rights and law" (Kerruish, 1991:158; my emphasis). In other words, that law
can be analyzed on its own terms and not as a reflection of other societal
institutions. And herein lies the core difference between jurisprudes and
sociologists of law.
Those doing sociology of law are more likely to find themselves in
criminology, sociology, legal studies, political science, and criminal justice
departments within colleges and universities. Although they occasionally
have their work published in university law journals, more often their work
appears in social science journals. They are also active in presenting their
analysis in many social science conferences.
Beyond the two general approaches we have outlined, a third perspec­
tive, legal semiotics, is beginning to unfold, particularly since the late 1980s.
The claim by those in legal semiotics - the study emphasizing semiotics in
jurisprudential analysis - for the existence of an autonomous semiotic
approach in the study of law is problematic. There is no doubt that we can
approach the study of law by the use of the tools provided by semiotics;
thus we do have semiotic perspectives.2 In fact, a semiotic perspective has
been neglected for far too long in the literature. The critical question will
pivot on whether legal semiotics can stand on its own as an umbrella under
which other fields are subsumed, or whether semiotics is one element, be it
one of the most important, that needs to be integrated with other social
theories in studying law.3

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 Introduction

Be that as it may, in this book we are more interested in introducing

some recent works in the sociology of law tradition, in which semiotics is
one of the key elements. Thus, for example, we will include a Marxist view
that makes heavy use of a linguistic determinism. We will also include
postmodern views and how they have incorporated a perspective on semi­
otics derived from Jacques Lacan (see chapter 7). We will also include two
of the most dominant legal semiotics approaches that have developed, one
Peircian, the other Greimasian (see chapter 6).4
Several approaches in a critically grounded sociology of law, we shall
see, make heavy use of semiotic analysis: postmodernist, feminist, Marxist
(of the Structural Interpellation variety), and the constitutive approach.
Since the turn of the 2Qth century, the jurisprudence school of thought
has dominated the analysis of law. Members of the legal profession have
continued to operate within its more narrowly construed domain (formal­
ism). Thus, within law schools, but also within liberal arts programs of uni­
versities, the emphasis in the study of law has been on legal science. The
middle 1970s has been marked, however, by an increased sociological em­
phasis in law. Many critical scholars have returned to the classical theorists
- Durkheim, Weber and Marx - in order to develop more sociologically­
oriented approaches. Law is increasingly seen as intimately connected with
the internal dynamics of a political economic order. It is to this second ap­
proach that this book is dedicated.

Definition of Law
Definitions of law vary widely. At one end of the continuum is the
classic statement of Rousseau in the Soiial Contract (1954) that law is but the
reflection of the will of all derived by a mythically established contract by
members in a social body to end the "war of all against all" (that which
Hobbes, in Leviathan [1946], posits as the "state of nature"). At the other
end of this spectrum stands one variant of the Marxist's perspective, which
states that law is class rule, or bourgeois law. We shall develop this in
chapter 3. Between these extremes many alternative definitions arise. Take
for example Hoebel, an anthropologist who, in The Gw of Primitive Man
(197 4) offered the following: "A social norm is legal if its neglect or infrac­
tion is regularly met, in threat or in fact, by the application of physical force
by an individual or group possessing the socially recognized privilege of so
acting."
The key elements of his definition are: "social norm," by which is
meant regularity in behavior; "regularly met," by which we mean with a

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 Introduction

high degree of probability; "application of physical force," which means

that some external body will administer force against defined lawbreakers;
and "an individual or group possessing the socially recognized privilege of
so acting," which implies that a particular individual or staff are in the ac­
cepted position of administering punishment. The enforcer, too, can as­
sume, can expect as a right, no legal retaliation. This definition, then, would
exclude such behavior as the Bible's !ex talionis - an eye for an eye, a tooth
for a tooth - but would also have problems with such behavior as that of
Bernhard Goetz, who shot several youths in a New York City subway, ar­
guing that it was a preventive strike. It would also have problems with the
Red Brigade (rebels operating in Italy who kidnap members of the upper
class and subject them to a "people's trial" and then, upon conviction, in­
flict punishment). Other problem areas would include "bandits" (the Robin
Hood types) that Hobsbawm (1969) has studied, or even the situation
where, in times of an economic downturn, a robber enters a social security
or an unemployment office and robs it in front of the recipients while the
recipients cheer. Clearly, the question of "possessing the socially recognized
privilege of so acting [application of physical force]," runs into a problem
here, particularly because of substantial open or tacit support by some seg­
ments of the population in these situations.
Let's take a more classic definition. Weber has attempted to clarify the
difference between mere customary behavior and law. "An order will be
called... convention so far as its validity is externally guaranteed by the prob­
ability that deviation from it within a given social group will result in a rela­
tively general and practically significant reaction of disapproval" (Weber,
1978:34).
Notice that within this definition no externally defined specialized
group is given the power to enforce deviation from an order. An "order"
he defines as a regular orientation to rules of conduct ("maxims") (Weber,
1978:31). On the other hand, "an order will be called ... law if it is externally
guaranteed by the probability that physical or psychological coercion will be
applied by a staff of people in order to bring about compliance or avenge
violation" (Weber, 1978:34, emphasis in the original).
Note the emphasis on a "staff" of people given the responsibility of
assuring compliance or for avenging violations. Notice, too, that psycho­
logical coercion is included. Weber's definition, then, would seem to in­
clude "laws" of bodies such as the American Bar Association, the American
Medical Association, etc., in that they, too, have codes of ethics and disci­
plinary procedures enforced by a staff to bring about compliance.

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Other theorists have offered us a behavioral definition of law. Black,

for example, defines law as "governmental social control" (1976, 1989 ). For
Black, in explaining such things as crime, one need not get into the ques­
tion of the motivation of the deviant. Law, as a quantitative variable (it var­
ies in time and space) and as a qualitative variable (different styles of law
can be applied, even to the same situation) can be fruitfully investigated in
terms of the mobilization of law. In other words, the more law that is mo­
bilized, the more serious is the perceived event. The seriousness of the of­
fense, the definition of crime, who the offenders are, and official crime sta­
tistics can all be explained by how much law is mobilized. We shall return
to Black in chapter 5.
Malinowski, an anthropologist, has noted that laws are not necessarily
written (1976 ). The Trobiander of Melanesia, for example, found
her/himself in a web of continuous relationships. The subjects depended
on each other and found themselves in reciprocal relationships. There ex­
isted an intricate network of privileges, duties and benefits within which
identity was centered. The bond of reciprocity and the felt obligations were
so strong that for all intents and purposes these intricate relationships also
constituted the law.
Anarchists would take Malinowski's analysis one step further. For
them stateless societies have been shown to successfully exist, and can thus
be duplicated in a society of the future. Kropotkin (1902, 1913 ) has argued
that a society can function perfectly well guided by the principle of "mutual
aid" and shared responsibility. In his words, the principle of mutual aid
"grants the best chance of survival to those who best support each other in
the struggle for life" (ibid., 115; see also Morland, 1997). It is unclear, how­
ever, if stateless societies have no law. For Black (1976 ), by definition, a
stateless society has no law ( "law is governmental social control"). For oth­
ers, such as Luhmann (1985 ), law exists in every society (it is a generaliza­
tion of expectations, see chapter 5 ). Thus, anarchists may argue, on the one
hand, that without a state, no law exists, but on the other, they can equally
argue, by the definition given, that law in fact exists. (For additional in for­
mation on stateless societies, see, Michalowski, 1985:45-68; Black,
1976:123-137; Kennedy, 1976; Tifft and Sullivan, 1980; Ferrell, 1995, 1997,
1999; Williams and Arrigo, 2001.)
Sir Henry Maine wrote one of the first classic social science oriented
books on the evolution of law. In his treatise, Ancient Law (1861) , he ob­
served that the movement in the orientation of law has been from the cen­
trality of the family in ancient society, to the individual in modern society.

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As Maine has noted, in ancient society, when an individual sins, the pun­
ishment extends to his children, his kin folk, his tribesmen - and even as a
substitute for him, in his absence (1861:75). Thus, for the ancient, collective
responsibility and liability existed. Law, then, was directed to the family as a
unit, rather than to an individual. Primitive societies were characterized by
membership in some group. �e shall see that Durkheim, in chapter 1, and
Weber in chapter 2 will have more to say about this.) It was within the
group that rights, privileges and duties were defined. Individuality as we
know it today was totally out of accord with the organizational structure of
primitive society. Property, too, belonged to the family. The father was the
supreme authority (patria potestas). Even his spouse was treated more as a
daughter, not as an equal in law (1861:91).
Commentators such as Gibbs (1967) have noted that many definitions
of law assume a coercive form. Gibbs offers a "composite" definition of
law, which is a grand synthesis of all the coercive forms. The elements in­
clude:
(1) an evaluation of conduct held by at least one person in a social
unit; and
(2) a high probability that, on their own initiative or at the request
of others, persons in a special status will attempt by coercive or
non-coercive means to revenge, rectify, or prevent behavior
that is contrary to the evaluation; with
(3) a low probability of retaliation by persons other than the indi­
vidual or individuals at whom the reaction is directed ( Gibbs,
1967:431).
In his composite definition, rather than using such words as norm or
order, he substitutes "evaluation" of conduct, which is not necessarily col­
lective. "Special status," rather than necessarily implying an official, court,
or state, implies that someone must occupy a status, which is universally
accepted. And finally, his definition relies on the idea that this en forcing
party is immune from retaliation [ "when a perpetrator can rely on other
parties to rally to his cause...law does not exist" ( Gibbs, 1967:433)).
The autopoeitic (Luhmann, 1992; Teubner, 1993; and chapters 5 and 7
of this book) as well as the constitutive perspective ( Henry and Milovano­
vic, 1996, 1999) view the emergence of a particular definition of law more
in terms of a relatively stabilized manifestation at historical junctures of
otherwise more hidden complex interrelated elements at work. It is not just
the economic that is determinative, nor just the ideological sphere. Thus
law is not simply class rule, nor the product of enlightened, rational

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 Introduction

thought. Law is both con stituted by and constitutive o f socially con structed
reality. Law appear s in a trial court set ting, legislative discussion, police en­
counter, and so forth, as well as in individual dealing s w ith everyday con flict
situation. The "micro" exists in the "macro" and the "macro" exi st s in the
"micro."
At this point in our introduction to the sociology o f law we merely
wish to ind icate the varying position s on the definition o f law. This is not
merely an academic exercise. Take for example, the in strumental Marxist s.
They argue that even under the "fir st pha se o f communism," that is, so­
cialism, law w ill still be dictatorial, or cla ss rule, be it in the form o f prole ­
tarian law. For Marxist s, it is only in the "higher pha se s" that the state and
law will "wither away" ( see chapter 3). Here, by definition, ab sent a state
and a sta ff, no law exist s. Clearly the accepted definit ion o f law d ictates the
scope o f the analy sis o f law. It al so define s, or even "create s" crime ( see the
various discu ssions in Henry and Lanier, 200 1).

Functions of Law
Let u s now turn to the func tion s o f law. Put simply: what doe s law
do? Law ha s repre ssive, facilitative and ideological dimen sions. Any given
sy stem o f law s will probably have a spects o f all three within them. How­
ever, one may be dominant. The repressivefunction o f law addre sse s the que s­
tion o f coercion in law. Thus, legal repre ssion is variable. Law can be more
or le ss coercive. By repre ssive funct ions we mean the degree o f mobiliza­
tion o f physical force in the service o f social control. There are some theo­
rists who re st their argument on the nece ssity o f repre ssion on particular
ontological assumption s (the philosophy o f e ssen tial being). For example,
there are those from a Freudian or Hobbesian perspective (acknowledged
or not), who assume that because o f strong hedonistic, sel f-centered (ego­
istic) or biological impul se s, a per son le ft to him/her sel f in a state o f nature
would act out his/her impulse s w ithout regard or re spect for other s if it
wa s not for an external force, law. It is argued that a per son' s appetite ha s
to be controlled. Durkheim has even argued that ab sent an external force, a
per son le ft to him/her sel f would not develop his/her two side s (duality) -
egoism and altruism - in a balanced way. That is, s/he would not regulate
his/her conduct, or synchronize it w ith social requirement s. In this frame­
work, whether we talk about a " superego," "leviathan," or the "collective
con science," an external force is needed to coerce individual s to abide by
the law.

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 I ntroduction

There are those who argue that some coercion is necessary, but be­
yond this, "surplus repression" exists (Marcuse, 1962 :32 -34 , 80). This arises
because of the existence of political elites and their interest in dominating
and maintaining their ruling position. An excess amount of force is gener­
ated to maintain a political economic system advantageous to them. A full­
blown version of this idea is· the instrumental Marxist position (Quinney,
1974, 2002). These theorists argue that an illegitimate ruling group domi­
nates at the expense of the laboring classes. Weber, too, argues that even
though we have formal equality in law, because of vast economic differ­
ences of exchangers (contractors) entering a contract, coercion can still ex­
ist. That is, the propertied class can simply use its leverage to maintain
control (i.e., dictating the terms of the contract), while giving the formal
appearance that the worker, for example, is free to enter the contract or
not. Thus, the form can appear as assuring liberties, whereas the content may
produce domination.
Certain questions s till remain. Pure coercive definitions of law do not
adequately answer the questions of: (1) why people conform to legal norms
outside of the particular threats of punishment; (2) the significance of the
prevailing belief in the "correctness" or "legitimacy" of law and how it cor­
relates with actual behavior (i.e., belief in legitimacy and the actual behavior
do not necessarily correlate: an individual might see law as generally "just"
but still violate it: yet law may be seen as "unjust" but the individual might
still conform); (3) what other functions are served by law (i.e., facilitative);
and, (4) the ideological dimension of law, that is, how the "rule of law" ide­
ology is constructed and maintained and what purpose is served by it. In
sum, the issue of the repressive functions of law cannot be entirely sepa­
rated from the issue of its facilitative and ideological functions.
The facilitative function in law can be defined as the degree to which law
aids in assuring predictability and certainty in behavioral expec tations.
Whether we read Durkheim, Weber, Marx, Maine, Unger, or Selznick, we
find the notion presented that there has been an evolution of law from
status to contract. Durkheim, for example, shows that a primitive society is
marked by "mechanical" bonds of solidarity (attraction based on similarity,
sameness). Thus, similar encounters among the members of a society and
the consequently similarly developed lifestyles and outlooks lead to a highly
predictable order. The evolution to a more complex, differentiated type of
society, however, produces bonds of solidarity he calls "organic" (the bond
being attraction of opposites). In modern societies, involvements are more
diverse and more transitory. But the range of behaviors existing, both nor-

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 Introduction

mal and "pathological," have increa sed trem endously. As a con sequenc e,
l ess predictabili ty and c ertainty in everyday b ehavior is t he norm. Satisfac ­
tion o f n eeds cannot b e a ssured by int eracting within small circles. The
cont ract , for Durkheim , resolves som e o f the dil emma s: it a ssures c ertain ty
in b ehavior ( see fu rt her, c hapter 1).
W eber' s notion o f t he "ra tionali za tion" o f soci ety (see c hapter 2 b e­
low) also stat es t hat society evolved from the primi tive status contratt
(agreem ent s mad e a ffect ed the w hol e p ersonali ty o f the tran sactor and
her/ hi s standing in t he community) to the purposive contract (c haract erized by
t emporary rela tion ship s in w hich agreement s w ere fr eely mad e). Thi s coin­
cid ed with t he coming o f commerc e and the comp eti tive mark etplac e
mark ed by money transaction s. H ere the contract , reflecting mu tually and
fr eely ag reed upon t erm s, assured subject s in the social formation t hat t heir
exp ectation o f result s would b e supported by an ext ernal forc e, the state
and its laws. H ence, economic calculation could now be made more p re­
dictab le b ecau se the many variables in society could now b e quantified.
P ro fit motives, t hen, can find expression in a stable fram ework in w hich
exp ecta tions and obligations are calculable.
Marx , too, argued t hat the breakup o f feudalism , as a mode ofproduction
(a sp ecific m ean s o f producing and distribu ting good s in a society), and it s
replac ement by capita li sm , entailed a mov em ent away from ba rt er ( ex­
c hange for direct p ersonal use) to commodi ty-exc hang e ( exchang e for
p ro fit) in t he comp etitive mark etplac e and money economy . But in t he
capitali st mode o f produc tion , Marx argued, predictability and c ertainty in
transactions need ed to b e a ssured i f capitali sm wa s to continu e. W hat wa s
n eed ed, t hen, wa s a c entralized stat e with machin ery o f en forc ement to fa­
cilitat e egoc entrically -driven subj ect s pu rsuing pro fit s.
A contempora ry writ er w ho ha s stat ed the facilita tive func tions o f law
quit e preci sely i s Lu hmann (198 5). In thi s view, law i s the "gen erali za tion o f
exp ectation s" and i s not primarily repressive (198 5: 78). His rat her cumber­
som e d efini tion o f law i s t hat it i s a "struc ture o f a socia l sy st em w hich d e­
p end s upon the congru ent gen eralization o f norma tive b ehavioral exp ecta­
tions" (1985 :82). Put simply , Luhmann argu es t hat within c hanging soci e­
ti es p eople n eed som e reference point t hat b ecomes t he ba si s o f st ruc turing
exp ecta tion s and obligation s; ab sent this, p eopl e will witness endless disap­
pointment s and hard ship s. Law acts as t hat reference point. W e shall hav e
more t o say about his approach i n chapter 5 , but here w e m erely wish to
stress that for Luhmann law reflects t he requirem ent t hat participant s in a
social formation n eed to b e able to struc ture thei r exp ectation s - or, said

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 I ntroduction

in another way, to be able to orie nt their behavi or toward predi ctab le re ­

sponses a nd expe ctations.
Law, i n its fa cilitat ive funct ion allows coordi nation, planni ng, and the
expe ctati on that certain behavi or s will normally follow other behavi or s. So
long a s there i s congruency betwee n u s concerning our e xpe ctations, we
b oth can pla n, partici pate, re spond and carry proje ct s forward with a mini­
mum of di ffi culty. Luhmann argue s that as society ev olve s to greater com­
plexity, h owever, there i s even a greater ne cessit y for stru cturing expe c­
tations of ex pe ctations. Law i s said t o re spond t o this ne ce ssit y. T o thi s
degree, Luhmann argue s, law mu st always exi st i n every society (1985:83).
Many dilemma s exi st whe n i nteractions cannot be planned nor out ­
come s predicted. Consider, for example, Laing' s point of two pe ople i n
i nteraction who cannot pinpoi nt a comm on ba ckgr ound under standing or
re fere nce point (1970:22). Jill: "Y ou think I am stupid." Ja ck: "I d on't think
y ou're stupid." Jill: "I mu st be stupid t o think y ou think I'm stupid i f y ou
d on't... " This gue ssing what the other i s thinking, can go on t o no end (in­
finite regre ss) . I f the other part y i s also tr ying t o anticipate what I am
thinking, then e stab li shi ng meaning or coming u p with a comm on under­
standing can be rather a pre carious situation. At a minimum, many di sap­
pointment s will occur and mu ch remedial w ork w ou ld need to be d one
( see, e spe cially, G offman, 1971:95-187).
The contra ct i s the i nstrument that i s the pure st expre ssion of the
need t o assure predi ctability and fulfillment of obligati ons. Maine (1861),
Renner (1949), Selzni ck (1969), Klare (1979) and Weber (1978) have all
argued that a movement fr om sta tu s to contra ct ha s chara cterized societ y' s
pr ogre ss. I n brie f, they argue that i n primitive society one' s statu s i n the
commu nit y (wh o y ou are, what position y ou occu py i n the hierar chy or
societ y, what spe cific r ole y ou play) i s ce ntra l i n determining right s, obliga­
ti ons and dutie s. One' s ide ntity is i ntimately conne cted t o a web of social
relati onships. This "web," i n itself, assure s that the contracting partie s abide
by their agreement s. In more advanced societie s this state of af fair s i s re­
placed by the contra ct, which assume s free agreement s of i ndividuals. Each
contra ctor i s assumed t o be capable of freely ex changing what s/he pos­
se sses. And ea ch i s assumed t o be able t o meet the other on an equal foot ­
i ng, with equal rights. It i s but a temporary b ond tou chi ng on a very small
part of the whole ident it y of the intera cting partie s. Here, fulfillment of the
contra ct terms i s assured by the state. The contra ct, a s well a s the notions
of i ndividual re sponsibilit y and liabilit y, private pr operty right s, the juridi c
subject and the state are re cent i nve nti ons. We need not g o far ba ck i n his-

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 I ntroduction

tory for their origins. We will have more to say about this throughout the
book.
In sum, the facilitative f unction o f law concerns the quest ion o f how
certain legal instruments - the contract for e xample - develop, why they
do so, an d how they answer the call for predictability an d certainty in eco­
nomic transactions and social interact ions.
The third function o f law is ideological. I deology as a belie f system is al­
ways present in law. In other words, law systematically embo dies the values
o f some people, but disregards some values o f others. Accordingly, the
question o f gender, race, class, se xual preference, etc., becomes a central
issue in discussions o f i deology (for an e xcellent crit ical analysis o f i deology
in law, see K.erruish, 1991). A particular form o f discourse transmits i deol ­
ogy, what we will re fer to as a linguist ic coordinate system (chapter 6).
Wor ds attain their legal meaning only by way o f struggle in which one defi­
nition comes to prevail ( Milovanovic, 19 87, 2002). For e xample, consi der
the Fourteenth Amen dment to the U.S. Constit ution, which rea ds, in part,
"no person shall be deprive d o f life, liberty or property without due process
o f law." The words "person," "li fe," " liberty," "property," an d the notion
" due process" have been the subject o f much litigat ion.s
I deological an d repressive f unctions in law o ften appear together, with
the former o ften disguising the latter. For example, for over 200 years in
Australian law the notion o f terra nullius preva iled. This doctrine ha d it that
Australia, when first discovere d by Britain, was "uninhabite d" an d was thus
settle d as a colony. This doctrine denie d the in digenous peoples the lands
they ha d traditionally held for over 40,000 years. In 1992, the High Court o f
Australia in Eddie Mabo and Others v. The State ofQueensland overturne d this
doctrine, recognizing "nat ive title." Currently, much internal resistance e x­
ists within different sectors o f Australia as to trans forming "native title"
into government practice.6
Several critical concepts are central when examining the i deological
f unction o f law: domination, legitimat ion, hegemony, an d reification. We
shall have more to say about each throughout the book. As to the issue o f
domination, Ma x Weber has in forme d us that subjects in a social formation
orient their behavior to an order. But why do they do so? When they do, do
they in fact accept it as just ? This question o f legztimation is central. Weber,
for e xample, has shown three forms o f dom ination: charismatic, traditional
and legal (see chapter 2). Sub jects predictably abide by the order because it
is seen as right, or just. The question o f why they do see it as so will be e x­
amine d in subsequent sections o f this book.

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 Introduction

Subje cts, too, advertently and inadvertently contribute to the mainte­

nan ce of the socio-polit ical-legal and ideologi cal order, be it one that is
more demo crati c or, ironically as it may sound, one that is totalitarian.
Would-be revolutionaries or re formers o ften re constru ct the dominant legal
order (and its ideologies) by making use of the categories, pro cedures, and
language that are part of the d ominant order in their very ef forts to redress
their grievan ces (see, for e xample, the case of jailhouse lawyers in Thomas
and Milovanovi c, 1999). This is the idea of hegemo'!Y· Said in yet another
way, it is the a ct ive participation b'y subje cts in the me chanism of their own
oppression. Oppositional groups will often find themselves fa ced with the
dialectics of struggle
- struggles, on the one hand, can contribute to eman ci­
patory practices, but on the other , also contribute, be it inadvertently, to the
establishment of new forms of hierar chy and repression (see, for example,
Cornell, 199 8).
The continuous process of re constru cting stru ctures that attain a rela­
t ively independent e xisten ce is known as reijication. In other words, sub je cts
colle ctively construct a so cial order, and this order comes to take on an
"obje ctive " appearance, now dominating subje cts.
The flip side of the notion of hegemony is the question of legitimation.
Why and how, it might be asked, do subjects inadvertently and advertently
participate in the me chanism of their own oppression ? Mar xist analysis of
law pla ces this question in the center of its investigation of law (see chapter
3). The ideologi cal role of law, then, is said by some, parti cularly Marxists,
to help "persuade the dominated elements in American so ciety that their
domina tion is just ified - or that their material condit ions of e xistence are
justified or, equivalently, that they are not dominated at all " (Tushnet,
1977:100). This legitimating fun ction addresses the question of why sub ­
jects may follow the law, seeing it as just, where in fa ct the very distribution
of resour ces might be highly skewed.
People believe that a pra ctice which is legal is, by that f act alone,
a practi ce whi ch is just. Thus, if one criticizes the distribution of
wealth in the so ciety, the ideology of the legal order answers that
the distribution is just simply be cause it arose from transa ct ions
that were legal; property, that is, is not theft be cause the acquisi­
tion of property does not meet the legal de finit ion of theft [Tush­
net, 1977:100].
In other words, the power bloc's position requires that it arti culate
justi fications for its privileged status (see chapter 2); otherwise, subje cts
may quest ion the gross disparity in wealth and privilege. Looking toward
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 I ntroduction

the law, subjects will see what appears as an autonomous legal system that
rests on such principles as formal "equality before the law." The citizen
perceives the existence of a democratic society governed by the "rule of
law." Hence, the perception created is that it is not the law that aids in
maintaining inequality; rather, the discrepancy must be found in the lack of
initiative, lack of hard work ani:I so forth. The ideological function of law,
then, includes the idea that law may legitimate domination by the power
bloc.
In the forthcoming pages we shall also focus on the specialized dis­
course in use by the staff of enforcers (Tiersma, 1 999). Whether one uses
the oath or the invocation of a divine being as the guarantor of the promise
made, or whether as in contemporary society one makes use of trained spe­
cialists (lawyers), a particular specialized discourse is used in resolving con­
flicts (see chapter 6). Law-finding - by which we mean the application of
specific rules of evidence and reasoning to "factual" situations in order to
construct "what happened" - entails the use of a specific linguistic coor­
dinate system (discourse). One must situate oneself in the appropriate lin­
guistic coordinate system in order to be able to do the "correct" reasoning
to attain a legal result. Thus, in doing law in the existing form under con­
temporary capitalism, lawyers bring with them linguistic skills that are ob­
tained by training in law school. The discourse available for use in decision
making, in constructing "what happened," is not random; rather a particular
method of legal thought must be brought to bear on the "facts" for a legal
resolution (see chapters 4 and 6). Durkheim, Weber and Marx all imply that
the members of a staff that engages in law-finding situate themselves within
this legal discourse, which often has a sacred character to it. Only the staff
knows of its complex use; the layman, the common citizen, is said to be
incapable of mastering it. Consider, for example, my recent encounter with
a real estate lawyer. Faced with my continuous critical questions, he finally
emphatically and authoritatively blurted: "give me your thoughts and I'll
find the Qegal] words."
In sum, the ideological func tion of law focuses on how certain ideals
are systematized in law and how these ideals are conveyed by the rule of
law. All three functions of law - repressive, facilitative and ideological -
become central in the sociology of law. Some theorists, we will note in sub­
sequent chapters, focus more on one dimension than another. The author's
position here is that all three functions must be addressed in a bona fide
examination of the sociology of law.

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 I ntroduction

Law and Fulfillment of Social Values

A final core issue needs to be addressed. In studying law we need to
ask: \X1hat is the relationship of law and a legal order to the fulfillment of
social values (see Trubek, 1 977:545-555)? After all, law and its contribu­
tions must be judged by some s,tandard. Law's legitimacy rests, according to
many theorists, on the promise that law promotes certain values in a social
formation. The first step in this examination then entails "understanding
the nature of social ideals which law is thought to foster,... [and in examin­
ing] ...empirically and theoretically, the purported relationship between legal
institutions and these ideals " (Trubek, 1 977:546). To this end , Trubek has
given us a conceptual model in examining the relationship of a legal order
to the fulfillment of social values (see Figure 1).
This model includes two dimensions: the degree of autonomy and
generality of the legal order, and the degree to which the legal order con­
tributes to the realization of certain social values. This figure helps us pin­
point ideal types, or conceptually pure models. It is a heuristic model in the
sense that it gives us a snapshot view of complex, ongoing dynamic sys­
tems. It provides us with a beginning point in further critical analysis. Here,
in Figure 1 , two degrees of freedom are incorporated. Of course we could
develop more complicated models with more than two dimensions, or de­
grees of freedom. And the two concepts may not even go together in some
occasion. For example, autonomy and generality may on occasion be mutu­
ally exclusive concepts; that is, they may not be positively correlated. Here
there is a tradeoff ; simpli fying a model gives us a quick starting point for
further refined analysis but at a cost of over simplification ; a more complex
model incorporating more degrees of freedom would provide us with in­
creasingly more accurate models but at the cost of easy and use ful initial
understanding that sensitize us to the issues. We add that Figure 1 offers
not only a descriptive snapshot of a legal order but can also provide a pre­
scriptive dimension , offering suggestions for social change.
Let's examine the first dimension. A legal order can be operationally
defined by its "autonomy " (the degree of independence of a legal order
from any particular individual or interest group) and by its "generality" (the
degree to which decisions and rules are made according to previous rules,
and applied to all without favorable treatment to any) . We can speci fy a
range within this dimension or scale, from highly autonomous/general to
not at all. A legal order that is "low" on this dimension would be one where
some power ful group controls the legal apparatus and law is discriminato­
rily applied.

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 I ntroduction

T he second dimension, social value s, Trubek identifie s as incor­

porating equality (equal treatment by t he state), individuality (degree of self­
actualization t hat i s realizable) and community (degree to w hic h participating
and sharing in a greater group is possible).7 In other word s, social value s
can be operationally de fined in term s of t he se t hree. All t hree will be col­
lap sed so t hat we can speak o f t hi s dimension as ranging from "high" to
"low." (With some re flection on t hi s collap sing operation we could point
out t hat some contradictions may appear - t he in herent danger s of over­
simplification !) T hi s conceptual model i s portrayed in Figure 1.
Contemporary per spective s in t he sociology of law can be placed at
t he inter sections of t he se two dimension s. In other word s, as we begin to
examine different approaches in t he sociology of law we need to be able to
make u se of some type of organizing framework, w hic h sensitize s u s to key
issue s. Fruitful inve stigation of t he relation ship between law and t he ful­
fillment of social value s t hen can take place. It i s but t he starting point for
more refined sc holarly analy si s. We merely of fer t hi s conceptual model a s a
way of putting in per spective t he many examinations of law, w hic h follow .
We shall identi fy four models as example s.
T he upper right hand corner repre sent s t he orientation referred to as
liberal legalism. It is also called formali sm, legal formalism, formal rationality
or logical formal rationality; at other time s, it i s simply re ferred to as t he
"rule of law." T hi s orientation in t he sociology of law state s t hat t he legal
order is highly autonomous and general; t hat i s, it i s independent from t he
in fluence of some power bloc, and it i s a lso seen as of fering, at t he same
time, t he potential for maximal fulfillment of social value s (i.e., equality,
individuality, community). Law i s seen as being independent of some power
group or individual; it stand s above t he intere st s of any one intere st group
or individual, and t hu s deal s with con flict s in a neutral manner so t hat
maximal realization of social value s is achieved. In ot her words, t he rule of
law i s said to allow maximal freedom and minimal coercion in law.

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 I ntroduction

Figure 1. Legal Order and Fulfillment of Social Values under

Western Capitalism

Legal Order Repressive Formalism Liberal legalism

(formal rationality,
rule of law)

Realization of
autonomy and
generality

Instrumental
Marxism
l nformalism

Fulfillment of equality, individuality and community

(Adapted from Trubek, 1 977:551.)

The assumption in this pers pective is that under present day self­
proclaimed democracies, an ideal order identified as legal formalism pro­
vides the best solution to the question o f how to handle ongoing con flict­
ing interests and values for the good o f all. Law schools and their curricula
teach the fundamentals o f correct legal reasoning in preparat ion for carry-

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 Introduction

ing out this ideal legal system. Assumed, too, in this model is that i f we
fine-tuned the machinery of legal formalism, eradicat ing extra-legal factors
such as race, class, and gender biases in decision making, replacing them by
adherence to the formal rules , logic and rationality, society would be the
better for it, since maximal realization o f values could then be attained. The
rule o f law is said to be the ideal toward which we should strive. Such a
principle as the "equal protection clause" o f the Fourteenth Amendment to
the U.S. Constitution, a central element o f the rule o f law, expresses it best:
equally sit uated should be equally treated.
Let us provide an example in the use o f this model as it deals with lib­
eral legalism 's solution to racism or sexism in the legal order. We begin by
identifying biases o f the legal order toward certain segments o f the popula­
tion. The reali zation o f social values for this segment is significantly less
than others similarly situated. Thus, in this example, the ongoing workings
o f this biased system can be depicted somewhere in the center o f Figure 1 :
here we have a legal order that is not highly autonomous or general (some
segment o f the population is subject to discriminat ion), and as a conse­
quence this group does not completely rea lize social values. Law st udents
are taught to apply an "equal protection" argument to this case in order to
move the functioning o f the legal order toward the upper right hand corner
as an ideal, hence eradicating biases and prejudices and also providing the
way for the greater realization o f social values. Here, o f course, in the spirit
o f the jurisprudential method, the analysis o f the wherewithal o f the "equal
protection clause" does not exist; the dause is taken as a given and applied
to problematic situations. Thus we can appropriately identify this legal work
as primarily technical in nature. This is, in other words, the domain o f those
who identify with jurisprudence rather than with the sociology o f law.
Since the break up o f totalitarian forms o f "communism" in Eastern
Europe, two more radical philosophical positions have gained notoriety
within the "rule o f law" tradition. Roberto Unger (1986) has advocated a
"superliberalism," arguing for the empowerment o f the State but with the
institutionalization o f new forms o f civil rights and protections that may
pave the way to an "empowered democracy." In his analysis, he wants the
proclaimed virtues o f Western democracies to become reality. Je ffrey Rei­
man (1990) has offered a redistributive principle whereby the worse-off
members as well as the better -o ff within society can both benefit. In other
words, he argues for a rule o f law, but also acknowledges vast structured
inequities in the system. He finds that a redistributive principle based on a
substantive ideal can lead to the greater realization o f social values for all

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 Introduction

members of a society. For both theorists, the rule of law itself incorporates
humanistic dimensions that promise to lead to the greater realization of
individuality, equality and community.
Liberal legalism has most often been the focal point of those in the ju­
risprudential tradition. Members of the practicing legal profession as well as
academic law professors most often work within this intersection. Sociolo­
gists of law, on the other hand, most often focus on trying to understand
the other three ideal types in Figure 1. Hence, what we find is that different
questions and solutions are offered because of these particular foci.
Instrumental Marxism appears in Figure 1 at the intersection of low
autonomy and generality and low fulfillment of social values. For theorists
of this persuasion, law is seen as being dependent on some dominant indi­
vidual or group (i.e., the ruling class). Here the majority of the population is
seen as being denied genuine opportunity in the fulfillment of equality, indi­
viduality and community. The ruling class is said to use the system of law
and legal order as an instrument (hence "instrumental Marxism") to maxi­
mize its own interest in making profits ("surplus value"). Exploitation of
the worker, alienation, fragmentation, excessive co�petition, racism, sex­
ism, class exploitation, the rewarding of egoistic behavior at the expense of
altruism - all, according to the instrumental Marxist position, are part and
parcel of the workings of the capitalist mode of production. Law, then, is
primarily repressive, favoring the powerful group in control. The less pow­
erful are held in check by the legal order (for a precise statement, see Quin­
ney, 1974, 2002). The instrumental Marxists would argue that the very ide­
ology that develops - advocating the necessity of coercive law because of
the existence of predatory individuals - is convoluted and mystifying. The
system, it is said, produces these individuals ("crippled monstrosities") in
the first instance and then creates an ideology for the necessity of control­
ling this end product.
Repressive formalism is an orientation that poses a paradox. The legal or­
der can be highly autonomous and general, but at the same time this condi­
tion may: (1) still further the interests of the capitalist "class" as a whole; and
(2) contribute very little to the overall realization of social values. In other
words, this orientation has it that the legal order, on a formal level, may
indeed reflect the ideals of autonomy and generality, and the ideals specified
in the Bill of Rights. It will not be under the direct control of the capitalist
"class," and will render the principle of formal equality a central place in
society. Yet, genuine equality, individuality and community will be denied.
As Trubek has argued (1977:553), "the capitalist mode of production leads

- 21 -
 Introduction

to increasing inequality of income and power, to dominat ion and destruc­

tion of genuine individuality, and to t he rupture of communal ties and t hus
alienation." But t hese effects, according to t hose wit hin t his tradition, are
obscured and mystified by a legal order t hat, on its face, appears as
autonomous and general. Capitalists as well as workers, in other words, are
both subject to t he legal system and receive "equal" treatment be fore t he
law; but w hat is overlooked by t he operations of t he legal system is t he vast
economic disparit ies and how t hese are trans formed into privileges for t he
power ful.
For example, consider Anatole France's quip t hat t he rich and poor
are equally prohibited from sleeping under t he bridges of t he Seine in
France. Both are being treated (formally) on an equal footing. However,
with a little reflection it becomes quite apparent that formal equality may
hide and perpetuate substantive inequality. Consider t he situation of two
individuals, one making $100,000 the other $10,000 per year. T hey both are
given tickets for traveling 15 miles per hour over t he speed limit (thus t hey
are equally situated vis-a-vis the in fraction). Assume t hey both get e quiva­
lent legal services (equally treated). And t hey both are fined $50 dollars per
person (again, equally treated). Conclusion: since equally situated were
equally treated, t his is c onstitutionally permissible; in t his case it is t he ideal.
T hose from t he liberal legalist posit ion spend much time and energy identi­
fying t he circumstances in w hich and by w hic h equally situated are not
equally treated (i.e., biases due to racism, sexism, etc.), and attempt to fine­
tune t he mac hinery in order t hat formal e quality reigns.
But a close examination of t his example leads us to question w het her
substantive justice results in lig ht of t he initial difference in wealt h. Surely a
$50 fine has a d ifferent significance for a person making $10,000 per year
t han it does for a person making $100,000 per year. In sum, t his orientation
indicates t hat t he legal ideals of e quality, individuality and community
brought about after t he demise of feudalism and with t he development of
capitalism, are both an affirmation and a negation, a dialect ic (see also Bal­
bus, 19 77a; we will also return to t his in t he c hapter on Karl Marx). Pro­
claimed ideals such as "equality for all" may, at a deeper level of analysis,
indicate hidden repressive dimensions. Ironically, t hen, activists w ho advo­
cate some commonly accepted ideals might at times be unintentionally rein­
forcing a more hidden form of repression. T his is the notion of hegemo'!Y
that we s hall return to on several occasions t hroughout t his book. It is also
t he basis of t he dialedics ef struggle w hereby disen franchised groups, for ex­
ample, do in fact benefit from "rights discourse"; t hey do receive some al -

- 22 -
 I ntroduction

leviation from suffering, but inadvertently their efforts contribute to the

legitimation of the rule-of-law ideology. See, for example, the ambiguous
relationship people of color and women have with this: on the one hand,
the are provided with a voice in law, but, on the other, by this very practice,
inadvertently or not, further the legitimacy of the rule of law.
Of course, the example provided in the previous paragraph can lead to
many intriguing questions and analyses. It offers, in a snapshot form, the
tension between formal principles in law (i.e., the equal protection clause:
equally situated should be equally treated) and substantive principles in law
(i.e., Marx's notion: "from each according to his [her] abilities, to each ac­
cording to his [her] needs"). Marxists, therefore, would probably have to
argue for different treatments for different people (a principle of inequal­
ity?): the person who makes $1 00,000 per year in our example above would
need to pay a fine that is proportionally greater, here ten times, that of a
person who makes $10,000 per year, or $500. Consider, for a moment, the
ramifications of this example for an entire legal order!
The final orientation, informalism, indicates a legal order that is "low"
on generality and autonomy but "high" on the realization of social values
(see lower right hand corner of Figure 1). We can depict a range of possible
types extending from romantic informalism, to a benevolent dictatorship,
to the "stateless" societies advocated by Marxists and anarchists.
One variant of informalism, romantic informalism, argues that if in­
formal dispute settlement mechanisms increasingly replace the formal
structures, more fulfillment of social values will result. Such programs as
diversion, neighborhood justice centers, mediation and arbitration bodies,
community "moots" and so forth, focusing on informal proceedings,
would maximize the fulfillment of social values, it is said, within the frame­
work of the capitalist mode of production. One historical example is Khadi
justice (see chapter 2), which considers a wide range of factors to assure
substantive justice (as opposed to formal justice). The law-finder's decision
is based on the unique circumstances of each case. The remedy is tailored
to fit such factors as personality, need, and so forth. Trubek, for example,
has argued that we can keep the given mode of production as is and merely
move toward more informal methods of conflict management, and by do­
ing so, maximal realization of values could occur. This nostalgic position
found many adherents in the 1 960s. In the contemporary critical criminol­
ogy scene, the peacemaking approach to criminology and law resurrects this
approach (Pepinsky and Quinney, 1 9 9 1 ; MacLean and Milovanovic, 1 997;
Quinney, 2002).

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 I ntroduction

Another ver sion o f in formalism, a po sition shared by anarchi st s and

Marxist s, advocate s the "withering away" o f the state and law. Only with
the removal o f the capitali st mode o f production, it is argued, will the state,
law, lawyer s, and the "juridic subject" disappear. In it s place, in formal
community "moots" would develop in the "higher forms" o f communi sm.
The se would render substantive ju stice by considering each individual case
as unique. The fir st line o f de fense against the development o f trouble some
behavior i s, however, the e stabli shment o f a society focu sed on altrui sm,
cooperation, collective development, mutual aid, and the social ideal o f the
Renai ssance per son. Here Marx' s guide would be "from each according to
hi s [her] abilitie s, to each according to his [her] needs."
A po sition midway between the previou s two, theoretically derived,
may be the benevolent dictator who di stribute s re sources as they are
needed. To tho se who need the mo st, so they shall receive. But a formal
sy stem o f laws would not be in exi stence. The benevolent dictator would be
guided by an extremely acute sense o f justice. Weber, o f cour se, a s we shall
see, would argue that the po ssibility o f thi s in modern society i s pure fan­
tasy and that with the ri se o f the bureaucracy and force s o f rationalization,
formal rational law s are here to stay. But the ten sion, the "in soluble con­
flict," between the principles o f formal and substant ive ju stice would alway s
be felt.
In sum, Trubek's conce ptual model allow s much fruit ful con­
ceptualization o f the relation ship o f laws to the fulfillment o f social values.
It is a convenient tool in the sociology o f law. It can be read de scriptively as
a convenient, summary snapshot o f a legal order, and pre scriptively, a s a
tool for envi sioning social change. We will return to it several time s
throughout this book a s a guide to our pre sentations and analy se s.

* * *

Thi s book will be divided into two part s. In Part 1 we will pre sent the
cla ssic theori st s - Durkheim, Weber and Marx. We will provide an over­
view o f the key element s within their approache s.
In Part 2 we will focus on contemporary per spective s in the sociology
o f law. Four chapter s will pre sent some o f the mo st provocative analy si s
that has appeared in the contem porary literature. In chapter 4 we have cho­
sen early twentieth -century sociological juri sprudence and American legal
realist approache s, the critical legal studie s movement, femini st juri spru­
dence and crit ical race theory . \Ve have indicated that the se a pproaches can
b e located betwe en juri spruden tia l analysis and sociology o f law. In chapter

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 I ntroduction

5 , we offer the structural -functional approach, the autopoietic perspective ,

and a behavioristic approach. Here we have moved into the domain of the
sociology of law (recall our earlier definition). In chapter 6, semiotics and
its relationship to law w ill be presented . This chapter will focus on le gal
semiot ics (Peirce , Greimas) and a Mar xist semio tic perspective (e.g. , struc­
tural interpellat ion view) in the ' sociology of law. In chap ter 7 we e xamine
the postmodernist use of semiotics and more fully developed sociology of
law perspectives. Here Jacques Lacan's work will be central. We will pro­
vide two examples of research taking place in this area : one will focus on a
Lacanian-informed feminist analysis in the sociology of law; the other , on a
constitutive approach .
Our goal in our exposition is to be primarily descriptive and exposi­
tory in focus. Critical comparisons will be only done in passing and they are
there fore of secondary concern. This would certainly be the next stage after
the student has acquainted her/himself somewhat with the literature. The
book is an introduction for getting into the sociology of law; as such , it
provides overviews of some of the most compelling theoretical works on
the subject. And , as a primer , it should provide some familiarization of the
contours of the discipline. We turn now to the classic thinkers.

Notes
1. For a succinct overview and critique, see Kerruish, 1 991 :43-107; Douzinas et al.,
1 9 9 1 : 2 1 -28, 55-9 1 .

2. Several other theorist-specific approaches have recently developed that are mak­
ing a claim for an autonomous body of semiotic inquiry, most particularly, Peircian
and Greimasian (perhaps even Lacanian - although their main exponents, Drucilla
Cornell, Peter Goodrich, David Caudill, Bruce Arrigo, and Dragan Milovanovic
would not call themselves by the title, Lacanian) . Arguably we could develop a se­
miotic approach based on other important theorists' work, such as Gottlob Frege
(Rudmin, 1 992) and the Polish theoretician, Kazirnierz Twardowski with his disci­
ples Tadeusz Kotarbinski, Stanislaw Lesniewski and Kazirnierz Ajdukiewicz (Roo­
ney, 1 993). There is also the "Prague Linguistic Circle" (Winner, 1 992; Kevelson,
1 993a) that could become the basis of a semiotic approach in law. And an "Italian
analytic school" exists Qackson, 1 991 :32; Pintore, 1 99 1 ; see also the special issue,
edited by Pintore and Jori in the International Journalfar the Semiotics of Law, volume
14, number 3, 2001). And more recently, the "Tartu-Moscow" school of cultural
semiotics.
3. Elsewhere, for example, I have developed the outlines of a critically informed
psychoanalytic semiotic approach rooted in Jacques Lacan (Milovanovic, 1 992a,

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 Introduction

2002) and critical theory. It might be the case that for those who advocate a legal
semiotics as the umbrella term that some meta-narrative or meta-theory (i.e., an
unstated and/ or unexamined theory and collection of basic assumptions; or, if you
prefer, a more hidden paradigm) is still being employed to ground the more openly
semiotic analysis being done. And, implicitly, much of jurisprudes's legal analysis
relies on some unsystematized senµotic analysis.
4. My current position as to whether legal semiotics can stand on its own as op­
posed to being an integral component in a sociology of law is that outside of the
few prestigious and prolific writers in the Peircian and Greimasian approaches -
Kevelson, Jackson, Landowski - most of the materials published or presented at
the key annual law and semiotics conferences are mostly of the jurisprudence vari­
ety. My own inclination is that semiotics is most usefully subsumed under the soci­
ology of law (see last chapter), and perhaps even, arguably, under jurisprudence. In
other words, the conceptual tools semiotics provides may be usefully integrated
within a jurisprudential or a sociology of law approach.
5. In the Canadian context see Asch's analysis of how the notion of "wildlife" was
legally defined in such a way as to deny indigenous peoples access to their land and
resources, 1 992.

6. See, also, Flood, 1 993; Kerruish, 1 99 1 : 1 4- 1 5, 82; Sarre, 1 994; Heilpern, 1 993;
Cunneen, 1 992; for the Canadian context, see Asch, 1 992; Evan, 2002; Strelein,
2001).
7. Of course, the notion of "individuality" is problematic. It is ideologically packed.
Durkheim, Weber, and Marx, as we will show below, explain how the notion of the
individual - the self- directing, fully aware and consciously determining subject -
was a relatively late historical development. This notion of the "centered subject"
can be opposed by one developed by postmodernist thinkers (chapter 7): the "de­
centered subject." The latter indicates that the subject is more determined than
determining, less in control, and more the subject of semiotic forces, both idiosyn­
cratic as well as those arising from manipulative ideological forces. Accordingly,
Trubek's incorporation of the centered subject could be qualified. We could have
used the notion of the decentered subject. Thus, on the second dimension of Tru­
bek's diagram, realization of social values, we could include the Lacanian idea that
self-actualization is to be measured by the degree to which the subject assumes
her/his idiosyncratic desire. Lacanian ethics would operationalize the realization of
this term as: "the extent to which he (she] has given ground relative to his U1er]
desire" (1 992:3 1 4, 3 1 9; see also Rajchman, 1 99 1 :42; Lee, 1 990). Accordingly, a legal
order that systematically forces subjects to give ground to their desires would be
one where a "low" score would be registered on the realization of social values
dimension of Trubek's diagram.

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