Cardiff University

The Sociological Concept of Law

Author(s): Roger Cotterrell
Source: Journal of Law and Society, Vol. 10, No. 2 (Winter, 1983), pp. 241-255
Published by: Blackwell Publishing on behalf of Cardiff University
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JOURNALOFLAW & SOCIETY
VOLUMEIO, NUMBER2 WINTER1983
0263-323 X $3.00

The Sociological Concept of Law

ROGER COTTERRELL*

My concern is with a familiar problem of jurisprudence but transplanted to

the context of the sociology of law. The central problem of much of
jurisprudence has been that of the definition of law or the specification of
the appropriate meaning of the word "law". For a great deal of modern
jurisprudence this problem has been virtually identical with that of achiev-
ing a scientific understanding of law. For Austin, to define law was to
designate the field of a science and to characterise the essential elements of
its subject matter. Among more modern writers the search for a definition
has been abandoned in favour of the attempt to formulate a concept of law
-a model of law in something of the manner of the models which natural
or social scientists use as guides for the construction of theories and for the
formulation of hypotheses to be tested by empirical research. Yet the
problem of the concept of law remains central to jurisprudence, something
more than a starting point for inquiry. For the sociology of law the
objectives of specifying a concept of law are often different from -
although not indifferent to - the concerns of many jurists. My purpose in
this paper is to outline in general terms some approaches to specification of
a concept of law which have characterised modern sociological study of
law, to consider some of their implications and to suggest some reasons
why certain conceptualisations of law may be more useful to the sociology
of law than others.

DIFFERING USES OF A CONCEPT OF LAW

The terms jurisprudence and sociology of law are too vague and refer to
too many diverse objectives and methods of legal analysis to allow
generalisation. For that reason I propose to use a distinction between
normative legal theory - which I take to be a centrally important part of
the territory of contemporary jurisprudence, in a sense its heart - and
empirical legal theory, which I take to be central to the concerns of the
sociology of law. By normative legal theory I mean theory which seeks to
explain the character of law solely in terms of the conceptual structure of
legal doctrine and the relationships between rules, principles, concepts and
values held to be presupposed or incorporated explicitly or implicitly
within it. By empirical legal theory I mean theory which seeks to explain

*
Faculty of Laws, Queen Mary College, London.

241
the character of law in terms of historical and social conditions and treats
the doctrinal and institutional characteristics of law emphasized in norma-
tive legal theory as explicable in terms of their social origins and effects.

a) The concept of law in normative legal theory

Contemporary jurisprudential writings like earlier ones reflect in their
normative legal theory the lawyer's professional approach to knowledge of
law: to fix the meaning of legal ideas is to explain the reality of law. To
make explicit a concept of law compatible with lawyers' assumptions about
legal doctrine is to know law since law is understood by normative legal
theory to exist only in concepts, rules and other elements of doctrine
developed in or implicit in legal practice. Thus, in jurisprudence the
enterprise of fixing the meaning of law is often merely the most general and
abstract form of the lawyer's natural professional concern with definition.
The specification of what is law is the same as the specification of what is
valid as law, of what can be relied on in arguments before a court, of how
to determine what the legal result should be when rules are interpreted and
applied by courts or other legal authorities. In contemporary normative
legal theory the object of specification of a concept of law is that of
explaining the possibility of logical system and coherence in legal doctrine;
to show how the professional doctrine of the lawyer constitutes an
integrated totality. The construction of a professionally plausible and logi-
cally coherent concept of law as doctrine is both the starting point for and
the final expression of knowledge of the nature of law from the standpoint
of normative legal theory. This is notwithstanding the fact that the tech-
niques of normative legal theory can be and are applied to analysis of
normative systems other than that suggested by lawyers' professional doc-
trine.

b) The concept of law in empirical legal theory

The numerous approaches to legal analysis which can be categorised as
sociological in the broadest sense are unified only by their deliberate
self-distancing from the professional viewpoint of the lawyer. It is implicit
in the aim of empirical legal theory that law is always viewed "from the
outside", from the perspective of an observer of legal institutions, doctrine
and behaviour, rather than that of a participant, although participants'
perceptions may be taken into account as data for the observer. Indeed
from a phenomenological standpoint the interpretation of participants'
perceptions may be of primary importance. Yet that interpretation
becomes possible only through a scientific distancing as determined and
thoroughgoing as the empathy which the observer (or, better,
encounterer) may seek with the observed (or encountered). Sociological
analysis of law has as its sole unifying objective the attempt to remedy the
assumed inadequacy of lawyers' doctrinal analyses of law. Beyond this,
sociological analysis may have a variety of aims. It may be a supplement to
professional doctrinal analysis, revealing the social consequences, environ-
242
ment or causesof legal policy and doctrinalor institutionaldevelopment[1]
so as to aid the lawyer's legal policy debates. Alternatively,with other
social scientific approaches,it may claim to provide a substitutefor doc-
trinalanalysisrevealingthe "unreality"of legal concepts[2]or the need for
legal policies whichbypassdoctrinaldisputes(for example, throughuse of
statisticsor "Brandeisbriefs", importationsof psychology and positivist
"treatment"approachesin criminaljustice and elsewhere). Finally,it may
seek to explain in sociological terms law as doctrine, practicesor institu-
tions, treatingthese as the subject matter of scientificanalysisand hence
distancingitself from the manifestfunctionsor purposesof the law which,
in themselves,are treated as part of the subjectmatterof inquiry.Behind
such an objectiveusuallystandsthe motive of adoptingan epistemological
standpoint from which a radical critique of and challenge to lawyers'
professionalconceptionsof law becomes possible. For some criticsthis is a
step towardsthe fundamentalreshapingof legal institutions,for others it
may be partof the means of demonstratingthe need for and exploringthe
possibilityof a social order dispensingwith law - at least in its accepted
forms.
Although such a classificationof objectives certainlycannot imply any
usefulcorrespondingclassificationof the researchto whichthey give rise[3]
it can highlightdifferencesof emphasisin the literature.The thirdobjec-
tive of sociologicalstudy of law specified above is in the fullest sense the
basis of a sociology of law (as opposed to a sociology in aid of law or a
sociology in place of law) treating the nature of law as its centre of
attentionratherthan being primarilyconcernedwith the effects of laws or
legal practices.At the same time it is the objective which is most directly
related to the development of empirical legal theory and which most
clearlydemandsthe developmentof a rigorousconceptof law, while much
other sociological inquiry related to law can and does merely employ
commonsense views of the meaningof law informedby lawyers'assump-
tions.
In fact sociologicalconcepts of law are extremelyvaried;muchmore so
than those presentedby the modernAnglo-Americanliteratureof norma-
tive legal theory. Oppositionsin basic conceptualisationsof law tend to be
easy to categorisein normativelegal theory (positivist/naturallaw, rules
versus principles,etc.) and the minoritypositionstend to display(as with
Dworkin) or are interpretedas displaying(as with Fuller) not so much a
coherentand adequatealternativeconceptionof law as a set of criticismsof
the prevailingorthodoxypresupposingthe fundamentalconceptswithinit.
Thus Fuller's central ideas of the functionalcharacterof law tend to be
underemphasisedin favour of stress on the positivistic elements in his
theories and his answers to questions of importance to positivists -
particularlythe question of legal validityand the normativecriteriaof the
existence of legal systems.[4] It is, thus, easy to identify powerfulortho-
doxies which are, no doubt, to be explained to a considerableextent in
termsof the underlyingcommonprofessionalaims and outlook of lawyers
243
in these societies, which also inform or influence the outlook of jurists. The
variety of aims with which sociological study of law may be pursued and its
lack of commitment to legal professional concerns have, however, already
been suggested above. We should therefore expect less uniformity in basic
conceptualisations of law in sociologically oriented literature.
Sociological concepts of law are also, in general, formulated in a less
sophisticated and elaborate manner than in normative legal theory. In part
this is because, as I have suggested, for normative legal theory definition or
conceptualisation of law is an end in itself. It constitutes knowledge of law
rather than, as with sociological study of law, a preliminary stage in
organising empirical study beyond legal doctrine as well as within it. Yet it
can be suggested that sociological studies have been in some measure
intimidated by the massive bulk of existing conceptual analysis of law
within the literature of normative legal theory. The problem here is that a
concept of law must take account of, though not necessarily treat as
central, the nature of law as doctrine (unless, as for example in Donald
Black's work[5], doctrine is almost entirely excluded from a concept of law
framed in strictly behavioural terms). Thus a sociology of law which seeks,
inter alia, to analyse the social significance of legal doctrine must confront
jurists' conceptions of the nature of legal doctrine. The legal sociologist
must become a lawyer in order to challenge or go beyond lawyers' concep-
tions of law.

SOCIOLOGICAL CONCEPTS OF LAW: A SKETCH OF A TYPOLOGY

a) Juridical Monism
Sociological concepts of law fall into three broad categories, the last of
which needs to be further subdivided. In the first category, law is under-
stood in terms of lawyers' conventional definitions of law. In contemporary
Western societies, therefore, as in many others, law is understood to be, in
essence, the law of the state as recognised by lawyers and state courts and
enforced by state agencies. Whatever the position in stateless societies, in
politically organised societies the effect of this conceptualisation of law is
to remove by definition many problems of the relationship between law
and state. If for Kelsen the state is merely the legal order seen from a
particular point of view[6], for many Marxist analysts law has been the
state seen from a particular viewpoint, or a technical apparatus of state
power. As such, while the state has long constituted an important focus of
Marxist concern, law has, until relatively recently, been of little interest; an
empirical theory of law has seemed unnecessary when knowledge of law is
seen to depend solely on a proper understanding of the nature of the
state.[7] Even contemporary Marxist analyses - whether based in
commodity form, state derivation or relative autonomy theories - of law
in advanced capitalist societies do not consider the possibility or utility of
conceptualising law as potentially or actually wider in scope than lawyer's
law or the law created, interpreted and enforced by what can be under-
244
stood in common-senseterms as state agencies.[8] Conventionaldefini-
tions generallyappear adequate in a traditionof inquirywhich does not
include law as such among its primarytheoreticallyspecified objects of
analysis.
Manynon-Marxistsociologicalapproachesto legal studyadopt a similar
conception of law. Donald Black, who in other respects offers a radical
behaviouralistcritiqueof lawyers'conceptionsof law as doctrine,characte-
riseslew as governmentalsocial control,the normativelife of a state andits
citizens.[9] Adam Podgorecki preserves a practicaldefinition of law as
lawyer,,'law alongsidea theoreticaldefinitionin widerterms.[10] Roberto
Unger[11]offers three concepts of law arrangedin a historicalmatrixof
modernization.Modern law in this view is the official and autonomous
legal orderof the modernstate. In Parsons'majorwritingson law[12],law
is assumed to be the lawyers' law of politically organised societies, a
distinct species of social norms. In these lawyers'law conceptionsother
normativesystemsin a society may be seen as deriveddirectlyor indirectly
from law, or as created or maintainedby "delegation"from it[13], or as
sources influencingthe content of law. They are, however, distinctfrom
and ultimatelysubordinateto it.

b) Juridical Pluralism
It might be thought that these standpointson the concept of law are in
many respects obvious and realistic. Yet even in contemporaryconven-
tional Western usage law refers not only to state law but also to the law
createdand appliedby internationalagenciesand to transnationalreligious
law (e.g. canonlaw) and historicallyit has includednumerousformsof law
(customary, territorial, mercantile, personal, ecclesiastical etc.) whose
creation,interpretationand enforcementhas not in any way dependedon
state agencies. Such usage has undoubtedlyinfluenceda second kind of
sociological conceptualisation of law which emphasises "juridical
pluralism".[14]The essence of these concepts of law is that state or
lawyers'law is only one form of law and is not necessarilyto be seen in
sociological terms as dominant. Law exists in various layers or levels
(Gurvitch); it may exist in associations (Gierke, Ehrlich), institutions
(Romano, Hauriou) or social systems of various size and nature. Social
groupsof whateversize may be seen as havingthe same fundamentallegal
needs (Llewellyn). Law may be seen as including unofficial as well as
official and intuitive as well as positive forms (Petrazycki).[15]
What is the significanceof such conceptualisations?Invariablyit is to
claim through the very definition of law that legal ideas and the fun-
damental problems of legal thought with which lawyers are familiarin
some sense pervadesocial life. Thus in Gurvitch'swork a phenomenolog-
ical approachto analysisof law is suggestedby the very definitionof the
juridical sphere. If the state law conception emphasizes the political
importanceof law and the relationshipbetween law and the power of the
state, the juridicalpluralismconceptiontends to stressthe pervasivesocial
245
importanceof legal ideas as responsesto fundamentalproblemsof social
interactionquite independentof the state yet developed at one particular
level in the political life of the state. The fundamentalproblem of most
such pluralistapproachesis that of explainingthe relationshipbetween
levels of law.[16] Hence these conceptsseem to manywritersto be wholly
inadequateto confront the political dimensionsof law, while for others
they imaginativelyopen up the possibilities of interpretingits complex
social dimensions.

c) State law as the dominant but not exclusive form of law

The third type of sociological conceptualisationof law offers a kind of
compromise between the two previous ones. Its essence is that law is
defined to extend beyond lawyers'law or state law, and lawyer'spractical
definitionsof the legal are considered sociologicallyinadequate, yet the
sociologicaldefinitionentails that a particularand clear analyticalprimacy
attachesto state law in contemporarysocieties, so that, for many but not
all purposes, law in these societies can be largelyequated with law as the
lawyer understandsit. These approachestreat a particularinstitutional
characteristicof contemporarystate law as essential to the definition of
law. Law exists to the extent that this institutionalcharacteristicis present.
Three variantsof this approachare representedin the literature,focuss-
ing on three institutionalcharacteristics:enforcement,disputeprocessing
and doctrinaldevelopment.ThusWeber'smajordefinitionof law relies on
the existence of particularsanctioningprocesses: "an order will be called
law if it is externallyguaranteedby the probabilitythat coercion (physical
or psychological)to bring about conformityor avenge violation, will be
applied by a staff of people holding themselves specially ready for that
purpose".[17]The essence of law is the existence of recognisablepolice
power[18]which may exist in many social groupsor systemsbut reachesa
particularlysignificantlevel of developmentin the state, so much so that
state law dominates in social reality and in sociological analysis of law.
Similarly,the fashionablerecent emphasison disputeprocessinghas pro-
vided a means of avoiding limitation of study to formal lawyers' law
processes and has made possible not only important advances in
anthropologicalanalysisof social control mechanismsbut also theoretical
study of the relationshipbetween formaland informaldisputeinstitutions
in Westernsocieties.[19]Yet there is no doubt that in much of the recent
discussionof informal, communitybased dispute institutionsin Western
societies, the ultimatedominanceof the state system of courtsis assumed
and informalityappearsas its supportand extension.[20]
Finally, a third approachfocusses on the concept of law as doctrineor
discourse, as a particularway of reasoningand problem-solving.In this
view law typicallyappearsas a variety of social rules, distinguishedfrom
others by relativelydeveloped institutionalmechanismsfor their creation/
revelation/discovery,interpretationor application. Unlike the first and
second institutionalapproaches, this one specifies neither enforcement
246
processes nor adjudicative processes as central, but emphasises the
integrity of doctrine whatever the nature of the institutional processes in
which doctrine is developed. "Legality", in some such approaches,
becomes a centrally important concept - indeed, the essence of the legal
- implying procedural prerequisites and consequences of the coherent
development of doctrine[21] and important moral overtones.[22] Its alter
ego "legalism", with implications of the adverse or pathological consequ-
ences of rulebound reasoning in social organisation, forms a focus for
other, often more critical, analysts. [23] The danger of this doctrinal focus is
that of assuming that contingent doctrinal characteristics of particular legal
orders constitute an "essence" of law; a failing that has been mercilessly
exposed by critics of certain early sociological conceptions of law as doc-
trine which entail excessively rigid characterisations of the sociological
implications of the existence of legal rules.[24]

DISCUSSION

a) The significance of a concept not restricted to state law

Important work has been done on the basis of concepts of law within each
of the categories outlined above. Is it necessary, then, or indeed possible to
make any general remarks about the relative utility of these approaches? It
is hardly necessary to say that a definition of law does not prevent the
researcher from studying other social phenomena outside the definition yet
seen, for certain purposes, to be relevant to legal analysis. Yet the usage of
the term "law" in studies of regulation or social order is important since,
like any such designation it suggests an integrity in the object of study
which separates it from other phenomena which may appear similar in
certain respects. To tie law to state law or lawyers' law imposes definite
limits on the extent to which law can be envisaged in radically differing
forms while yet retaining important continuities with what is presently
familiar to the lawyer. To see law as wider than state law - as compassing
so-called private legal systems[25] or forms of social order or social interac-
tion in diverse groups, institutions or associations, is to raise seriously the
hypothesis that the problems of legal regulation with which lawyers and
legislators concern themselves may arise in some form in many different
kinds of normative system. These problems include those of the justifica-
tions of legal decision-making and of the authority-bases of adjudicative
processes; of the conditions of legitimacy of legal orders; of the rela-
tionships between sources of legal authority; of the conditions of effective-
ness of enforcement of law; of the interpretation, development, generalis-
ation and systematisation of rules; of the translation of goals and policies
into regulatory form; of the relationship between rule and discretion as
administrative devices, and between certainty and justice as legal ideals.
To assume that these and other problems within or about law are peculiar
to lawyers' law is to make an unnecessarily restrictive assumption. The
issues involved may undoubtedly be developed most fully and with most

247
sophisticationin relation to lawyers' law. Some of these problems may
indeed be absent in some other normativesystems. And the specification
of whichof these foci of analysisare centraland whichperipheralto legal
study extending to normativeorders other than state law will depend in
part on the choice of a particularconceptof law. Yet to widen the concept
of law beyond the lawyer'sview of it is to assertthe sociologicalnecessity
of consideringthe possibilitythat legal thoughtor legal processesin various
empiricallyanalysableformsmay be a relativelypervasivefeatureof social
life ratherthan isolated phenomenaof a narrowprofessionalsphere.
The sociology of law may well be best served at the presentstage of its
developmentby a pluralityof approachesto the problemof the conceptof
law. Indeed, it is implicitin whatwas said earlierabout the varietyof aims
of writersin this field that this pluralityis probablyinevitablequite apart
from any question of its desirability. Yet increasing interest in both
phenomenologicaland anarchistapproachesto legal analysissuggests a
reorientationtowards a serious concern with non-state law systems of
regulationin contemporaryWestern societies and with the processes of
social rule formationquite apart from formal law-creatingprocesses.[26]
If, however,the dominantconceptof law in contemporarysociologyof law
remainsthe state-lawconcept the dangeris that the problemsof lawyers'
law may be seen as analyticallydistinct from those of other actual and
potential regulatorysystems. Thus the withering away of law can be
foretold, by some writers,without serious considerationof the possibility
that, like hydra-heads,law and its problems and consequencesmay be
chopped off in their most visible forms (as state law) only to remain or
reappearin other regions of social life which they in fact pervade.
The problemsof an uncompromisingjuridicalpluralismwhich accords
no theoretical primacy to state law have been clearly stated in the
literature[27],and touchedon above. The cruciallyimportantrelationship
between law and state is often treated only peripherallygiven such a
conceptual approach, and the relationshipbetween state law and other
forms of normativeorder remainsan unsolvedproblem.A useful concept
of law today must surely treat lawyers'.law as central, a primaryfocus of
analysis.Yet if analysisis to be developed to explore fully the reach into
society of law as both an instrumentof and a formalisationof powerand as
an ideologicalphenomenon,there seem good groundsfor makingcentral
the hypothesisthat legal thinkingis not merelylawyers'thinking,and that
the characteristicswhich the sociology of law identifies in state legal
institutionsmay not be uniqueto them. One consequenceof this mightbe
to avoid utopianthinkingwhichsuggestswithoutempiricaldemonstration
that the featuresof state law and its institutionswhichthe sociologyof law
identifies will not be replicatedin variousways in informalregulatoryor
adjudicatoryprocesses,or in social systems(e.g. regions,collectives,auto-
nomous or semi-autonomoussocial organisationsor groups)smallerthan
those of the nation state which forms the typical unit of modern legal
jurisdiction.[28]Another consequence might be to raise seriously the
248
possibility that the experience of forms of social organisation quite sepa-
rate from the official state legal system may yield insights into problems of
normative order which are typically considered only in relation to state or
lawyers' law.[29] The experience of "simpler" legal orders of simpler social
systems than that of the nation state may offer legal insights in a manner
somewhat parallel to the insights into complex societies which anthropo-
logists have often claimed as one special justification for the study of
relatively simple societies.
These kinds of considerations suggest links between aspects of the con-
cerns of the sociology of law and of the sociology of organisations. Indeed,
at one stage in the recent development of the sociology of law influences
from this other field of social research were manifest.[30] Interestingly a
recent survey of problems of the field of the sociology of organisations has
called for a reorientation of emphases to take account of the increasing
importance of phenomenological perspectives and other recent develop-
ments in theory.[31] Thus Peter Manning notes the failure of sociological
studies to find a way of specifying in objective terms the nature of organis-
ations and calls for a recognition of the importance of the conceptions of
the organisation held by those participating in it. Occupational culture is
thus of great importance. It provides the image of the organisation for
those involved in it; "the framework around which organisational work is
legitimated".[32] It acts as a "grid or screen by which events are defined
and also makes relevant internal rules". [33] Using empirical data on police
organisation as a foundation for analysis, Manning identifies three ele-
ments which constitute occupational culture: principles (the most abstract
statement of culture), working rules ("by which the principles are transl-
ated into the everyday negotiated bases for work"[34]) and actual work
practices. He goes so far as to set out a detailed code of such principles and
rules for the occupational culture of the police he studied in London and in
the United States. It is important to stress that an analysis in terms of the
relation of rules and principles offers only one possible and partial
approach to the problem of analysis of a structure of normative regulation.
Yet the parallel with more familiar issues of legal theory seems obvious.
From an entirely different point of view it might be asked whether a
sociology of law tied to lawyers' conventional definitions of law ties itself to
a form of regulation which may be gradually decreasing in importance.
Numerous forms of bureaucratic regulation and control seem to be
developing or to have developed in close alliance with orthodox legal forms
yet in substantial independence of the reach of analysis of the lawyer.
Much of the ai'alysis of rule and discretion in welfare provision, in prison
regimes and in regulation of the national economy and of particular public
and private enterprises is concerned in various ways with this matter. Much
social theory now foresees the gradual superseding of lawyers' law in its
familiar forms by a variety of technological mechanisms of administration
and control. Whether such analyses have merit is not relevant here.[35]
Neither can it be argued that the sociology of law can usefully consider all

249
aspects of any such transformation and all the varied forms of control
which have been discussed in recent critical literature.[36] Yet it can be
argued that the sociology of law must take sufficient account, as central to
its project, of forms of regulation going far beyond the boundaries of state
or lawyers' law: sufficient, that is, so as to be able to make assessments of
the nature of changes in patterns of regulation fundamentally important to
any judgment of the changing social significance of the lawyers' law of the
state.
The conclusion to which these arguments lead is that, in general terms, a
concept of law which treats state law as central to the concept of law in
modern industrialised societies, but treats certain other normative systems
in these societies as directly comparable and closely related theoretically
within a kind of regulatory continuum, is of particular utility for
confronting contemporary problems posed by theory and empirical
research in the sociology of law. My view, then, is that the kind of
institutional concepts of law discussed earlier which avoid both exclusive
concern with state law and also pure juridical pluralism, and treat state law
as central to but not the exclusive concern of analysis of law in contempor-
ary Western societies, are potentially fruitful.

b) Some argumentsfor a doctrinalfocus in the sociological concept of law

It may be appropriate to conclude with some brief remarks on the three
foci (enforcement, disputing, doctrine) mentioned above as according
limited analytical primacy to state law. Approaches taking enforcement
mechanisms as of central importance make it possible to stress the import-
ance of coercive social institutions in the frameworks of social order and
the varied agencies of organised force in societies. Law may appear in such
conceptions as essentially a system of order supported by an organised
sanctioning apparatus but not necessarily based in rules or doctrine. One
important advantage of such a concept of law is that is offers a relatively
simple means of expressing theoretically the position of state law in
relation to other forms of law. State law dominates to the extent that it
holds a monopoly of organised force; to the extent that its sanctioning
agencies can prevail in conflict with those of other normative orders. On
the other hand, however, most socially significant normative structures can
be seen as sanctioned even without formal enforcement machinery, and
much of state law itself (e.g. areas of constitutional law) is not dependent
for its recognition by lawyers on the existence of related institutionalised
sanctions, as the analytical jurists themselves demonstrated. More ser-
iously, to treat coercion as the key defining element of law raises the
problem, familiar from criticisms of early Soviet legal theory such as
Stuchka's, of distiguishing legal coercion from other forms of coercion.
Thus, as Pashukanis argued, if law is an expression of class power it is a
particular kind of expression of power and it is necessary to explain why
class power takes legal form and what the term "legal form" involves.[37]
The dispute processing focus in its modern versions typically recognises
250
that law may less often resolve disputes than "cool them out". Dispute
processing thus provides a concept of a system of order which, as with the
enforcement focus, does not necessarily entail the existence of rules or
doctrine as essential to the existence of law. Yet, it can be asked how
central dispute processing is to state law, given the relatively small number
of disputes processed by courts and other legal tribunals in comparison
with those dealt with by other means. For example, while the London
Commercial Court has dealt with over 100 cases a year, London commer-
cial arbitration bodies have been handling an estimated 10,000.[38] Thus
while dispute processing has been an important modern focus of work in
the sociology of law, it is significant that influential theoretical writing
developing this focus has often sought to replace the concept of law with
that of dispute processing rather than to take dispute processing as the
basis of a concept of law. This suggests a recognition that while dispute
institutions are of great social significance, a focus on them is not properly
seen as an adequate or appropriate focus for analysis of "law" as such.
What may be much more central to law, understood primarily but not
exclusively as state law, is the production of ideologically and technically
important doctrine by courts and other state controlled dispute institutions
on the occasion of dispute processing, rather than the processing itself,
which concerns only a small minority of disputes arising in society.
These considerations may suggest the special utility of a concept of law
which focusses on doctrine and distinguishes law from other social rules in
terms of the existence of specific institutions and processes for the creation,
interpretation and application of doctrine. Law thus consists, like many
other normative systems, of rules, concepts, and principles and is
distinguished from them in degree rather than in kind by the existence of
an institutional structure for the development and organisation of doctrine.
This institutional structure can presumably take many forms and may not
provide for all three functions of creation of doctrine, adjudication or
application, and enforcement. But its centrality in a concept of law would
ensure that law is not considered merely as disembodied doctrine. Law
appears as doctrine produced in, embodied in and legitimating institutional
practices. Despite the problems of Louis Althusser's theory of
ideology[39], its cardinal virtue was to affirm the materiality and specificity
of ideology as expressed and embodied in social relations. [40] In somewhat
analogous manner legal doctrine (which can be seen in one aspect as a
fundamental basis, support and elaboration of a more diffuse legal ideol-
ogy embodied in social relations) can be thought of as embodied in particu-
lar institutional practices. Such practices vary considerably in the different
social systems in which law can be held to exist. In this regard legal
professionalisation - in the sense of professional monopolisation and
guardianship of doctrine - appears as a central feature of the emergence
of the most developed forms of law.
Such a view of law as doctrine makes it possible to see the ideological
aspects of law as of particular importance and also, in a sense, incorporates
251
much that is of major significance in the enforcement and dispute
processing foci. As many writers have stressed, ideology cloaks power and
class relations at the same time as it protects and guarantees them. Pashu-
kanis suggested that "defence of the so-called abstract foundations of the
legal system is the most general form of defence of bourgeois class
interests".[41] Also from another viewpoint, it has been stressed in mod-
ern discussions of power that one of its vital forms is the power to set the
agenda of debate or decision[42], a matter which depends significantly on
ideological conditions.[43] Similarly it can be argued that legal dispute
processing is by and large effective to "cool out" conflicts because of the
acceptance of court procedures which depend for their authority on the
ideological foundations and effects of legal doctrine. The court is seen to
act impersonally in applying the law. To compare various kinds of informal
dispute processing mechanisms without analysing as centrally significant
the ideological conditions under which legal dispute processing takes place
may lead to unrealistic expectations of the effects of informal processes.
Yet it would be as misleading to reduce all questions of power to analyses
of ideology as it would be to explain the character of ideology in all its
many forms and effects as the direct expression of coercive relations. At
the same time as the elaboration of law as doctrine appears as a means of
developing and sustaining ideology it can be seen also as a technical means
by which the exercise of power is formalised and so co-ordinated as a
precision instrument of control at many "levels" or in many aspects of
social life. The choice of a concept of law is, thus, in social science merely a
starting point for analysis. Yet, in important respects it may influence the
agenda of research and the forms which the sociological imagination takes
in legal study.

NOTES AND REFERENCES

This is a revised and expanded version of a paper delivered at a seminar at the University of
Edinburgh on February 11th 1983. I am grateful to the Edinburgh Department of Jurispru-
dence for the invitation to present these ideas and to all those who discussed them on that
occasion; also to Peter Fitzpatrick for his helpful comments on a subsequent draft.

[1] G. Gurvitch, Sociology of Law (1947) 7. Such objectives may offer the greatest prospect
of sympathetic support from lawyers at "the level of mutual service" (Willock (1974) 1
Brit. J. Law and Society 5-6) and help to disarm "powerful antagonists" (Gurvitch op.
cit. 1). See also J. Carbonnier, Sociologie juridique (1978) 369 ff.

[2] See e.g. A. Podgorecki, Law and Society (1974) 47, suggesting sociology of law as an
empirical replacement for jurisprudence. Eugen Ehrlich, Fundamental Principles of the
Sociology of Law (1936), following the tenets of the Freirechtslehre jurists, argues for
sociology of law partly as a substitute for conceptual analysis and partly as its scientific
basis (pp. 339-340). Meehl, "Law and the Fireside Inductions: Some Reflections of a
Clinical Psychologist" in Law, Justice and the Individual in Society (1977; ed. J. Tapp
and F. Levine) is typical of much writing from a psychological perspective. For an early
polemic emphasising the roots of this approach within "realist" jurisprudence see F.
Cohen, "Transcendental Nonsense and the Functional Approach" (1935) 35 Col. L.

252
 Rev. 809; "Legal concepts are supernaturalentities which do not have a verifiable
existenceexcept to the eyes of faith" (p. 821).
[3] Cf. D. Nelken, "Sociologyof Law v. Socio-LegalStudies:The False Divide". Paper
presentedat Universityof Kent Conferenceon CriticalLegal ScholarshipApril 1981;
Nelken, "The 'Gap Problem'in the Sociologyof Law:A TheoreticalReview"(1981) 1
Windsor Yearbook of Access of Justice 35-61.

[4] See e.g., Lloyd, Introduction to Jurisprudence (4th ed. 1979) 50-51, 88-90; R. Summers,
"ProfessorFulleron Moralityand Law"in MoreEssaysin LegalPhilosophy(1971;ed.
R. Summers); Symposium on The Morality of Law (1965) 10 Villanova Law Rev. 631.
Cf. Summers,"ProfessorFuller'sJurisprudence andAmerica'sDominantPhilosophyof
Law"(1978)92 Harv. L. Rev, 433, where, in the courseof a sympatheticdiscussion,the
changingattitudeto Fuller'swork in recentcommentariesis noted.
[5] Especially The Behaviour of Law (1976).
[6] General Theory of Law and State (1945) 190-1.
[7] Pashukanis'work providesthe most interestingexceptionto this, where an attemptis
made to combinea Leninistconceptionof the state with a theoryof law derivedfrom
Marx'sanalysisof the fetishismof commodities.But the resultis a vagueandambiguous
analysisof the legal functionsof the state inappropriateto the politicalprojectof Soviet
Marxismat the time in which he wrote, and which providesa major reason for the
rejectionof the theoryin Marxistpolitics.See E.B. Pashukanis,GeneralTheoryof Law
and Marxism(1978)Ch. 5; R. Cotterrell,"CommodityFormandLegalForm:Pashuka-
nis' Outlineof a MaterialistTheoryof Law"(1979) Ideologyand ConsciousnessNo. 6
111-119.
[8] This despitethe fact that severalsophisticatedrecentMarxistanalysesof the state have
deliberatelyrejected its commonsense connotationof governmentagenciesin prefer-
ence for a conceptionwhichstressesthe pervasivenessof state controlsin the "private"
sphere. Most importantin this respect is the work of Poulantzasand Althusser,and
moderninterpretationsof Gramsci'sinsights.Law, however, tends to remainconcep-
tualised in these writings as lawyers' law applied by and to governmentagencies,
although,notablyin Althusser'sconceptof ideologicalstate apparatuses,its pervasive-
ness as ideology throughmany levels social relationsis accepted.
[9] Black,op. cit., 2, See also his "TheBoundariesof LegalSociology"(1972)81 YaleL. J.
1086, where the concept is held to be "moreinclusivethan an Americanlawyermight
deem proper"but to exclude such forms of social control as "bureaucraticrules in
privateorganisations".While the concept undoubtedlylacks precisionand in Black's
view can encompass"any act by a politicalbody that concernsthe definitionof social
order or its defence" it is clear that in research practice it functions as a strictly
behaviouralversionof the state law conception.
[10] Law and Society 46.
[11] Law in Modern Society (1976).
[12] For example, "The Law and Social Control"in Law and Sociology (1962; ed. W.M.
Evan); Societies (1966); The System of Modern Societies (1971).
[13] Carbonnier,op. cit. 208.
[14] Ibid. 208-218; Carbonnier,Flexibledroit(5th ed 1983) 16-23.
[15] Gurvitch, op. cit., Ehrlich, op. cit., O.v. Gierke, Associations and Law (1977), Political
Theories of the Middle Age (1900), Natural Law and the Theory of Society (1958); S.
Romano, L'ordre juridique (1975); A. Broderick, ed The French Institutionalists:
Hauriou, Renard, Delos (1970); L.Petrazycki, Law and Morality (1955); K. Llewellyn,

253
 "The Normative, the Legal and the Law-Jobs"(1940) 49 Yale L.J. 1355, and cf.
Llewellyn'sremarkson "folk-law"in "A RealisticJurisprudence- The Next Step"
(1930) 30 Col. L. Rev 431, 462-463.
[16] P. Fitzpatrick,"MarxismandLegalPluralism"(1982-3) 1 AustralianJournalof Lawand
Society No 2.
[17] M. Rheinstein ed., Max Weber on Law in Economy and Society (1954) 5.
[18] See also e.g. E.A. Hoebel, The Law of Primitive Man (1954) 26; A.R. Radcliffe-Brown,
"Primitive Law" in 9 Encyclopedia of the Social Sciences (1933) 202-206, and "Social
Sanction"in 13 ibid. (1934) 531-534.
[19] R. Abel, "A ComparativeTheoryof DisputeInstitutionsin Society"(1973)8 Law and
Society Rev. 217.
[20] See e.g. Abel, "ConservativeConflictand the Reproductionof Capitalism:The Role of
Informal Justice" (1981) 9 International Journal of the Sociology of Law 245; Z. Bank-
owski and G. Mungham,"Laypeopleand Lawpeopleand the Administrationof the
LowerCourts"ibid. 85. Cf. M. Cainand K. Kulcsar,"ThinkingDisputes:An Essayon
the Originsof the Dispute Industry"(1981) 16 Law and SocietyRev. 375.
[21] See e.g. P. Selznick, Law, Society and Industrial Justice (1969); J. Skolnick, Justice
Without Trial (2nd ed. 1975).

[22] L. Fuller, TheMoralityof Law (rev. ed. 1969);Selznick,"Sociologyand NaturalLaw"

(1961) 6 Natural Law Forum 84.
[23] J. Shklar,Legalism(1964).
[24] E.g. Black, "Boundariesof Legal Sociology",supraand his reviewof Leon Mayhew's
Law and Equal Opportunity in (1970) 40 Sociological Inquiry 179.

[25] W. M. Evan, "PublicandPrivateLegalSystems"in LawandSociology(1962;ed W. M.

Evan).
[26] There is alsoevidenceof a growingconcernwiththe conditionsof bothlegalandpolitical
pluralismin Westernsocieties amongsome Marxistwriters.See P. Fitzpatrick,supra,
and N. Geras, "ClassicalMarxismand PoliticalRepresentation"(1981) 125 New Left
Review 75, See also Fitzpatrick,"Law,Pluralityand Underdevelopment"in Legality,
Ideologyand the State(1983; ed. D. Sugarman).But whetherMarxisttheorywith its
central concern with a "social totality" conceived in terms of integratedmodes of
productioncan accommodatesucha pluralisticconceptionof law is an open questionat
present. Certainlyany such developmentswould necessitate a radicalreshapingof
establishedMarxistconcepts.
[27] See e.g. Carbonnier, Sociologie juridique 213ff.
[28] Cf. R. A. Dahl & E. R. Tufte, Size and Democracy (1974); K. Newton "Is Small Really
So Beautiful . . ." (1982) 30 Political Studies 190; G. S. Black, "Conflict in the
Community:A Theoryof the Effectsof CommunitySize" (1974)68 Amer.Pol.Sci.Rev
1245; M. Taylor, Community, Anarchy and Liberty (1982).
[29] This is, of course, the methodological assumption underlying Karl Llewellyn's "law-
jobs" theory ("The Normative, the Legal and the Law-Jobs",supra)which boldly
encompassesthe "law"of "a newlyweddedcouple, a newlyformedpartnership,a two
child casual playgroup". Cf. the fictional illustration of the "legalistic child" in W.
Twining & D. Miers, How To Do Things With Rules (2nd ed. 1982).
[30] Particularly through the influence of writers such as Selznick and Evan. For modern
analyses see e.g. W. M. Evan, "Administrative Law and Organization Theory" (1977)
19 Journal of Legal Education 106; L. Baum, "Implementation of Judicial Decisions: An

254
 OrganizationalAnalysis"(1976)4 AmericanPoliticsQuarterly86, But presentconcerns
seem to be with organisationalproblemsof the state legal systemratherthan with the
regulatoryproblemsof organisationsanalysedas problemsrelevantto legal theory.
[31] P. K. Manning,"OrganisationalWork:Structurationof Environments"(1982)33 Brit-
ish Journalof Sociology 118.
[32] Ibid. 125.
[33] Ibid. 130.
[34] Ibid. 125.
[35] See e.g. D. Nelken, "Is There a Crisisin Law and LegalIdeology?"(1982)9 Journalof
Law and Society177.
[36] See especially Michel Foucault'svarious writings, T. Mathiesen, Law, Society and
PoliticalAction (1980) and J. Donzelot, The Policingof Families:WelfareVersusthe
State(1980).
[37] Pashukanis,op. cit, 83.
[38] Cf. R. B. Ferguson,"TheAdjudicationof CommercialDisputesandthe LegalSystemin
ModernEngland"(1980) 7 Brit. J. Law and Society141, 146.
[39] For a discussionof the significanceof these problemsfor legal theorysee R. Cotterrell,
"Conceptualizing Law:Problemsand Prospectsof ContemporaryLegalTheory"(1981)
10 Economyand Society348, 359-363.
[40] See especiallyP. Hirst, On Law and Ideology(1979) 22-39.
[41] Op. cit. 39.
[42] P. Bachrach& M. Baratz,Powerand Poverty:Theoryand practice(1970)
[43] S. Lukes, Power (1974) 23.

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