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Author's Personal Copy Author's personal copy Provided for non-commercial research and educational use only. Not for reproduction, distribution or commercial use. This article was originally published in the International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, published by Elsevier, and the attached copy is provided by Elsevier for the author’s benefit and for the benefit of the author’s institution, for non-commercial research and educational use including without limitation use in instruction at your institution, sending it to specific colleagues who you know, and providing a copy to your institution’s administrator. All other uses, reproduction and distribution, including without limitation commercial reprints, selling or licensing copies or access, or posting on open internet sites, your personal or institution’s website or repository, are prohibited. For exceptions, permission may be sought for such use through Elsevier’s permissions site at: http://www.elsevier.com/locate/permissionusematerial From Edelman, L., Galanter, M., 2015. Law: The Socio-Legal Perspective. In: James D. Wright (editor-in-chief), International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Vol 13. Oxford: Elsevier. pp. 604–613. ISBN: 9780080970868 Copyright © 2015 Elsevier Ltd. unless otherwise stated. All rights reserved. Elsevier Author's personal copy Law: The Socio-Legal Perspective Lauren Edelman, University of California - Berkeley, Berkeley, CA, USA Marc Galanter, University of Wisconsin - Madison, Madison, WI, USA Ó 2015 Elsevier Ltd. All rights reserved. Abstract The sociolegal perspective on law portrays law as dynamically intertwined with society, politics, markets, science and technology, culture, and other social institutions. In this view, law is seen as a set of socially institutionalized norms of varying degrees of formality, ranging from statutes and judicial decisions at the formal end of the spectrum to socially institutionalized norms and cultural understandings that become embedded in everyday life at the informal end of the spectrum. Law is envisioned as deeply embedded in society rather than as autonomous in relation to the citizens and organizations that it is designed to regulate. The sociolegal perspective tends to emphasize three broad dimensions along which law matters to social life: regulatory, procedural, and constitutive. Introduction Albiston, 2005; Engel and Munger, 2003; Ewick and Silbey, 1998; Merry, 1990; Nielsen, 2000; Sarat, 1990), governance The sociolegal perspective is our portmanteau term for a set of processes in private organizations and other nonstate entities diverse but overlapping views of legal phenomena and their (Edelman et al., 1993; Edelman and Suchman, 1997; Edelman settings. It originally evolved in reaction to what was perceived et al., 1999; Nelson and Bridges, 1999; Stryker, 2000; Suchman as an overly formalistic emphasis in law schools and legal and Cahill, 1996), dispute resolution and barriers to the analysis on law as a rational set of edicts emanating from the mobilization of justice (Felstiner et al., 1980; Michelson, 2007; state, applied by the courts, and followed by citizens. As part of Miller and Sarat, 1980; Morrill et al., 2010; Nielsen and Nelson, the ‘Law and Society Movement’ of the mid-1960s, sociolegal 2005; Albiston et al., 2014), the operation of power and scholars offered a broader and more socially and empirically inequality in legal processes and institutions (Curran, 1977; grounded understanding of law. The sociolegal perspective Galanter, 1974; Mayhew and Reiss, 1969) and in the legal understands law as much broader than the statutes, judicial profession (Galanter and Palay, 1994; Handler, 1967; Heinz decisions, and administrative regulations that are the primary et al., 2005; Rosenberg et al., 1993), and the limits of law in focus of law schools and practicing lawyers, and as dynamically remedying inequalities on the basis of class, race, gender, and intertwined with society, politics, markets, science and tech- other social dimensions (Albiston, 2010; Best et al., 2011; nology, culture, and other social institutions. Generally, law is Crenshaw, 1991; Frohmann and Mertz, 1994; Gómez, 2000, viewed as a set of socially institutionalized norms of varying 2010; Gorman, 2005; Haney-López, 2007; Obasogie, 2013; degrees of formality, ranging from statutes and judicial deci- Pager, 2007; Suk, 2010). Psychologists often study jury behavior sions at the formal end of the spectrum to socially institu- (Diamond and Casper, 1992; Diamond and Rose, 2005) and tionalized norms and cultural understandings that become perceptions of justice and legal institutions (Tyler, 1990; Tyler embedded in everyday life at the informal end of the spectrum. and Huo, 2002), whereas economists tend to focus on the Law is envisioned as deeply embedded in society rather than as efficiency of various formal legal rules and rule-making regimes autonomous in relation to the citizens and organizations that it (Becker, 1968; Cooter and Rubinfeld, 1989; Donahue and is designed to regulate. Law varies substantially across social Heckman, 1991; Posner, 1975). Increasingly, humanities contexts, moreover. Not only do formal laws differ across scholars have entered into the sociolegal arena and have nations and subunits of nations, but the understandings and brought attention to the operation of law through texts, social implementations of law vary across contexts even when formal constructions, and meaning making outside of the legal realm laws look similar. (Constable, 2009; Lokaneeta, 2010; Reichman, 2009). The boundaries of the sociolegal perspective are fluid and These disciplinary orientations do not have hard bound- evolving, varying somewhat across disciplinary orientations. aries, however, and sociolegal scholarship is characterized by Political scientists tend to emphasize rules in the public sphere, interdisciplinary innovation and cross-disciplinary attention to focusing on judicial decision making (Epstein and Knight, various sociolegal problems. New sociolegal problems in the 1998; Segal and Spaeth, 2002), as well as voting (Burch, areas of human rights, social movements, environment, tech- 2011; Erikson, 1995), street-level bureaucrats in public nology, reproduction, globalization, and the creation and agencies (Lipsky, 1980; Maynard-Moody and Musheno, 2012), breakdown of markets generate new areas of sociolegal schol- the politics of criminal justice (Feeley, 1992); constitutions, arship. The sociolegal perspective is a ‘big tent’ involving constitutionalism, and constitutional courts (Elkins et al., 2009; multiple epistemologies, methodologies, and disciplinary Klug, 2000; Moustafa, 2003); and ‘soft law’ (Abbott and Snidal, perspectives, unified primarily by its understanding of law as 2000; Bothe, 1980; Chinkin, 1989; Gruchalla-Wesierski, 1984; a set of norms or institutionalized rules. Seidl-Hohenveldern, 1999; Tammes, 1983). Sociologists tend Because of the breadth and lack of uniformity within the to emphasize legal meaning making by citizens and the subtle sociolegal perspective, any effort to characterize it will neces- influence of ‘legal consciousness’ in everyday life (Abrego, 2011; sarily be imperfect and incomplete. There is a tension between 604 International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Volume 13 http://dx.doi.org/10.1016/B978-0-08-097086-8.86148-6 International Encyclopedia of the Social & Behavioral Sciences, Second Edition, 2015, 604–613 Author's personal copy Law: The Socio-Legal Perspective 605 emphasizing founding principles and evolving understandings disciplinary and methodological boundaries, allowing greater and debates. Nonetheless, we think that the sociolegal understanding of the ways in which the regulatory, procedural, perspective tends to emphasize three broad dimensions along and constitutive facets of law are dynamically intertwined. which law matters to social life: regulatory, procedural, and Substantive foci are also loosely correlated with these three constitutive (Edelman and Suchman, 1997). The regulatory dimensions. For example, studies of judicial behavior are dimension involves studies or theories of law as a set of formal primarily conducted by political scientists using quantitative rules, informal norms, and principles underlying legal policies methodological techniques. These studies examine the regula- that are either meant to shape or control social behavior. tory dimension of law to the extent that they focus on the Studies of the legal impact, compliance and noncompliance, substantive doctrine that judges devise or the impact of judicial and the role of extralegal normative orders generally emphasize attitudes or politics on judicial decisions, and they examine the the regulatory dimension of law. The procedural dimension procedural dimension of law to the extent that they focus on involves studies or theories of law as a set of tools, practices, the impact of judges’ strategic efforts to avoid being overturned resources, or strategies that may be mobilized for creating, or to mobilize legitimacy for the court. Studies of law and challenging, and resolving claims, disputes, and rule ambigui- social movements are mostly conducted by sociologists, ties; for seeking strategic advantages vis-à-vis other parties; for although some political scientists also work in this area, and seeking to rationalize transactions; and the like. Studies of tend to use qualitative methods. Many of these studies focus
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