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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 on contracting behavior, dispute resolution, cause lawyering in the procedural dimension of law, that is, how movement litigation, and social movement efforts to enact favorable legal activists use litigation and other strategies to achieve their rules generally emphasize the procedural dimension of law. substantive goals. Studies of legal consciousness are mostly Finally, the constitutive dimension of law involves analyses of conducted by sociologists and anthropologists, use almost law as a set of symbols and forms that evoke and replicate exclusively qualitative methods, and highlight the constitutive meanings and understandings. Constitutive analyses generally dimensions of law. study the role of law in everyday life including the ways in Given the overlapping nature of the three dimensions we which legal categories and concepts structure social behavior, have outlined (both in terms of disciplinary and methodo- the way in which people understand the law and invoke it in logical orientation and substantive topics) and the chrono- their daily routines, and ways in which people mobilize or logical development of the field, there are many ways that the resist law (Ewick and Silbey, 1998). basic arguments of the sociolegal perspective could be pre- The regulatory, procedural, and constitutive dimensions of sented. In the remainder of this article, we organize our law are not mutually exclusive, and, in fact, most social discussion of the sociolegal conception of law by broad behavior involves aspects of more than one of these dimen- substantive themes in sociolegal analysis. Within our discus- sions. To some extent, the regulatory and procedural dimen- sion of those themes, we discuss how, and the extent to which, sions of law were the focus of earlier sociolegal studies, which scholarship on those topics emphasizes the regulatory, proce- often examined the impact of particular legal rules; the ‘gap’ dural, and constitutive aspects of law. We are also attentive to between ‘law on the books’ (i.e., formal law) and ‘law in action’ changes over time in the foci of sociolegal studies. (i.e., law in its social context), or discretion in the application of formal legal rules. The constitutive dimension is more common in more recent sociolegal scholarship, which tends to Early Themes examine the cultural facets of law, to deemphasize formal legal institutions, and to emphasize the ways in which law shapes The themes we discuss in this section became prominent early social thought and social behavior not through rules and in the articulation of the sociolegal perspective on law, that is, sanctions but rather through meaning making. The turn toward in the mid-1960s and 1970s, although these themes are far constitutive studies has caused a rethinking of the regulatory from absent in more recent analyses. These early analyses were and procedural facets of law, leading to more attention to social primarily oriented toward the regulatory and procedural construction and legal consciousness within analyses of the aspects of law, but many have been revisited in recent years regulatory impact of law or the procedural uses of law. with a more constitutive flare. To complicate matters further, the regulatory, procedural, and constitutive dimensions of law are loosely correlated with The Gap both disciplines and methodologies. Economists, psycholo- gists, most political scientists, and some sociologists tend to Early law and society research focused on what is seen as a gap focus on the regulatory and procedural dimensions of law between ‘law on the books’ and ‘law in action.’‘Law on the using more traditional and more quantitative methodologies books’ refers not simply to laws codified in statute books or (sometimes referred to as ‘normal science’), whereas anthro- judicial decisions, but more generally to the formal legal pologists, some sociologists, and some political scientists, as system and to assumptions about how that system operates or well as some humanities scholars, especially recently, are more ought to operate. In contrast, ‘law in action’ refers to law in its attentive to the constitutive dimension of law and tend to use social context, which is often determined through empirical qualitative empirical methods such as ethnography and inter- study. Gap studies focus on both the regulatory and procedural viewing or alternative methodologies such as discourse or facets of law. Attention to regulatory processes often takes the textual analysis. Legal scholarship has become more interdis- form of legal impact studies that examine whether law that ciplinary over time, as reflected in the work of scholars in law seeks to regulate social behavior in fact produces compliance schools. Furthermore, many sociolegal scholars work across by organizations (Hawkins, 1984; Stone, 1975; Vaughan,

International Encyclopedia of the Social & Behavioral Sciences, Second Edition, 2015, 604–613 Author's personal copy 606 Law: The Socio-Legal Perspective

1985) or individuals (Tyler, 1990), and how law in fact oper- Because formal law is often quite ambiguous, in part because ates in society given power, discretion, social roles, deviance, its creators had diverse interests and objectives, it is misleading and other social realities (Albiston, 1999; Friedman, 1975; to characterize the actual operation of law as a deviation from Galanter, 1974; Macaulay, 1963). Studies that emphasize the the clear goals of formal laws. Rather, law can only be under- procedural dimension of law tend to identify how laws are stood as embedded in its social context, where it is both the used by various parties in ways that deviate from the formal product and the source of social practices. model. For example, Macaulay’s seminal article on contract law showed that businesses often preferred informal agreements to Bargaining and Negotiation as Key Features of the Legal Order formal contracts and rarely invoked formal contractual reme- dies when contracts were breached (Macaulay, 1963). Merry’s Emphasizing the procedural facet of law, one of the early (1979) article on strategies of dispute management in an ‘discoveries’ of law and society research is the pervasiveness and urban neighborhood shows how people file complaints in centrality of bargaining throughout the legal world. Processes criminal courts as a way of harassing neighbors with whom of authoritative decision making turn out in fact to revolve they are having a dispute. Engel’s (1984) work on personal around negotiation. Ostensibly adjudicative processes become injury dispute resolution shows how social norms affect the negotiative ones; decision makers clothed with arbitral powers likelihood of using courts to resolve disputes of various types. are transformed into mediators. The negotiated outcome in the He shows that in a small cohesive community, people are shadow of the law turns out to be the master pattern of less likely to make use of personal injury litigation because disputing in American courts and administrative agencies. it violates norms about personal responsibility. Among Bargaining often takes place in the ‘shadow of the law’ newcomers to the community, who were less likely to share (Mnookin and Kornhauser, 1979). The rules of formal law these cultural ideas, personal injury litigation was more likely. confer on the parties what Mnookin and Kornhauser call a ‘bar- A good deal of law and society research examines the gap gaining endowment,’ that is, a set of ‘counters’ to be used in in the contexts of judges, courts, legislators, administrative bargaining between disputants (Ross, 1970). The bargaining agencies, lawyers, and police (see, e.g., Courts and Adjudication; endowment that the formal law bestows on parties derives not Rights: Legal Aspects; Race and the Law; Civil Rights; Injustice: only from the substantive entitlements conferred by the legal Legal Aspects). In general, the sociolegal perspective empha- rules but also from the adjectival rules that enable those enti- sizes the way in which these various actors and institutions tlements to be vindicated. But rules are only one source of adjust to their social contexts. Instead of a portrait in which the endowment conferred by the legal process: The delay, cost, judges are impartial and passive, legislators act in the public and uncertainty of eliciting a favorable determination also interest, laws are clear, administrative agencies enforce the law, confer bargaining counters on the disputants. Delay, cost, courts and judges stand as impartial interpreters of law, lawyers and uncertainty may themselves be the product of rules, but they act as adversarial advocates, police exercise no discretion, and also result from such nonrule factors as the number, distribu- people respond rationally and promptly to all violations of law, tion, fees, and work patterns of courts and lawyers. The meaning we see a world in which judges are influenced by their political of the endowment bestowed by the law is not fixed and invari- backgrounds, attitudes, and strategic efforts to succeed at able, but depends on the relative characteristics of the dispu- reelection and avoid being overturned by higher courts (Epstein tants: their preferences, negotiating skill, aversion to risk, ability and Knight, 2000; Segal and Spaeth, 2002); courts become to bear costs and delays, to respond to deadlines and emergen- policy makers (Feeley and Rubin, 1999); legislators make deals cies, and so forth. A different mix of disputant capabilities may (Buchanan and Tullock, 1965); administrative agencies soften make a given endowment take on a very different significance. the formal law, mediate disputes, engage in ‘soft enforcement’ Knowledge about the legal system is often incomplete or like education or negotiation, and are sometimes influenced by inaccurate, however, so that, social, business, and professional those they are charged with regulating (Gunningham, 1987; norms have a greater impact on how parties bargain than do Hawkins, 1984; Scholz, 1991); and police make critical deci- their putative legal bargaining positions (Edelman et al., 1993; sions about what constitutes crime and how people are charged Ellickson, 1991; Galanter, 1986). Parties may be influenced less (Muir, 1979). The focus on the gap has also led to inquiries into by what would happen in court than by how their neighbors or the conditions under which law can bring about social change business partners or coworkers think they ought to behave. The (McCann, 1994; Rosenberg, 1991), the circumstances under preservation of relationships often trumps the assertion of legal which people obey law (Tyler, 1990), and the role of law in entitlements. As a result, social reform laws – especially to the social control. extent that they depend on victims to mobilize their rights – Although the idea of the gap has motivated some important infrequently succeed in effecting major social change (see Law inquiries into the workings of law in society, late-twentieth- as an Instrument of Social Change). Recent attention to the century scholarship found the idea of the gap to be flawed procedural facet of law moves beyond the notions of bargain- theoretically. Abel (1973) published a strong critique of the ing and discretion to frame the actions of legal actors more in idea that the gap is problematic, suggesting that there is no terms of power and moral agency than in terms of discretion reason to think that legal rules and legal behavior would be (Maynard-Moody and Musheno, 2012). consistent and that the preoccupation of social scientists with the gap distracts from the construction of a social theory of law. The Distributive Tilt of the Legal Order Feeley (1976) similarly argued that the characterization of the gap depends on an overly narrow conception of the formal law Although modern adjudication is infused with ideals of and inability to identify or measure the goals of that law. equality before the law, and the isolation of the dispute from

International Encyclopedia of the Social & Behavioral Sciences, Second Edition, 2015, 604–613 Author's personal copy Law: The Socio-Legal Perspective 607 the identity, connections, and resources of the parties, the ‘intersectionality’ calls attention to how antidiscrimination law sociolegal perspective on law emphasizes the myriad ways in presumes that discrimination occurs along only one dimension which these ideals are imperfectly realized when law is (e.g., race or sex or age), substantially disadvantaging plaintiffs considered in social context. Early studies focused on the role who suffer multiple disadvantages such as race and age. (Best of class in limiting access to justice (Carlin and Howard, 1965; et al., 2011; Crenshaw, 1991). These works call attention to Galanter, 1974; Handler et al., 1978). the meaning-making dimensions of law and how they interact Legal rights are not self-mobilizing and the process of with more structural forms of disadvantage. mobilization is a key site in which social disadvantage rears its head. To realize the benefits of social reform legislation such as Multiple Sites of Governance civil rights law or equal pay legislation, those whose rights are violated must mobilize the law. The sociolegal perspective Sociolegal analyses of the regulatory facet of law emphasize emphasizes the extent to which those who have less social clout that the state is only one source of law and legal norms. In most are also less likely to ‘name’ legal wrongs, to ‘blame’ a legally modern societies, the law presents itself as unitary, but none- responsible party, and to ‘claim’ in a way that may lead to legal theless consists of multiple systems of regulation that coexist redress (Bumiller, 1987, 1988; Felstiner et al., 1980; Marshall, and intertwine (see Legal Pluralism). Religious bodies, univer- 2005a). sities, private firms, trade groups, and associations of all kinds Those possessing wealth, power, and other resources can devise and broadcast norms, regulate their affairs, and impose hire better lawyers, invest in marshaling proofs and arguments, sanctions – often by means of proceedings that to varying use delay to their advantage, and adopt strategies that deflect extents mimic, if imperfectly, those of state law. Some legal unfavorable rules and reap the full advantage of law (Heinz systems openly yoke together several bodies of law from et al., 2005; see Injustice: Legal Aspects; Equality and different origins. For example, some ancient and modern Inequality: Legal Aspects). The advantages of stronger parties societies have had a system of ‘personal law’ in which the who are recurrent users of the legal system are even more incidence of particular rules depends on the religious or tribal pronounced in nonjudicial forums such as legislatures and identity of the parties. Many legal systems formally recognize administrative agencies. So legal regimes that accord a central alternative sets of rules. Hart (1961) pointed out that in addi- place to equality norms may at the same time enable “the tion to primary rules, the law contains various sets of secondary ‘haves’ [to] come out ahead” (Albiston, 1999; Edelman and rules about the recognition and application of its own rules and Suchman, 1999; Galanter, 1974; Hagan, 1990). the recognition and reinforcement of regulatory activity in In response to this paradox, legal systems have incorporated other institutions. various devices to overcome the disparity in legal resources (see Regulation is not a governmental monopoly; there are Justice, Access to; Class Actions, Legal; Public Interest Law: The multiple arenas of normative enterprise, innovation, and United States and Beyond). The achievements and deficiencies interpretation. The state’s law does not preside over a landscape of these devices have been a focus of law and society research. barren of regulation, but over a thick tangle of rivals and Although the presence of lawyers tempers the disparities in companions. Its effects depend on the way that it interacts with legal resources, it does not overcome them, for legal services are the various sorts of indigenous ordering that surround it; the typically purchased in markets where those with superior core official institutions themselves are the scene of persisting resources can attract more proficient practitioners. Apart from and pervasive local variation. These various departures from differences in quality and quantity, legal representation is unity and uniformity have been studied under the rubrics of infected with agency problems. Lawyers have goals and needs private government, indigenous law, semiautonomous social that do not align perfectly with those of their clients. It is not fields, and local legal culture. Pluralism is very much with us: simply that financial incentives may induce lawyers to do too The centralist view of a monolithic integrated legal order turns much or too little, but that even the lawyer who eschews out not to be a description of modern law, but part of its financial gain may be deflected by appetite for fame, honor, or ideology. ‘interesting’ work. For example, the low monetary stakes and Although law is the official terrain of dispute resolution, the repetitiveness of the legal needs of the poor run against the vast majority of disputes are handled outside of formal legal powerful pull of craft satisfactions and the aspiration to heroic institutions. Felstiner et al. (1980) introduced the dispute distinction. emergence perspective, and Miller and Sarat (1980) introduced Although early studies of the distributive tilt of law focused the notion of the ‘dispute pyramid.’ Both emphasize the on the ways in which legal rules and procedures benefited limited likelihood that legal violations will be perceived or the ‘haves,’ thus emphasizing the regulatory and procedural handled formally at all, and that only a small fraction of dimensions of law, more recent studies incorporate the disputes will evolve into formal trials. Morrill et al. (2010) constitutive perspective by focusing on ways in which cultural elaborate this model by presenting a multidimensional assumptions about race, gender, disability, national origin, and disputing model, suggesting that most disputes are handled other dimensions of social stratification are reified and often through extralegal processes such as talking to a friend, family exacerbated by the legal order (Albiston, 2010; Best et al., 2011; member, or clergy person; prayer; or contacting the media and Engel, 1991; Gómez, 2012; Marshall, 2005a; Obasogie, 2013). that others are handled through quasi-legal processes such as Many of these studies emphasize the ways in which law helps organizational grievance procedures. Edelman and Suchman to construct notions of racial or gender differences or the ways (1999) suggest that organizations are internalizing more in which law tends to disregard social processes that offer aspects of legal regulation over time. The continuance of de advantages to whites and males. For example, the notion of facto pluralism is fostered by various ideological currents,

International Encyclopedia of the Social & Behavioral Sciences, Second Edition, 2015, 604–613 Author's personal copy 608 Law: The Socio-Legal Perspective including movements to preserve and extend cultural diversity, and roles of lawyers, and the styles of dispute resolution across promote local control, and deemphasize adjudication in favor nations and social contexts. Even when constitutions and of ‘alternative dispute resolution.’ To emphasize the many statutes are imported directly from one country to another, channels for dispute resolution outside of the formal legal their interpretation and significance reflect persisting differ- system, Albiston et al. (2014) suggest that the dispute pyramid ences in social, political, and legal settings. metaphor is misleading and that it should be reframed as Adapted institutions may combine with local culture to a ‘dispute tree’ with many branches that represent various produce distinctively different patterns of use. For example, in types of legal, quasi-legal, and extralegal forms of dispute Thailand, as Engel and Engel (2010) show, disruptive changes resolution. The branches are differentially accessible, with in social arrangements and ideology cause adopted legal differing types of flowers (symbolic results) and fruit institutions to assume very different meanings and to be used – (substantive result). and left unused – in a way quite at variance with their original In sum, even though law regulates increasing areas of social embodiment. life, most social regulation goes on within various institutional Notwithstanding persisting differences, there has been an and relational settings; only a small and unrepresentative increase everywhere in the size of the legal plant. The number minority of disputes proceeds to a formal legal institution for of lawyers has increased. This is partly an artifact of expanding resolution. To a large but perhaps diminishing extent, when systems of higher education. But even discounting for this, the formal legal institutions devise rules to regulate conduct in number of lawyers has grown in relation to the population and institutions and relationships, they refine and restate norms in comparison to the size of the judiciary (Galanter, 2011). that already prevail in those settings (Bohannan, 1965); legal Increasingly, the upper strata of these lawyers are organized in norms in turn transform and feed rather than displace or large firms that have adopted the organizational form of the eradicate the regulatory activity indigenous to these settings. large ‘promotion to partnership’ firm originally developed in the United States in the early twentieth century (Galanter and Palay, 1994). The growth of such firms, which provide a wide More Recent Themes range of services to corporate entities (and some rich individ- uals), accelerated in the later part of the twentieth century. The The sociolegal perspective in more recent times has continued spread in recent decades of this style of law practice through to address the regulatory and procedural aspects of law but local adoption and by overseas branching has accentuated increasingly emphasizes the constitutive aspects of law, or the a striking asymmetry in the spread of legal capability. way in which law helps to construct both social consciousness Firms of increasingly large size, made up of highly proficient and social action. The themes identified in the previous section lawyers, provide a wide range of services to corporate and are still very salient to the sociolegal perspective, but more government entities, while individuals receive a much narrower recent scholarship tends to focus more on meaning making and range of services from lawyers practicing in smaller units, social construction, as well as the role of law in everyday life. frequently as sole practitioners (Heinz et al., 2005; Hadfield, Recent sociolegal approaches also moved from a primarily 2000). Services to corporate and governmental clients include American focus to a focus that is more comparative and preventive planning services as well as the more familiar attentive to law around the world. services provided after the occurrence of a problem or predic- ament (Hadfield, 2009). The global spread of legal institutions displays a pronounced The Globalization of Law tilt toward American models of large law firms, “broad The sociolegal perspective calls attention to the wide variety of empowerment of private actors to assert legal rights” (Keleman legal systems around the globe and also to the diffusion of legal and Sibbitt, 2004: 106), and a culture of adversarial legalism norms, materials, and devices from Western Europe, lately (Wiegand, 1996). “Economic liberalization . [has] undermined joined and surpassed by North America as a source of legal traditional, informal, opaque approaches to regulation and inspiration. Voluntary reception by settler societies, the impo- pressured governments to resort to more formal, transparent, sition of colonial rule, and importations by independent adversarial, American-style processes” (Kelemen and Sibbitt, regimes seeking a badge and instrument of advancement have 2004: 131). While other features of American-style legalism been followed by a worldwide spread of constitutionalism and spread rapidly, litigation lags and becomes a smaller province of continued influence of Western legal models to promote new the legal realm. forms of economic activity stimulated by increases in global trade (see Postcolonial Law; Law and Development). Diffusion The Legalization of Society of Western models was accelerated by the demise of commu- nism and the subsequent importation of Western experts to Law has become more pervasive, both as a set of social struc- write constitutions and oversee the democratization of tures and as a component of consciousness, and this process is formerly communist regimes. Comparative analyses of consti- likely to continue. The latter half of the twentieth century saw tutional borrowing, adaptation, and hybridization have a steady increase in the amount and complexity of regulation; become prominent in sociolegal scholarship (see Constitu- the frequency of litigation; the number, coordination, and tionalism, Comparative). productivity of lawyers; the number of legal actors and the Notwithstanding some convergence of formal legal resources they devote to legal activity; the amount of infor- doctrines and institutional structures, there remains broad mation about law and the velocity with which it circulates; and variation in the amount and character of litigation, the number a concomitant rise in consciousness of law and awareness of

International Encyclopedia of the Social & Behavioral Sciences, Second Edition, 2015, 604–613 Author's personal copy Law: The Socio-Legal Perspective 609 legal rights (Galanter, 1992; see Rights: Legal Aspects; (Edelman et al., 2001). Over time, organizational responses to Legalization). law tend to become widely accepted throughout organizational An increasingly global economy together with new fields (Edelman et al., 1999; Sutton et al., 1994). communications technologies have fueled the rise of legal The intersection of organizations and procedural law occurs activity, in areas such as intellectual property (see Property: frequently as organizations engage in litigation as a way of Legal Aspects; Intellectual Property: Law in Context). The influencing their markets and environments (Cheit and Gersen, number of lawyers increased dramatically in many countries 2000; Dunworth and Rogers, 1996; Priest and Klein, 1984), as and became markedly more diverse (in terms of gender, they hire in-house counsel who help to specify the meaning of ethnicity, and class origin) (Galanter, 2011; see Law Firms; ambiguous legislation in terms of corporate interests (Chayes Lawyers). Regulation has increasingly taken on the features of and Chayes, 1984; Nelson and Nielsen, 2000; Rosen, 2002), adjudication (Teubner, 1987). The role of courts has been as they internalize dispute resolution by creating internal enlarged by the spread of constitutionalism and judicial review, dispute resolution systems (Edelman and Cahill, 1998; together with an increase in multitier regulation deriving from Edelman et al., 1993; Edelman and Suchman, 1999; Talesh, federalism or from participation in international institutions. 2009), and by using private police forces who answer to Increasingly, courts are accepted as the final arbiters of many corporate rather than public concerns (Edelman and Suchman, public issues (Cappelletti, 1985; Constitutional Courts). 1999). The internalization of law makes organizations ever In many quarters, these changes have engendered a recoil more powerful legal actors in the public realm as well, and they against law and regulation, not least among elites who are best drive up the ante by dominating the dockets, playing for protected by the legal order. Concerns about excessive legali- favorable statutes and judicial interpretations of those statutes, zation, ‘juridification,’‘litigation explosion,’ and the domi- and employing strategies and experts that tend to increase the nance of lawyers have led to the advocacy of deregulation, cost and complexity of the legal game. delegalization, and embrace of alternatives to traditional liti- The intersection of organizations and the constitutive gation. The term ‘alternative dispute resolution,’ virtually realm of law occurs in several ways. First, organizations unheard of prior to 1970, has become part of the standard respond to ambiguity in their legal environments by creating policy lexicon. With the rise of forums such as mediation, a variety of ‘symbolic structures’ like antidiscrimination minitrials, and other private or court-annexed modes of policies that symbolize attention to legal ideals but do not dispute processing (see Mediation, Arbitration, and Alternative guarantee that organizational practices will further those Dispute Resolution (ADR)), the locus of some legal activity has ideals. Once in place, organizational structures become sites shifted away from adjudication and into nonpublic forums, in which legal rights are constructed and often transformed. but it remains doubtful that the tide of regulation has been Edelman et al. (2001) show how legal constructs tend to be reversed. infused with managerial meaning and values over time, or As discussed below, the prospect is that the legal system ‘managerialized.’ Albiston (2005) shows how ideas about has an ever-expanding agenda. But the process of remedying work and wages constrain employees’ use of rights created injustice or simply assuaging grievances consumes resources under the Family and Medical Leave Act. Similarly, Marshall and society gets an increment of justice instead of medicine or (2005b) shows how managerialized conceptions of law missiles. In addition to the costs of operating legal institutions prevent employees from mobilizing their civil rights gener- and costs borne by the participants in the legal process, the ally. Over time, compliance tends to be understood in terms use of law to address injustice imposes another kind of cost, as of organizations’ symbolic structures, irrespective of whether it accumulates into a thick layer of rules to be learned and those structures further legal ideals. Thus, organizational followed, permissions to be obtained, forms to be filled out, responses to law tend to become institutionalized or taken and records to be kept, adding to expense and burdening for granted not only among organizations and actors within activity. These costs of law are visible and palpable, while the organizations but also among litigants, lawyers, and ulti- benefits of legalization are less so: Victims may enjoy vindi- mately judges. This in turn produces ‘legal endogeneity’ or cation or honor or a heightened sense of self-worth – goods law that incorporates the ideas and perspectives of the social that are not subject to the same zero-sum distributional rules realms that it seeks to regulate (Edelman et al., 2011, 1999; as money. The legal process may generate public goods by see Organizations and the Law). crystallizing and broadcasting norms, preventing injustice by deterrence and education, and providing channels for inter- Social Movements and Law action and coordination (e.g., driving on the right or left, as the case may be). The more successful such patterning is, the Like organizations, social movements intersect with the regu- less visible it is. latory, procedural, and constitutive facets of law. Social movements often seek to influence regulatory law by, for example, seeking stricter environmental regulation or more The Intersection of Law and Organizations progressive stances on sexuality (Andersen, 2005). Social The intersection of law and organizations entails the regulatory, movements also consciously violate regulation when they procedural, and constitutive facets of law. The intersection of engage in civil disobedience to protest nuclear energy, animal law and regulatory law occurs as organizations respond to experimentation, or abortion provision. Social movements ambiguous legal regulation by creating internal rules that engage the procedural aspects of law when they litigate to on the one hand mimic formal legal rules but on the other advance a cause or seek injunctions to stop pollution (Sarat infuse the law with managerial prerogatives and perspectives and Scheingold, 2006).

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But social movements also help to shape the meaning of New and Developing Themes in the Sociolegal Perspective on law, engaging the constitutive element of law, when they Law advance new ‘frames’ or ways of understanding the world by The sociolegal perspective on law continues to elaborate the challenging well-accepted institutions (Benford and Snow, regulatory, procedural, and constituent facets of law. Many of 2000). Notions of ‘green construction,’‘reproductive justice,’ the new themes within this perspective are motivated by new and ‘gay marriage,’ for example, work their way into everyday societal challenges such as evolving technologies and techno- language and understanding in ways that ultimately influence logical possibilities (Berman, 2007; Elkin-Koren, 1996; Ross, law. Social movements may empower individuals to engage 2002); the rise of a ‘risk society’ (Baker and Simon, 2002; in ‘rights talk’ to negotiate social benefits (Engel and Munger, Beck, 1992; Ericson and Haggerty, 1997; Giddens, 1999); 2003; Minow, 1987; Williams, 1991). Legal activists may use global warming and the increasing number of natural disasters legal tactics as a tool for changing people’s perceptions about (Gunningham et al., 2003; Hartman and Squires, 2006); ethnic stigmatized groups (Kostiner, 2003; Silverstein, 1996). In his conflict and violence around the globe (Hagan and Rymond- analysis of the pay equity movement, for example, McCann Richmond, 2009; Ivkovic and Hagan, 2006); the transition (1994) shows how even failed attempts at legal change can from nations at war to the ‘war against terror’ (Hagan et al., serve to mobilize political action by shaping peoples 2008; Hirsch, 2008; Thacher, 2005); demographic understandings of social issues. movements through immigration and emigration, which raise Recent sociolegal scholarship on social movements shows new questions of citizenship (Boyle and Busse, 2006; Menjívar how law can provide a vocabulary for describing injustice and Abrego, 2012; Wiles, 2007); the rise of global capitalism (Albiston, 2005; Marshall, 2003), how law can mobilize social and corporate power (Carruthers and Halliday, 2006; Shamir, movement activity by shaping social identities (Diller, 2003; 2004); problems faced by new democracies seeking to craft Engel and Munger, 2003; Yashar, 2005), and how legal change constitutions (Elkins et al., 2009; Epstein et al., 2001; Ginsburg, may prompt countermobilization (Goldberg-Hiller, 2002; 2003); the increasing role of nongovernmental organizations Luker, 1984; Tushnet, 1987). Law also helps to shape activists’ and other nonstate entities in rule making and meaning understandings of what types of claims are valid and what making; and the interplay between these entities and states in types of solutions are just (Edelman and Cahill, 1998; Ferree, influencing international orders (Boyle and Preves, 2000; Davis 2003; Haney-López, 2000; Jenness, 1999). Recent approaches et al., 2010; Massoud, 2011; Trubek et al., 2000). also call attention to the ways in which organizations, social The sociolegal perspective increasingly recognizes the nexus movements, and law interact to shape understandings of social between a changing social world and changing notions of law issues, rights, and the potential for change (Edelman and justice. The scope of potential legal intervention expands et al., 2010). with these new challenges as well as with the growth of knowledge and the development of technology. The sociolegal perspective sees the realm of injustice as enlarged as events that Legal Consciousness, Rights Consciousness, and Legal were once seen as natural come to be seen as capable of being Culture controlled by human institutions (Shklar, 1990). Hurricanes are The constitutive facet of law emphasizes meaning making and misfortunes, but bungled relief efforts are injustices. The focus on gives more attention than did the earlier perspectives to legal the constitutive facet of law reveals that our consciousness of consciousness and legal culture, terms that are used to identify injustice increases as the potential for legal solutions increase. widely shared meanings either about law or that originate from law. Legal consciousness generally refers to how indi- viduals think about law, whereas legal culture refers to aggre- The Sociolegal Perspective in Sum gate understandings about law (Ewick and Silbey, 1998; Merry, 1990; Nelken, 1997; Sarat, 1990; Scheingold, 1974; This article necessarily gives short shrift to many topics within see Legal Culture and Legal Consciousness; Law and Everyday the sociolegal perspective on law. It is intended more to give Life). a feel for the breadth of the perspective and its emphasis on Studies of legal consciousness and legal culture have called understanding the interplay between law and its social attention to the ways in which legal ideas influence every day context. From its early critique of legal formalism and social life in ways that might not previously have been emphasis on the gap between ‘law on the books’ and ‘law in understood as legal. Particular attention has been paid to action,’ the sociolegal perspective has evolved into a multi- rights consciousness, or the extent to which people recognize disciplinary and interdisciplinary analysis of law at every level and mobilize their legal rights. Formal legal rights, for of society. Studies of regulation focus not just on impact but example, even when they are difficult to realize in court, may also on the social inequalities at play in the construction of allow disenfranchised citizens to make claims against more regulation, in its implementation, and in its interpretation. powerful entities (Minow, 1987; Williams, 1991). Legal Studies of procedure focus not just on law as a strategy but consciousness helps to explain when people mobilize the law also on the meaning making, moral judgments, and power and why they choose not to (Albiston, 2010; Bumiller, 1988; plays that pervade every legal move. Studies of the constitutive Marshall, 2005a; Nielsen, 2004), how people think about of power of law now incorporate attention to regulation and public welfare bureaucracies (Sarat, 1990), and when and how procedure and focus on broader issues of legal consciousness, people encounter the law and why and how they resist law rights consciousness, social resistance, and the role of law in (Ewick and Silbey, 1992). everyday life.

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