Law in Many Societies represents a welcome and well-priced addition to the very few sociologically-oriented collections of articles specifically aimed at teaching about law in different societies. It has been put together by Lawrence Friedman, of Stanford Law School, a leading writer on American legal history, as well as one of the founding fathers of modern day sociology of law, together with Rogelio Pérez Perdomo a leading Venezuelan and international scholar who collaborates with Friedman at Stanford, and Manuel Gómez, a talented Venezuelan scholar of the younger generation who studied at Stanford and teaches in Florida. As a valuable supplementary text to teachers of both undergraduate and graduate courses which have an interest in law beyond national boundaries this book not only fills a gap, it makes one aware that there was one. The purpose of this review however is not just to celebrate what will, hopefully, be the first edition of an essential sourcebook, but also to examine the strengths and limits of the kind of comparative sociology of law that it represents.
I. DISPLAYING LAW IN UNFAMILIAR CONTEXTS
This collection offers us all of 27 different papers that have been expertly filleted so as to come to little over 300 pages. After a short general introduction the book is then divided into six sections each of which begins with a preface of around three or four pages giving some sense of the larger literature to which the contributions are relevant. These deal, first, with ‘Professional actors in the legal system’ (discussing, for example, bureaucratic justice in Japan or the positive images of the Supreme Court in most of the Israeli media); followed by ‘Criminal justice’ (eg, explaining differences between prison severity in the USA and Europe, and plea bargaining in the UK). Next comes ‘Legal culture and legal structures’ (covering, eg, legal cultures of Europe and the transformation of constitutional discourse in Latin America) and ‘Litigation and dispute resolution’ (the role of street committees in South Africa and neighbourhood dispute settlement in Beijing). The final two sections deal with the related topics of ‘Law and development and legal reform’ (eg, what happens to reforms to legal education in Venezuela, or to reforms concerning custody disputes in Taiwan); and ‘Law and globalization’ (the role of law in outlawing immigrants working in Spain or the evolution of the European Court of Human Rights from a Cold War instrument). The introduction explains that its principal purpose is to produce a ‘Reader that is truly global and international’. In fact a large variety of countries are heard from. Of the 27 articles 8 deal with East Asia (though there is no discussion of law in India) and 6 deal with Latin America (perhaps in line with American interests and the two Latin American co-authors). Only 6 are about Europe and there is relatively little about the USA.
The first merit of any collection of published articles is the quality of the papers selected, and this Reader does not disappoint. Almost all were well worth reproducing and could provide interesting starting points for class discussion. But there is also some unevenness in the value of the sections. I found those on law and development and on law and globalization particularly interesting; they include real gems such as Eric Feldman on the Japanese tuna court and Kathryn Henley on debt collection in Russia. On the other hand the least successful is the one on criminal justice. It includes only three papers about what is such a potentially rich and varied area (that could for example have sampled papers discussing different ways of defining and handling sexual offences or of combating corruption). The prominence given to a 1970s article on plea bargaining in England and Wales is puzzling and even on the current hot topic of comparative punitiveness and prison numbers it would have been nice to see an example of one of the many contributions being made by non-USA authors. Even the title given to this section suggests a strange willingness to accept legal self-definitions rather than reconceptualize ‘law in society’ in broader sociological terms, as is done by the other sections. Obviously, too, there are other matters that could have been included if space had allowed; there is relatively little about sexual or racial identity, legal discourse, regulation or governance.
The fact that we have only extracts also inevitably means that something is lost—and it is usually the theoretical and methodological parts of a given article that are jettisoned in favour of the substantive findings. The book tells us that it ‘set out to cover a range of substantive areas of law, disciplinary approaches, structure and culture’ but students will not learn from this collection what lies behind such different approaches and methods.Footnote 1 The brief introductions included in the book do, however, make a number of general assertions about the necessary relationship between law and society which set out an instrumental/functionalist approach to ‘law in society’ that can be traced back to the USA jurisprudential school of Legal Realism.
They tell us that the legal system is not autonomous; it is what it is because of the way society shapes it. Culture and politics are more important than rules, codes, texts or words, in shaping what law does. Law gets its significance from its actual effects or ‘impact’. This requires studying the legal system ‘in operation’, examining for example the ‘living law of commerce’ or the way legal institutions may be affected by corruption. The legal system should be seen as a ‘moving functioning machine’. Although it is never ‘static’ it is not always well adapted to its context and is not ‘infinitely plastic, but society can learn to cope even with malfunctioning law. Legal orders relate to the society in which they are embedded (thus a feudal order has feudal-type law). As far as legal and social change is concerned the influence goes in both directions. But we need to use ‘external scholarship’ (from the standpoint of one of social sciences) in order to explain the how, when and why of the attitudes and behaviour that are responsible for such change. The current direction of legal change, with the advent of globalization, is towards greater convergence leading towards the type of ‘Erewhon’ that Friedman describes in the final extract. This displays inter alia increasing individualism and concern for human rights and the need to rely more on impersonal-style law closer to the American model.
II. COMPARATIVE SOCIOLOGY OF LAW AND COMPARATIVE LAW?
Of most interest for readers of this journal perhaps is the question of the relationship between (comparative) social scientific approaches to law and comparative law. Are they distinct disciplines or more like dialects of a common language? Should these areas of interest be brought together, for example under the rubric of ‘comparative legal studies’.Footnote 2 Roger Cotterrell has recently suggested that ‘comparative law and legal sociology are interdependent and, while each of these research enterprises has a wide variety of appropriate aims, their central, most general and most ambitious scientific projects—to understand law in its development and its variety as an aspect of social life—are identical’.Footnote 3 For him ‘legal sociology is more explicitly and systematically focused on exploring the nature of ‘the social’, as the broader setting of legal doctrine and institutions, than is comparative law. On the other hand, ‘Comparatists do not necessarily share sociology's ambitions to explain theoretically social change or social stability, or to characterise the nature of social life using highly abstract concepts such as ‘‘structure’’ or ‘‘system’’.’
As he points out, much comparative law writing in the past made heavy, even if not always sound, use of sociological concepts such as functional equivalence between legal institutions in one system as compared to another. More recently, the two approaches meet in problematic efforts to use the idea of ‘legal culture’. At the practical level both sociology of law and comparative law may be interested in describing the process of legal transplants and predicting when they are likely to be ‘successful’.Footnote 4 On the one hand, ‘(sociological) exploration may be very important in answering such comparatists’ questions as: how far is unification or harmonisation of law desirable or feasible? In relation to what kinds of regulation and what kinds of regulated communities?’ Conversely, ‘Comparative law's recording and interpretation of legal practices, institutions and ideas is essential to legal sociology. It provides perspectives on law that must be incorporated into those legal sociology develops.’
The editors of this collection are less convinced that this would be a relationship between equals. For them, just as sociology of law is superior to doctrinal legal scholarship so comparative sociology of law offers a similar challenge to traditional comparative legal scholarship. Particular objection is made to the (straw men?) categories of ‘families of law’. These offer no real guidance to similarities and differences in the ‘law in action’, so as to explain, for example, the very different roles played by the new constitutional courts in Spain and Colombia even though both countries belong to the civil law world. On this view because the two types of enquiry occupy the same terrain one must prevail. On the other hand the editors also suggest that sociology of law and comparative law are engaged in different kinds of enquiries and hence do not compete with each other. ‘Internal legal scholarship’, they argue, seeks the ‘right’ legal answer to a problem, but social science wants to understand how rules arise, why they persist, and what their effects are. (It seeks to explain for example why citizens in New Zealand are more likely to obey traffic rules than those in Italy.) We are asked to consider as an analogy the difference between theology and the sociology of religion. A theologian might want to decide whether a given behaviour by an Islamic bank breaches the Koranic prohibition on lending on interest. But the sociologist of religion neither asks or answers such questions. Conversely, theology does not itself have the resources to explain why more or less people go to church.
Arguably, however, the line to be drawn between external and internal viewpoints is not quite so hard and fast. The general introduction asks whether there can in fact be generalizations about how law and society interact that can apply to whole groups of societies so that, say, German and Mexican law are comparable even though they are different. It admits that each legal system is unique because its writ only applies within its borders, so comparative generalizations about law are different from those of science, medicine and maybe even from social policy. At most, they say, we can arrive at general statements about how legal systems or classes or groups of societies behave (we could for example distinguish types of political economy or social structure). Interpretative social science approaches rooted in the rival conception of the ‘cultural sciences’ are even less geared to ‘explanation’ as opposed to understanding. Trying to make sense of the behaviour of legal actors may require an approach that is therefore not that different from that used by legal scholars. Comparative lawyers in particular often try to understand the internal point of view of actors without necessarily being committed to the same systems they are part of (the analogy then would be to a theologian trying to understand someone else's religion).
The collection in fact includes authors engaged in the classic sociological task of explaining variation, and hence searching for nomothetic laws across different settings, together with others for whom the goal is more that of persuasive providing idiographic accounts of why particular outcomes events took place in given places. In the section on dispute resolution, for instance, one paper follows up on Macaulay's classical studies of the (non) use of contract law by businessmen so as to show that this is (broadly) also true in Denmark. But, Feldman in his piece on the tuna courts speaks of ‘tailored analysis rather than broad generalisation’. Most papers offer case studies that are mainly interested in telling the story of what goes on a given context—the failure of reforms in legal education in Venezuela, the reasons why people continue in Russia to use courts for debt collection even when they cannot collect on judgments, the way copyright law reform in China serves political goals rather than the protection of private rights, or the double standards applied to mothers’ rights in Taiwan.
Are the findings about these places specific to them? How many specific findings allow us to safely ground a generalization? The book's cover blurb confidently assures us that, ‘Drawing on a variety of methodological approaches, the selections allow a reader to evaluate whether there are general patterns that explain how legal systems work (or fail to work) and how these patterns relate to the structural and cultural facts of society.’ One general conclusion to be drawn from the studies is that political aims and local contingencies trump other factors in shaping legal outcomes. Friedman is the first to admit to the difficulties of cumulating findings so as to establish general laws, even if this remains the goal he believes social science should seek.Footnote 5
Comparative lawyers may also be interested to know what this collection has to say about uncovering similarities and differences. The editors tell us that ‘the novelty of this book is its systematic attention to both diversity and similarities among legal systems’. It also claims that we can ‘learn from diversity’. But in the absence of any extended discussion of why, what and how to compare, this begs a number of questions. What does ‘systematic’ mean here? What is it that we are meant to be learning? Because the choice of which countries to feature here depends primarily on the excellence of the articles chosen, putting such randomly chosen case studies together risks producing no more than ‘comparison by juxtaposition’ (which is unacceptable as a basis for comparison both for comparative social science and comparative law). It certainly provides a sourcebook that adds to the data pool of how law operates in different countries. But can it do more than this?
The editors tell us that they are trying to bring out both similarities and difficulties. On the one hand, the volume does provide ample evidence of diversity. The papers included in this collection treat national legal systems as the relevant unit of investigation for comparison. We hear less about the social scientists who have focused on given institutors, or types of law or legal mentalities. But there may often be more in common between those who practise family law in different countries than between those who practise family law and commercial law in the same jurisdiction. Such a focus would also make for easier collaboration with comparative lawyers. There are papers that explicitly argue against widespread assumptions of modernity (or globalization) bringing about convergence, for example Jim Whitman's paper on the continuing differences between punishment practices in the USA and Europe, or David Engel's demonstration of the ways in which modernity in the shape of much more motor traffic has not led to greater use of tort law in Chiangmai, Thailand's second city. The introductions, however, tend to embrace a teleological approach by which national legal systems are bound to show increasing similarities as a result of the homogenizing effects of the social and technological changes of modernity.Footnote 6 With the advent of globalization it does become more difficult to assume that what happens within a country is only to be explained by other internal political economic social and cultural factors. Larger international changes and pressures are ever more important. From this point of view (as Friedman says in commenting on Engel) the question becomes how to explain cases of resistance to such common developments.
III. CONCLUSIONS
Those acquainted with Friedman's work will recognize in the articles he and his colleagues have chosen for this Reader many of the trademark qualities of his own writings: clear arguments, open-mindedness, a wide search for relevant empirical variables and, not least, a surefootedness in using the tools of the lawyer, the historian or the sociologist without confusing the conceptual and methodological protocols of one with the other. The comparative lawyer can learn from this how social scientists search for variation, take data seriously and puzzle out what it signifies. The paper by Kitty Calavita, for example, cuts through the rhetoric of Spanish parliamentary discussions of laws seeking to regulate the influx of immigrants. It shows us how law transforms outsiders into outlaws whilst at the same time operating forms of oppressive inclusion into the workplace which helps keep wages generally lower and hasten the transition towards a neo-Fordist economy.
The final paper by Friedman shows him at his sparkling best. He tells us that each time the State extends individual rights it privatizes its powers. He points out in passing that so-called lex mercatoria is neither really law nor very different from the type of dispute processing that businesses use at home. The piece justifies its title—Erewhon—by declaring that the metaphor of the global village has had its vogue and the global order is nothing like a village. ‘It is nowhere and everywhere.’ In working out the implications of globalization for the nation state he admits that law is in some ways the least globalized area of social life with much practice still rooted in local legal habits. More, we increasingly witness what he calls (borrowing from linguistics) a situation of Diglossia, one that involves the use of one style of law for international purposes and another in more domestic settings. On the other hand, English as a universal language gives an advantage to the spread of the common law, as does the growth of a cross- national impersonal style of business which requires a type of law geared to transactions between (relative) strangers. He criticizes the implication of opening up markets to world trade whilst setting limits to immigration.
Yet, as suggested at the outset, with all its merits, this Reader tends to showcase only one (albeit mainstream) version of sociology of law, the sort influenced by political science and sociological approaches to explanation with a preference for middle-range theorizing, aimed at illuminating empirical variability. It is essentially ‘theory light’; articles do not canvass Marxist, Foucauldian or postmodernist positions, nor give a look into Teubner on systems theory or Legrand on legal mentalities. There is no interest in literary approaches to law. Comparative lawyers may also be worried by the neglect of problems of interpretation—at a series of levels. We learn little about the difficulties in cross-cultural comparisons of translating ‘false friend’ concepts like ‘discretion’ or ‘corruption’. Navigating between the Scylla of ethnocentrism and the Charybdis of relativism is treated as just a matter of keeping a firm hand on the tiller. Overbold—or bald—claims are made about the conduct of legal actors in other societies. Trying to summarize anti-corruption prosecutions by judges in Italy, as the editors do, as a ‘moralisation crusade’ takes us into the heart of a hard fought local battle over how far Italian prosecutors are—or should be—proactive, or merely respond to information reported to them.
Linked to this is a certain lack of reflexivity about the cultural assumptions being relied upon concerning what law is and should be. In a recent paper David Engel argues that Friedman's conception of legal culture is linked to the aspiration to keep politics and economics subservient to law, as well as the value of civil society playing its proper role as the source of the legal.Footnote 7 Instead of accepting Friedman's own view of internal and external legal culture as neutral analytical categories Engel offers a cultural reading of them. ‘Two aspects of Friedman's imagery,’ he tells us, ‘are particularly noteworthy. First, law is spatialized. It has an inside and an outside, and legal culture forms a kind of membrane between the two spaces. Second, the internal space is dead, desiccated, and inert. It is a place of bones without flesh and words without life. By contrast, the external space is alive, vital, and active.’ Rather than offering a value-free ‘scientific’ approach to legal culture, this concern with law having an ‘inside’ and an ‘outside’ is a reflection of the ‘project’ of modernity, aimed inter alia at securing liberal legalism and secularism. Maintaining the metaphorical separation of inside and outside, Engel argues, is central to the project of modernity ‘because the theory of modern law ‘‘presupposes that no one group in the society has a privileged access to religion and moral truth’’, and therefore the proper role of law is to establish a secular and neutral ‘‘process for conflict resolution’’ rather than to endorse one set of cultural practices or religious beliefs over another’.
Arguably, this type of comparative sociology could learn from comparative law to be more reflexive about its conceptions of legal culture. It is certainly important to see that this constant concern about demonstrating the (relative) autonomy of law from politics speaks as much to cultural obsessions as to explanatory concerns. In seeking to learn about law in unfamiliar contexts we should not forget that law can be both object and subject. It is not enough just to describe law in places outside the USA if we simply assume the relevance of an American (instrumental-functional) way of looking at things.Footnote 8 Thus it may not only be because the literature sampled here is necessarily in English that ways of thinking about law from quite different cultural traditions are sidelined. If we knew more about different national traditions of doing sociology of law we would also appreciate how far sociology of law is itself part of intellectual and even social movements internal to (certain) legal systems.
To all this it could of course be replied that Friedman is deliberately only speaking about the effects of ‘modernity’ on law and intends his ideas about legal culture to be applicable only to modern societies.Footnote 9 But, arguably, even in modernity there are there distinctive patterns of legal culture, such as those characterizing American versus European Continental systems.Footnote 10 Even within Europe, we could distinguish between Scandinavian systems where it is possible to theorize ‘law as fact’—and treat ‘steering mechanisms’ as law, as compared to Southern Europe where law is so often revered ‘in the breach’ as something necessarily counterfactual. Likewise, the variation in concern about the need to close the ‘gap’ between ‘law in books’ and ‘law in action’ can itself be treated as a cultural variable to be understood (rather than simply a neutral sociological starting point). Is the instrumental/functional approach the right starting point for grasping law in India—or even in Italy? The sort of comparative sociology of law sampled in this collection offers a larger range of vistas and approaches than the most traditional type of comparative law focused on differences in European private law. But it also shows, whatever Friedman thinks is bound to happen, that few people currently live in Erewhon.
