Reza Banakar

Reflections on the Methodological Issues of the Sociology of Law

The general focus of this paper is on the methodological limitations of the sociology of law in capturing the law’s ‘truth’ as its practitioners experience it. The paper starts with arguing that the law does not have a monolithic ‘truth’. Some aspects of its ‘truth’ are produced through its own recursively sealed operations, while its other aspects are generated with reference to empirically grounded knowledge, which potentially links the discourses of law and sociology. Notwithstanding this discursive kinship, the sociological studies of the law’s internal processes cause difficulties even to those scholars who are versed in substantive law. To expound this problem, the sociology of law is compared with medical sociology and attention is drawn to the way sociology copes with the ‘truth’ of medicine. The final part of the paper initiates a quest for possible solutions to the methodological problems of the sociology of law by placing them in the context of the ongoing conflicts and competitions of the field of science

The Politics of Legal Cultures

Sociology and anthropology of law were partly developed from inception to empirically address the complexity of the relationship between law and society. Many of their insights into how law is socially constructed through the interaction between cultural, religious, economic and political factors remain incompatible with the aims and concerns of mainstream legal scholarship. Most social scientific approaches to the study of legal institutions and legal behaviour have revealed the plurality of forms of law, demonstrating that law can simultaneously manifest itself in different forms and at different levels of social reality. In contrast, various schools of legal positivism have conceptually separated law from morality, legality from justice, and facts from norms, in order to create a normative basis for justifying the unity and autonomy of law. This paper starts by exploring the tension between Western and Islamic legal cultures of immigrant communities living in the west. It then goes on to argue that the use of such antinomies as facts and norms, or law and morality, which are employed by legal theory in order to conceptually organise itself, diverts our attention away from the fact that law, whether it is defined as the command of the sovereign or the inner order of associations, is not divided into two opposing or contradictory poles. Instead, it consists of countless fragments which are not necessarily related in a formal rational manner.

Power, Culture and Method in Comparative Law

This review essay draws on a recently edited handbook by Esin Orucu and David Nelken to reflect on the methodological concerns and challenges of comparative law and socio-legal research. It argues that the contextualisation of laws should be regarded as the indispensable methodological characteristic of all comparative studies of law that aspire to transcend the understanding of law as a body of rules and doctrine. It further argues that although the cultural perspective facilitates contextualisation of the law, a cultural understanding is neither a precondition for undertaking comparative legal research nor necessarily the correct approach under all circumstances; for certain aspects of law and legal behaviour need not be conceptualised in cultural terms. The essay concludes by proposing that the combination of top-down and bottom-up approaches could provide a meta-methodological framework within which specific comparative techniques can be employed. Such a framework will enable comparatists and socio-legal researchers to account for how law interacts with, and simultaneously manifests itself at, the macro, micro and the intermediary meso levels of society over time.

In Search of Heimat: A Note on Franz Kafka's Concept of Law

Abstract Are Franz Kafka’s representations of law and legality figments of his imagination, or do they go beyond his obsessive probing of his neurosis to reflect issues that also engaged the social and legal theorists of his time? Does Kafka’s conception of law offer anything new in respect to law, justice, and bureaucracy that was not explored by his contemporaries or by later legal scholars? This paper uses Kafka’s office writings as a starting point for reexamining the images of law, bureaucracy, hierarchy, and authority in his fiction—images that are traditionally treated as metaphors for things other than law. The paper will argue that the legal images in Kafka’s fiction are worthy of examination, not only because of their bewildering, enigmatic, bizarre, profane, and alienating effects or because of the deeper theological or existential meanings they suggest, but also as exemplifications of a particular concept of law and legality that operates paradoxically as an integral part of the human condition under modernity. To explore this point, the paper places Kafka’s conception of law in the context of his overall writing, which the paper presents as a series of representations of the modern search for a lost Heimat. Kafka’s writing, the paper argues, takes us beyond the instrumental understanding of law advanced by various schools of legal positivism and allows us to grasp law as a form of experience.

Normativity in Legal Sociology: Methodological Reflections on Law and Regulation in Late Modernity

The field of socio-legal research has encountered three fundamental challenges over the last three decades – it has been criticized for paying insufficient attention to legal doctrine, for failing to develop a sound theoretical foundation and for not keeping pace with the effects of the increasing globalization and internationalization of law, state and society. This book examines these three challenges from a methodological standpoint. It addresses the first two by demonstrating that legal sociology has much to say about justice as a kind of social experience and has always engaged theoretically with forms of normativity, albeit on its own empirical terms rather than on legal theory’s analytical terms. The book then explores the third challenge, a result of the changing nature of society, by highlighting the move from the industrial relations of early modernity to the post-industrial conditions of late modernity, an age dominated by information technology. It poses the question whether socio-legal research has sufficiently reassessed its own theoretical premises regarding the relationship between law, state and society, so as to grasp the new social and cultural forms of organization specific to the twenty-first century’s global societies. (Less)

Having One’s Cake and Eating It: The Paradox of Contextualisation in Socio-Legal Research

In Law in Modern Society, Denis Galligan argues that adopting a social scientific perspective, which describes and analyses the law in extra-legal terms, can easily entail losing sight of the law as a distinct social formation. To avoid this pitfall, socio-legal research should contextualise those features of the legal system which are relevant to the actions of citizens and officials of the law. This essay argues that since the “relevant” features described by Galligan are, ultimately, related to legal rules, his approach amounts to a top-down method of contextualising the impact of the law on society and as such loses sight of law’s fluidity and societal embeddedness. Using Galligan’s methodology as its backdrop, this essay sketches the contours of three ideal typical approaches to the contextualisation of law. The first approach examines how social institutions absorb law within their existing networks of rules and relations; the second reverses law’s method of dislodging actions from their socio-historical context; and the third uncovers the socio-cultural and historical embeddedness of the legal system. This paper concludes by arguing that these three approaches reverse the de-contextualising effects of modern Western law in different ways and degrees. Scholars who employ the second and the third approaches often do so as part of their search for alternative forms of law and legality. What is identified by Galligan as losing sight of the distinctiveness of the law should, in their case, be explored in light of the ongoing struggle for law, rather than as the failure of social sciences to account for the specificity of positive law.

The Life of the Law in the Islamic Republic of Iran

Beyond the esoteric deliberations of Islamic jurists and their exegesis of criminal and private law doctrines, Iranian law lives a life of its own. It is a life of routine practices of judges, court clerks, lawyers and clients, each of whom is striving to turn the law to their own advantage. It is also a life of contested legality, a relentless struggle over the right to determine the law in a juridical field which is infused with strife and hostility. These conflicts are reproduced daily as two competing conceptions of law, and their corresponding perceptions of legality clash in pursuit of justice. The Iranian judiciary’s concept of law, its reconstruction of Islamic jurisprudence and methods of dispensing justice, which on the surface are reminiscent of Max Weber’s “qādi-justice,” collide with the legal profession’s formal rational understanding thereof. However, Iranian judges are not Weberian qādis, and the legal profession is not a homogenous group of attorneys driven by a collective commitment to the rule of law. To understand their conflict, we need to explore the mundane workings of the legal system in the context of the transformation of Iranian society and the unresolved disputes over the direction of its modernity.

On the Paradox of Contextualisation

We continue our discussions on the relationship between law and social sciences in this chapter by focusing more closely on socio-legal methodology. We use Denis Galligan’s main argument in Law in Modern Society as our starting point. According to Galligan (Law in modern society. Oxford: Oxford University Press, 2006), adopting a social scientific perspective which describes and analyses the law in extra-legal terms can easily entail losing sight of the law as a distinct social formation. To avoid this pitfall, socio-legal research should contextualise those features of the legal system which are relevant to the actions of citizens and officials of the law. This chapter argues that since the ‘relevant’ features described by Galligan are related ultimately to legal rules, his approach amounts to a top-down method of contextualising the impact of law on society, and as such he loses sight of law’s fluidity and societal embeddedness. Using Galligan’s methodology as its backdrop, this chapter sketches the contours of three ideal typical approaches to the contextualisation of law. The first approach examines how social institutions absorb law within their existing networks of rules and relations, the second reverses law’s method of dislodging actions from their socio-historical context and the third uncovers the socio-cultural and historical embeddedness of the legal system. This chapter concludes by arguing that these three approaches reverse the de-contextualising effects of modern Western law in different ways and to certain degrees. Scholars who employ the second and third approaches often do so as part of their search for alternative forms of law and legality. What is identified by Galligan as losing sight of the distinctiveness of the law should, in their case, be explored in light of the ongoing struggle for law, rather than as the failure of social sciences to account for the specificity of positive law.

Introduction: Emerging Legal Uncertainty

This introductory chapter begins by outlining the themes which run through the pages of this book before it explains how they are related to each other and why they lead us towards a deeper understanding of socio-legal theory and research. The overarching question guiding this inquiry is how legal sociology can produce an empirically valid and theoretically sound insight into the development of forms of law and legality in our contemporary global society. To answer this question we need to conceptualise law and legality, on the one hand, and elaborate on the properties of our contemporary society, on the other. The former involves engaging with debates on law and comparing various understandings of legality—among other things asking if the law is a rational system of norms, a field of practice or a form of experience. The latter entails comparing social conditions of a contemporary global society with earlier forms of social organisation.

The Changing Horizons of Law and Regulation: From an Industrial to a Post-Industrial, Digital Society

This chapter sketches two parallel, albeit sociologically interrelated, historical transformations. First, it briefly describes the move from industrialisation, when economies were nationally-based and dependent on manufacturing, to post-industrialisation, in which economies are shaped by the production and consumption of services and information. Second, it depicts the move from “welfare capitalism,” which sought social integration through public policies administered by the state, to “market capitalism,” whereby market forces are given free rein to shape society. As national markets expand and become part of global marketplaces, they also become increasingly volatile and risk-prone, thereby impacting on how society is regulated and organised. This chapter will argue that these two transformations give rise to new forms of law and regulation which require a new understanding of law in society. Although we have moved from a form of society dominated by industrial relations and manufacturing to a post-industrial information society shaped by digital networks and immaterial labour, a large part of socio-legal research remains geared toward a concept of society and social action that was developed during the heyday of industrialisation. The aim of this chapter is to highlight the necessity of developing a concept of law and an understanding of regulation which meet the challenges of the digital age.