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Invitation to Law & Society

The University of Chicago Press

Contents

Acknowledgments.................................................................ixChapter 1. Introduction........................................................1Chapter 2. Types of Society, Types of Law......................................10Chapter 3. Law in the Everyday, Everywhere.....................................30Chapter 4. The Color of Law....................................................51Chapter 5. Many Laws, Many Orders..............................................74Chapter 6. The Talk versus the Walk of Law.....................................94Chapter 7. Law and Social Justice: Plus Ça Change ........................116Chapter 8. Conclusion..........................................................148References......................................................................155Index...........................................................................167

Chapter One

Everyone has some idea what lawyers do. And most people have at least heard of criminologists. But who knows what "law and society" is? A lawyer friend of mine, a really smart guy, asks me regularly, "What exactly do you people do?" Once when I was at the annual meeting of the Law and Society Association, my taxi driver was making the usual idle conversation and inquired what I was in town for. I told him I was attending the Law and Society Association's annual meeting. His interest suddenly aroused, he turned to face me and asked with some urgency, "I've been wondering, when is the best time to plant a lawn?"

I write this as an invitation to a field that should be a household word but obviously isn't. Peter Berger's (1963) Invitation to Sociology is one of my favorite books, and I have shamelessly copycatted it for my title and for the concept of this book. Like Berger, I want to offer an open invitation to those who do not know this territory, by mapping out its main boundary lines and contours and explaining some of its local customs and ways of thinking. This mapping and explaining is more difficult in law and society than in some other academic territories, because its boundaries are not well marked and because it encourages immigration, drawing in people from many other realms. The population includes sociologists, historians, political scientists, anthropologists, psychologists, economists, lawyers, and criminologists, among others. Like the pluralistic legal cultures we sometimes study, our diversity is both a challenge and enriching.

First, a disclaimer. This is not meant to be a comprehensive overview or textbook introduction to law and society. I am bound to antagonize some of my colleagues in this selective sketch of the field, as I speak in the language I know best—sociology—and inevitably favor some approaches and just as inevitably neglect others. In addition to mostly "speaking" sociology, my primary language is English. This means that besides slighting much that is of interest in political science, economics, and other fields, I include here only a tiny fraction of the excellent works written in languages other than English. I cannot possibly do justice to the whole rich terrain of our field in this small volume, and I do not intend it to be an overview of law and society's many theories and methodologies. Instead, I hope that this book's limitation will be its strength, as an accessible and concise presentation of a way of thinking about law. It is meant for undergraduate students and their professors, but it is also written for my lawyer friend who can't figure us out, for my taxi driver, and even for an occasional colleague, because it is always entertaining to see others attempt to describe what we do.

In the pages that follow, I will try to construct a picture of (some of) our ways of thinking by presenting a few of law and society's overarching themes, arranged roughly as chapters. There is some slippage and overlap among the chapters, and the divisions should not be taken too seriously. What I am after here is a composite picture, a gestalt of a way of thinking, not a comprehensive inventory. I am treating this as a conversation—albeit a one-sided one—and will keep you, the reader, in my mind's eye at all times. Partly in the interests of accessibility and a free-flowing conversation, I have sacrificed theoretical inclusiveness and instead provide many concrete examples and anecdotes from everyday life.

Peter Berger (1963, 1) started his Invitation to Sociology by lamenting that there are plenty of jokes about psychologists but none about sociologists—not because there is nothing funny about them but because sociology is not part of the "popular imagination." Well, law and society faces a double difficulty. When people don't confuse us with experts in the care and maintenance of grass, they are likely to think we are practicing lawyers, which is—judging from the number of lawyer jokes in circulation—the world's funniest profession. Complicating matters, some of us are in fact lawyers, but not the funny kind.

The law and society mentality is broader than the specific themes I introduce here. And some of these themes are mutually contradictory and represent conflicting visions of the field. But, just as all creatures are greater than the sum of their parts, there is a law and society perspective that transcends its sometimes self-contradictory themes. One way to get at this perspective is to contrast it to how people ordinarily think about law. I do not want to oversimplify here because people have many different views of law. As we will see later, the same people think of law differently according to whether they are getting a parking ticket, suing a neighbor, negotiating a divorce, or being sworn in as a witness to a crime. But most people tend to hold up some idealized version of law as the general principle, and individual experiences that deviate from that version are thought of as, well, deviations. Law in the abstract somehow manages to remain above the fray, while concrete, everyday experiences with law—either our own or those of others we might hear about—are local perversions chalked up to human fallibilities and foibles. This view of law was brought home to me powerfully the other day on my commute to work. A bumper sticker on a pickup truck read, "Obey gravity. It's the law." I cannot be sure, but I think the point was to underscore the inevitability and black-and-white nature of law, in a sarcastic jab at moral relativists. Like gravity, law is Law.

Even when we are cynical about the law, this cynicism seems not to tarnish the abstract ideal of "The Real Law"—the magisterial, unperverted, gravity-like sort. Consider jury service. If you have ever served in a jury pool or on a jury, you might have been aghast at the shortcomings of some of your peers who might, in your view, be less than intellectually equipped to wrestle with the complex issues being presented (and they no doubt were at the same time scrutinizing you). But, if you are like me, it is hard not to feel a certain awe for the majesty of the process and the aura it projects. The Law—with a capital L—in this idealized version resides in a realm beyond the failings of its human participants and survives all manner of contaminating experiences.

Law and...