Original Article, A socio-legal quest: from jurisprudence to sociology of law and back again, published in the Journal of Law and Society in January 2023, Vol. 50, Issue 1, in print.
How should socio-legal studies view jurisprudence, the legal theory of jurists? Jurisprudence’s task is to promote law as a socially valuable idea taking various forms in different times and places. As a value-oriented and context-focused enterprise, it should draw on the social sciences to make its inquiries relevant in a changing socio-legal world. Correspondingly, socio-legal research needs theory to link its empirical inquiries to an overall sense of what can be hoped for from law as a social phenomenon. In different ways, jurisprudence and socio-legal inquiry should help to theorize the nature of legal practice and legal experience. They are necessarily distinct enterprises with contrasting orientations, but they can aid each other in important ways.
1. INTRODUCTION: JURISPRUDENCE AND SOCIOLOGY OF LAW
For any researcher active over many years, it is tempting to look back over the intellectual route travelled and seek some unifying thread in it, to ask what the ultimate intellectual driver of research activity has been. More pointedly, one might ask what dissatisfactions, or what gaps in the panorama of academic research, the work has been trying in some ways to address. However, a personal retrospect is not usually of much value unless it can indicate some useful ongoing agenda – a trajectory that remains to be pursued. So, though the title of this article might imply a retrospect, its main aim is to explore some still unresolved dissatisfactions that have driven a part of my research, to try to analyse them and suggest a way forward.
A way forward for what? I have been equally committed for five decades to two research fields that are usually seen as clearly distinct. The aim in this article is to explore how they might be productively related.
One of these fields is sociology of law – and the social theoretical aspects of socio-legal studies, a research enterprise that is now often thought of as a broader intellectual successor of sociology of law. Soon after becoming a legal academic, I read the then existing literature of sociology of law intensively and later, when the opportunity arose, I studied sociology and social theory formally as a postgraduate student while teaching law in the same university. I have always thought of sociology of law as a vital, independent enterprise of social science focused on the systematic, empirical study of law as a social phenomenon located in time and place, varying in its nature and its practical effects with its historical contexts.
Socio-legal studies now is usually seen as a wider reaching-out – beyond the intellectual traditions of sociology of law that are significantly rooted in sociology as a discipline – into many knowledge fields in the social and human sciences and the humanities that can illuminate the nature of law. However, in most understandings, socio-legal studies retains a focus on systematic empirical research on legal institutions, practices, and experiences, treating law as a field or aspect of social life.
The other research field to which I have been committed is jurisprudence. I lectured on it from my first year as an academic, at the beginning of the 1970s. At one time, I saw it as a kind of liberal study for law students, or the ‘lawyer’s extraversion’, as Julius Stone called it1– a means of broadening the legal mind. It seemed important in legal education but perhaps not a subject for specialized research. It was a vast bricolage of bits and pieces of theoretical knowledge related to law that could open students’ minds and allow lawyers to escape occasionally from the micro-study of legal doctrine.
William Twining, after all, once called lawyers’ doctrinal analysis, in contrast to social scientists’ approaches, the ‘method of detail’2 and saw that method as its strength. Typically, lawyers’ doctrinal analyses need to be sharply focused, with legal issues precisely identified and distinguished, established legal rules collated and compared for relevance, and broad moral or political controversies avoided or simplified. Such an approach is usually assumed to give the best possibilities for publicly defensible legal decisions.
If so, jurisprudence appears as a kind of temporary liberation from such limitations – a licence to roam freely, to look outwards to much wider themes and contexts that doctrinal analysis often avoids. However, this view of jurisprudence is problematic. Methods of doctrinal legal analysis evolve and there are many ways to broaden perspectives on law. Is the literature of jurisprudence really the only potential resource for opening wide the legal imagination?
Later, abandoning the liberal ‘lawyer’s extraversion’ view, I came to believe that jurisprudence has a unique place in the intellectual world. It is a theoretical resource devoted to just one end: the support of lawyers’ normative practice, primarily by clarifying and organizing certain essential but ever-shifting values entailed in that practice. It is not an academic discipline. It is a diverse, often disordered, unsystematic body of knowledge gathered magpie-like from many sources, but that can offer itself to theoretically sensitive lawyers – they might be called jurists3 – to help them to do their job in the specific historical conditions in which they work. This view of jurisprudence is further explained below.
It seems important to distinguish jurisprudence clearly from sociology of law. The intellectual traditions of sociology of law present it as a science seeking, as far as may be possible, objective knowledge of social reality. The task of sociology of law is to explain the social phenomena of law, using the empirical methods and theoretical resources of social science. Crucially, sociology of law need have no commitment to any legal values, nor to the well-being of law as a socially valuable idea. By contrast, if jurisprudence is to have any genuine intellectual justification, it must serve that juristic commitment to the well-being of law as an idea. It must explore in specific ways how law can be socially valuable.4 That should not be seen as a complacent view. A juristic investigation of the conditions under which law can be a socially valuable idea would be a critical study ready to expose and condemn the wrongs, inadequacies, and ignorance of much existing law.
Jurisprudence, on such a view, is not only a theorization of the technicalities of legal doctrine, the formal structures of law, or the typical kinds of legal argument, valuable though such inquiries are. It is also about identifying and promoting ultimate values that people in general hope for from law. The German scholar Gustav Radbruch identified two of these ultimate values as justice and security.5 Of course, they mean very different things to different people and in different societies. However, it is hard to find people who do not recognize these values as important and relevant to law. And jurists do not need elaborate, rigorous philosophical systems to be built around these values, because the values gain variable, shifting meaning and significance in practice – in the varied, ever-changing conditions in which they are invoked.
The task is to understand empirically the variety of popular aspirations associated with these values, in order to balance and negotiate the values in the diverse contexts of legal practice. In that way, jurisprudence should aim to go beyond the method of detail, to suggest broader perspectives on law in its historical time and place; it should not postulate essential truths about law, but workable practical guidance for legal development, and an overall perspective on the shape of law as it exists in the society or cultural environment in which the jurist works.
Law usually changes in piecemeal manner, not as a succession of systems of thought. The jurist must explore the different kinds of meanings that citizens give to values of justice and security. The jurist’s craft (at its highest level, it is an art) is to find practical paths through these value commitments of citizens, understanding their various aspirations. If law often frustrates these value commitments, a task of the jurist is to balance, reconcile, and compromise – doing so not in some timeless way but for the present, here and now, in the legal system that the jurist is obligated to serve. So, jurisprudence is not a science; it is a resource to serve a juristic craft. Seen in this way, jurisprudence is neither just another rather peripheral law school subject, nor a special branch of philosophy. On the contrary, it is a theoretical perspective on all legal practice that should give legal development a sense of direction and provide an overview of what the pursuit of the method of detail in legal scholarship can or should add up to.
Historically, sociology of law, which has existed for more than a century,6 and the wealth of empirical socio-legal research that has flourished especially since the 1960s, have contributed immensely to deepening understandings of law as a social phenomenon. Contextualism as a law school movement spoke of broadening the study of law from within, but much of the most important insight has come from without; from the great classics of social theory – Karl Marx, Max Weber, Émile Durkheim, Eugen Ehrlich, and Georges Gurvitch – and more recently Jürgen Habermas, Michel Foucault, Pierre Bourdieu, and Niklas Luhmann. They and others have opened theoretical windows to reveal law in new ways. What links my interests in jurisprudence and sociology of law is a quest to find theory to give perspective on and direction to legal studies, and an understanding of legal development as an aspect of social development.
The range of social scientific insight on law is now so vast, and the body of literature in socio-legal studies and sociology of law so huge, that it is hard to pick out what seems most important for the future. What, among all of this research production, is really pointing new ways forwards, to new ways of thinking about law theoretically? Others may not agree with my choices, but perhaps certain trends or orientations (not specific theories, but directions of research interest encompassing a wide variety of theories and approaches) do stand out as markers for the future. Three of these, all well represented in current social theory, will be noted in what follows, with brief comments on why they may be especially important.
2. LEGAL ORIENTATIONS IN SOCIAL THEORY
The first of these trends or orientations is a radical rethinking of the modern relationship between law and state. This rethinking began from the inception of modern sociology of law with Ehrlich’s idea of ‘living law’:7 authoritative social norms, distinct from state law, but recognized by citizens as authoritative – perhaps often more authoritative in everyday life than the law of the state. Weber, too, saw law as not confined to state law, and the merest glance at history confirms that the development of law and of the state do not run in exact parallel.8 Gurvitch identified a vast range of types of law arising from different kinds of sociality or social groupings, only some of which are tied to the state.9 Leon Petrażycki also saw law as radically plural, in no way confined to what the state does.10 For a long time, such ideas of non-state law were entirely marginalized except in legal anthropology. The modern state monopolized law creation, interpretation, and enforcement, and jurists almost universally accepted this view.
However, things are no longer so straightforward. Symptoms of change, too numerous and widespread to explore here, include the growth of transnational law, new kinds and jurisdictions of international law, new theories of law as discourse (rather than as state imperatives) and of societal constitutionalism, increased questioning of the concept of sovereignty, concerns about the foundations of state authority and democracy, and the instabilities of federalism in some nations. Gurvitch – the brilliant, much-neglected pioneer of socio-legal theory – was predicting by the mid-twentieth century that social norm systems, previously marginalized by state authority, would ‘take their revenge’ on the state’s monopoly of law11 and establish their own legal structures. The state is hardly going to disappear but, maybe, as Ehrlich asserted,12 the true centre of gravity of legal development lies elsewhere than in the overburdened institutions of the state; today, powerful socio-economic forces constrain the legal actions of many states.13
The effect on jurisprudence should be to force it to look for sources of authority in the social, more specifically in cultural conditions, not just in the political structures of public life. Perhaps lawyers must see how the ‘political’ ultimately bases itself on the ‘cultural’. The legal institutions with which jurists work are not self-sustaining, nor is their authority automatically recognized by citizens. They are sustained ultimately by cultural expectations or collective beliefs and convictions, as Durkheim’s follower, the French jurist Emmanuel Lévy, argued a century ago.14
A second trend or orientation is concerned less with relations of state and law than with increased sensitivity to the differentiation of the social – a growing recognition of the complexity and diversity of the human populations that make up society. Again, this is in some sense an old theme, originating even before Marx emphasized the division of capitalist and all previous societies into classes. If Marxist theory has lacked enduring juristic impact in Western nations, it is probably because a Marxist constituency could never secure a critical mass of positions of real institutional influence in key centres of juristic and academic power.15 The constituencies of the poor and dispossessed that Marx championed have rarely come anywhere near to having an impact on such centres of power.16
But other movements have been able to force a new ‘jurisprudence of difference’17 into being, as representatives of their constituencies have gained entry to academia and legal practice. A few years ago, these movements could have been treated as parallel yet distinct from each other: feminism, critical race theory, gay rights campaigning, disability rights advocacy, organized religious constituencies, and so on. But now, all of these must be seen as diverse, linked symptoms of what has become an ever-widening political recognition of the vast complexity (perhaps fragmentation) of the social, the almost limitless overlapping and intersecting of numerous forms of difference and diversity, and the proliferation of sectional or group interests, often misunderstood or unseen by those outside the relevant constituencies.
In a transitional stage, various constituencies – many officially legally linked in the United Kingdom (UK) within the scope of the Equality Act 2010, but often acting with a degree of isolation from each other – sought ‘equality’. Now, they are morphing into a vast mosaic of difference – not just of interests, but of life experience and identity – with so many gradations that precise conceptualization in legal form becomes increasingly difficult. The concept of intersectionality has been a waystation in this development. However, it asserts overlapping complexities of difference without, perhaps, indicating clear, generally acceptable means of negotiating and relating these.18 And the familiar risk of ‘essentialism’19 makes almost all categorizations of difference ultimately problematic.
The Black Lives Matter movement has provided a sharp, recent focus on pernicious political, social, and economic differentiations. But it is easily reduced in popular thought to a simple ‘two-class conception’ (Black and white),20 perhaps comparable with Marx’s two-class characterization of capitalism (bourgeoisie and proletariat). It may not reflect well the mosaic of population in a society such as that of present-day multicultural Britain, in which very many varieties of ethnic and racial relations exist, and identities (such as of mixed race or ethnicity) can be more complex and diverse than any two-class model can capture. Similarly, as debate rages, such as in a trans rights context, around meanings of sex and gender, what once seemed a relatively clear focus of legal action around a ‘two-class model’ of male and female identities and understandings is now very much less straightforward, so that the place of both sex and gender in legal classification and personal identity is becoming a matter for radical debate.21
Theory, however difficult to develop, has a role to stabilize the incoherence of debates and point a way forward, to indicate a direction of travel. Post-colonial theory is now forcing an opening-up of established ideas in social theory.22 So, Black Lives Matter seems to be evolving from a useful slogan towards a deep awareness of underlying, long-term legacies of colonialism and slavery that have set the terms historically for racist assumptions that are very hard to eradicate.23 These legacies pollute current social relations and underlie, consciously or unconsciously, many kinds of social differentiations that embody fears, vulnerabilities, perceptions of others, and repositories of collective guilt and historical entitlement.
A third trend or orientation may be still the least well developed in socio-legal thought, yet no less fundamental than the first two. Alongside relations between state and law, and among the ever more complex components of society, are evolving relations between society and nature. Environmental law is a lively and well-developed field both in municipal and international law. But is it still to some extent a specialism set aside, comparable with poverty law or welfare law? Not something central to plotting the current and future directions of legal and social thought but a respected, if sometimes marginalized, legal subfield?24
The most important point to make here is that, no less than the other two trends or orientations of legal and social change discussed above, this one is similarly in very rapid flux, and its future evolution is no less unclear. If jurisprudence is to provide juristic guidance about – a conceptual mapping of – the overall directions of legal change, informed by fundamental juristic values, it must surely learn from the most recent movements in social theory25 and from the indications that those movements can give about the future.
Environmental law has been mainly concerned with patching up the damage that humanity is doing to nature or trying to save nature from human predations. In general, it is about the control of human interaction with nature, as if humans were distinct from and confronting the natural world. The rights of individuals, corporations, and groups in relation to nature and the limits of those rights are key.26 And nature must be protected for the survival of humanity. But recent innovations in legal and social thought displace some of this thinking.
When can rivers, lakes, and mountains have rights?27 What could happen to legal thought if humans were understood not as in confrontation or competition with nature but as part of nature for the purposes of law? What could happen to the whole idea of human rights, which are understood as rights of individuals and groups (and even sometimes corporations), and not as interests of ‘humanity’ seen as part of nature? How can nature defend itself legally with any real effect against human interests, individual or collective? In the era of the Anthropocene, what may be needed is a profound cultural change in values and self-understandings, so that the centre of gravity of law shifts even beyond what Ehrlich envisaged – not just to society (rather than state) but to nature with humanity as part of it; humanity being seen as not necessarily supremely dominant alongside nature’s other myriad components.28
This would surely be a profound change of perspective, already signalled in social theoretical and ecological literature on rights of nature. It represents a way of thinking that departs from deep-rooted juristic assumptions about the individualistic and human-centred foundations of modern Western legal cultures – foundations on which most edifices of contemporary jurisprudence and legal philosophy are built.29
3. JURISPRUDENCE: REALITY AND POTENTIAL
The remarks above are broad and generalized, but the aim here is to set them in sharp contrast to law’s usual method of detail – its productive and necessary micro-analyses of normative issues. Theory should present a large picture, a bird’s-eye view of legal challenges, a possible trajectory of change, a broad perspective to set against narrower ones. Perhaps this is what is always sought from social theory as applied to law.
But now it is necessary to return to jurisprudence – jurisprudence as it is usually understood as a law school subject in the Anglophone common law world and as it is written about today primarily by scholars who identify themselves as legal philosophers and see their intellectual credentials in that role as given by the protocols and criteria of intellectual interest that they associate with philosophy. Anglophone legal theorists often seem to identify in this way.
If this is a fair characterization, one can feel the deepest possible disappointment at the contrast between what is talked about in the legal philosophical literature and seen as interesting and important, and what might (especially in the light of the themes touched on earlier) be thought to be pressing – even matters of crisis – by theoretically minded socio-legal scholars and social theorists engaged in cutting-edge research on the changing situation of states, the radical differentiation of societies, and the enfolding implications of ecological catastrophe.
Even from within the ranks of legal philosophers, Ronald Dworkin (who always saw himself as a philosopher but was ready, especially in his journalistic writings, explicitly to don the hat of the legally committed jurist) condemned the aridity and irrelevance of much contemporary positivist legal philosophy. Dworkin wrote of its tiny, isolated constituency, its lack of relation to and interest in other areas of knowledge (notably social sciences), its lack of self-awareness, and the fact that it was widely ignored by legal scholars outside its specific tribe.30
Here is the ongoing dissatisfaction mentioned at the beginning of this article. I hoped for a kind of developing enlightenment from mainstream jurisprudence that would supplement the method of detail with a broader engagement with crucial values and wider issues around law. But I began teaching jurisprudence at a time when H. L. A. Hart’s Concept of Lawwas becoming established as a leading legal philosophical text, eventually seen by some as perhaps the most important such work in the twentieth century.31
In a recent book, I have discussed in detail what I think happened to jurisprudence and its prospects for enlightenment in the Anglophone world because of the acceptance and influence of Hart’s legal theoretical approach developed by his followers from the mid-twentieth century onwards.32 Here, it seems important to do no more than point to a striking contrast with the ambitions of the kinds of theory discussed earlier in this article.
As is very widely known, Hart thought that the idea of social rules seen from internal and external perspectives, and the relations of primary and secondary rules, could properly be seen as the key to jurisprudence. But he inspired an approach to legal theory that was
- originally shaped by the aims and parameters of ordinary language philosophy, ‘where conceptual issues are said to arise in isolation from substantive ones’;33
- often hastily dismissive of sociology and social science as useful sources of theoretical knowledge about law;34
- self-satisfied in a range of conceptualizations that, while claiming to be empirically based, interpreted the world only from the comfort of the philosopher’s chair;35 and
- shaped by criteria of philosophical interest that marginalized large areas of practical and theoretical political and moral enquiry about law and society.36
Hart himself addressed substantive moral and political issues in some of his writings outside the intellectual parameters of The Concept of Law. So did others whom he deeply influenced. But the effect of the agenda inspired by that book was a tendency to displace normative inquiries about the practical realization of ultimate values as a matter of general juristic responsibility, situating them some way away from the legal philosopher’s central analytical tasks. The same was even more true of inquiries dependent on systematic empirical social research, which could readily be dismissed as impractical37 or of limited philosophical interest.
The Concept of Law was published more than half a century ago. As is well known, many of its theoretical positions have been repeatedly and fundamentally criticized almost from the moment of its first publication.38 However, it has become an Anglophone legal philosophical locus classicus. It is not appropriate here to discuss the book’s philosophical value, but its long-term effect on the vision and scope of Anglophone jurisprudence has, I think, been mainly negative.
It adopted a briskly dismissive approach to most previous juristic theory so that constructive engagement with earlier, perhaps richer juristic thought was often discouraged. It brought philosophical rigour into the mainly parochial terrain of twentieth-century English jurisprudence, but it did so by setting up a limited agenda of conceptual inquiry in place of a broad project of aiding jurists’ practical commitment to the well-being of law as an idea. Later Anglophone legal philosophers have greatly extended this agenda to explore issues in moral and political philosophy, but the divide between philosophy and social science seems to have been largely maintained, so that jurisprudence (insofar as treated as legal philosophy) and socio-legal studies (insofar as committed to social science) confront each other as often unrelated fields of research endeavour.
However, it is not philosophical ambition but practical juristic commitment that validates jurisprudence as an intellectual activity. There is no space here to elaborate further on this necessary commitment of jurisprudence, seen as a legal rather than a specifically philosophical enterprise.39 But something more can be said about the pre-Hart literature of jurisprudence and why jurisprudence, seen in something other than its current legal philosophical garb, should interest socio-legal scholars.
Before Hart’s mid-twentieth-century intellectual revolution, which drove legal philosophy firmly away from sociological inquiries, international jurisprudence showed many important signs of reaching out towards the social sciences – especially towards social theory. In general, the best, most ambitious juristic theory showed an openness to many diverse intellectual fields.
Mention was made earlier of Gurvitch, who was a philosopher, a sociologist, and a jurist.40And in early twentieth-century Continental juristic thought (rarely considered by Hart or by others among his followers), legal scholars such as Léon Duguit explored links between the state and solidarity, raising important issues about the limits of sovereignty,41 and the jurist Maurice Hauriou produced a sociological theory of institutions which conceptualized societal pluralism and explored the social locations of legal authority.42 In late nineteenth-century German legal culture, Rudolf von Jhering explored the significance of legal ideas of rights and interests in building the structures of social life.43 Later, Rudolf Stammler developed a neo-Kantian theory of justice and wrote about legal and social ideas in a sufficiently interesting way to attract the critical interest of Weber.44 Many other cases of often forgotten Continental works of social insight45 and broad juristic imagination could be mentioned beyond this tiny sample.
The aim here is not to argue that such old theories should be harnessed to address today’s issues. It is only to point out a huge intellectual ambition in the most notable juristic theories (sometimes called legal philosophy) of the past century, which has now been largely lost in mainstream jurisprudence. A paler, thinner, empirically barren legal philosophy has abolished, in this jurisprudence, a wide curiosity about the changing socio-legal world which allowed jurists to draw not just on various kinds of philosophy, but on many diverse fields of inquiry.
It is important to return to jurisprudence as a project because of its responsibility to provide theoretical direction for the jurist’s endeavour to give moral meaning to law – that is, to explore its development and practice in ways that can realize ultimate values of the idea of law. Sociology of law and socio-legal studies do not need any such commitment, but they are certainly not free of value relevance, and many socio-legal studies scholars are much concerned with law’s well-being.
Earlier, reference was made to two of Radbruch’s ultimate legal values, justice and security, which he suggests that jurists must interpret, balance, and foster as values that citizens recognize. However, he also postulates a third ultimate value. Radbruch calls it law’s ‘fitness of purpose’ (Zweckmassigkeit), the cultural purpose of the time and place.46
It can be argued that this third value can be interpreted in contemporary complex societies as that of solidarity. Solidarity is not necessarily a value to which citizens consciously adhere. But perhaps jurists should. They seek to present law as a potential rational unity, an overall regulatory structure that can provide a normative framework for all social life in the society that they serve. Their work implies an aspiration for legal coherence and doctrinal integration, and (because law must reflect actual social relations) it implies a corresponding societal integration – even if this integration is empirically improbable.47 Solidarity is the value that symbolizes this ideal integration, this improbable social unity. The juristic effort to symbolize it persuasively, to assume the possibility of societal cohesion, is part of the experienced well-being of the idea of law. For the jurist, it is part of the effort to give direction and meaning to law as a socially valuable idea.
4. CONCLUSION: A RE-ENVISAGED QUEST
Where does this leave us? It suggests that jurisprudence is not a legally marginal philosophical pursuit. On the contrary, it is an essential theoretical resource to give direction to law as an idea, and to provide resources for critique of law when law fails to put the values of justice, security, and solidarity at the centre of its intellectual practice. However, current mainstream jurisprudence seems largely blind to the most important transformations of law and society that social theory is revealing, so it does not have the resources to protect and promote these values with a deep awareness of the contexts to which they must relate. It rejects or ignores the need for empirical evidence (such as socio-legal studies provides) of citizens’ understandings of security and justice, and of the conditions for effectively promoting and balancing these values. Yet, Radbruch saw this balancing and promotion as a very difficult but necessary and never-ending juristic task. Mainstream jurisprudence similarly remains unconcerned with studying empirically the socio-economic conditions under which solidarity becomes a meaningful value and under which possibilities for realizing it can exist.
Therefore, jurisprudence should distance itself from the philosophical agendas of ungrounded conceptual speculation that Hart’s Concept of Law encouraged from the mid-twentieth century. It should take the path not followed – indeed, the path almost closed off by Hart and his legal philosophical followers. It should, for example, retrieve the previously marginalized empirical insights of legal realism, historical jurisprudence, and sociological jurisprudence and consider what can remain useful in them, extended to guide empirical studies to serve juristic needs.48
Conversely, socio-legal studies scholars should not reject jurisprudence as an irrelevant philosophical pursuit unconnected with empirical socio-legal research. They can help to rehabilitate it from its current backwater in contemporary legal philosophy. They might use it to broaden their sense of law as an intellectual and normative structure that informs professional practices and popular experience. This would involve renewed interest in empirically and theoretically exploring the nature of law as a practical idea that evolves through time and takes diverse forms.
Socio-legal studies has the capacity to build theoretically, from analysis of its rich resources of empirical research on legal phenomena, an overall sense of the changing nature of law in specific kinds of societies and cultural conditions. In that way, it can potentially contribute to a wide perspective on legal development in general, going beyond the findings of individual studies and specific legal subject areas.49 The movements of contemporary thought about (1) the changing position of law in relation to the state, (2) the differentiation and integration of the social, and (3) the evolving relations of humanity and nature provide some among many resources for rethinking law as an idea.
There is no space here to sketch the shape of a jurisprudence transformed by such resources. But each of its ultimate values would certainly appear in a new light. For example, no one can doubt that the value of security, which Radbruch associated with certainty and predictability in law, takes on new meaning when the prospect of ecological catastrophe upends all assumptions about what a secure environment for individuals under the protection of law requires.
For Radbruch, while justice is the most fundamental value component of the idea of law, security may be the essential precondition for addressing it, at least when chaos and anarchy threaten all stable life. He writes, thinking of the most basic elements of legal certainty: ‘It is more important that the strife of legal views be ended than that it be determined justly and expediently.’50 If this thinking is extended beyond Radbruch’s own legal formulations to an idea of basic security in social life, it seems clear that all presuppositions about conditions for stable social relations are potentially undermined by extreme ecological change.
Radbruch’s second value, justice, emphasizes fair treatment in legal procedures as between those subject to or calling upon them. Law has always had to categorize individuals and circumstances to establish practical criteria of justice. It has had to prescribe equal treatment within those categories. Perhaps the differentiation of the social now breaks down many of the familiar categories that law has used. It creates new ones, and new divisions within existing legal categories. It might even put the idea of such categories in issue. Justice must be a measure of balance. The question becomes: what is to be balanced?
How must jurisprudence work with the value of justice that relies on categorization? This is a central task for the jurist, but it cannot even be envisaged in practice without empirical and theoretical understanding not only of the differentiation of the social but of the ways in which that differentiation is being ever more widely recognized and experienced. The conceptualization of justice as a practical component in the idea of law depends on empirical and theoretical social inquiry.
The third ultimate juristic value, which I have taken to be solidarity, raises many more issues. As noted earlier, the idea of law as a unified normative structure, existing under the umbrella of the unified state, is being challenged in certain ways. An example is the proliferation of international, transnational, and intranational sources of regulation (and aspirations for regulation), often in uncertain relationships of relative authority.51 What consequence do such developments – pointing to a possible fragmentation of regulatory authority – have for the image of a unified normative order that jurisprudence has often attached to law?
An aspiration for social solidarity is an aspiration to counter the moral fragmentation of the social, to build a cohesive society. How is that to be pursued if the idea of a unifying legal order – the symbol of a coherent overall regulation of society – seems problematic? This question for jurisprudence can be addressed only by drawing fully on socio-legal inquiries about changing patterns and kinds of law and about the changing foundations of regulatory authority.
There is no reason to suppose that an increasing recognition of the differentiation of the social must lead to a corresponding increasing fragmentation of society. Durkheim argued that social difference can promote greater social unity through interdependence.52 But surely that interdependence needs to be recognized, celebrated, extended, and deepened. Important in that context may be legal and political structures, and distributions of authority, that can unify rather than divide, and can foster communication across populations rather than hamper it.
The huge blind spot, the topic that remains too little discussed, for much of both jurisprudence and socio-legal research today is the condition of extreme and ever-growing disparities of wealth and income in many advanced capitalist societies. It is surely these vast disparities that make the idea of solidarity often seem so remote from contemporary experience, and for many people unintelligible as a practical ideal. But the ultimate value of solidarity remains; the conditions that challenge it should not.
Social research on the circumstances of economic elites, and on those who experience economic distress, poverty, and destitution, is substantial but, as noted earlier, the constituencies of the poor and dispossessed have rarely come near to the centres of power in law and the academy. So, research directly examining the legal supports of increasing disparities of wealth and income hardly seems central in mainstream empirical socio-legal studies,53 and the concerns of the poor are usually reflected in special legal fields (poverty law, welfare law, access to justice, and so on) rather than in general movements in contemporary Anglophone legal theory.54 This partial attention gap, which may symbolize a wider inattention in legal theory to conditions needed to promote solidarity effectively as a value concern for law, remains to be recognized and filled in jurisprudence.
The linking of socio-legal resources with juristic responsibilities to critically defend the well-being of the idea of law presents an urgent agenda for an alliance of jurisprudence and social science. It would be one that recognizes the very different aims and character of these research fields but sees them as capable of being pragmatically joined in a crucial socio-legal quest – a quest to plot and assess law’s future based on an understanding of its present and its past.