Three voices of socio-legal studies

Israel Law Review

Volumn 35, Issue 2-3, 2001, Pages 175-204

  Feeley, Malcolm M ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84993210815     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700012176     Document Type: Article

References (73)

1. For a sustained analysis of Durkheim's work, see Roger Cotterrell, Emile Durkheim: Law in a Moral Domain (Edinburgh, Edinburgh Univ. Press, 1999).
2. Sir Henry Maine, Ancient Law: Its Connection With the Early History of Society and its Relation to Modern Ideas (London, Dent Reprint [1861], 1977) may be the most conspicuous such study. Written after a career of judicial service in India, it employed an evolutionary scheme to compare then contemporary Hindu law in India with feudal and modern law in England.
3. See, e.g., Fredrick Pollock and F.W. Maitland, History of English Law before the Time of Edward I (1895, 1968 ed.), 2 vols.
4. This is most clearly seen in law and economics. Although I include this rapidly growing field in Socio-legal studies, many others would not. See, e.g., Richard Posner, “The Sociology of the Sociology of Law: A View from Economics” (1995) 2 European J. Law & Econ. 265–284
5. Bryant Garth and Joyce Sterling, “From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State” (1998) 32 Law & Society Rev. 409–472. I will return to this issue in the text below.
6. Rudolph von Jhering, The Struggle for Law, 2nd ed. (Chicago, Calaghan, [1872], 1915) 1.
7. Roscoe Pound, “The Need for a Sociological Jurisprudence” (1907) 19 The Green Bag 607–615
8. “Law in Books and Law in Action” (1910) 44 American L. Rev. 12–36
9. Social Control through Law (New Haven, Yale Univ. Press, 1942).
10. For one account of some of the developments in legal realism, see Laura Kalman, Legal Realism at Yale: 1927–1960 (Chapel Hill, Univ. of North Carolina Press, 1986).
11. The phrase was coined earlier. See, e.g., Roscoe Pound, “Mechanical Jurisprudence” (1908) 8 Columbia L. Rev. 605–623.
12. The most famous “fact skeptic” is Jerome Frank, Courts on Trial (Princeton, Princeton Univ. Press, 1949).
13. Several well-known anthologies on law and social science tend to focus, though not exclusively, on legal effectiveness studies. See Lawrence Friedman and Stewart Macaulay, Law and the Behavioral Sciences (Indianapolis, Bobbs-Merrill, 1969)
14. Wallace Loh, Law and Social Science (New York, Russell Sage Foundation, 1983)
15. Joel Grossman and Mary Grossman, Law and Change in Modern America (Pacific Palisades, CA, Goodyear Publishing, 1971)
16. John Monahan and Laurens Walker, Social Science in Law (New York, Foundation Press, 1989).
17. For a self-reflective retrospective on the law and development movement by two participants, see David Trubek, “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the Unites States” (1974) Wisconsin L. Rev. 1062–1102.
18. For a brief history of the law and society movement, see Garth and Sterling, Wisconsin L. Rev.
19. Even this claim was initially contentious. The questions, “Who is the audience?” and “What is the purpose?” of the new enterprise were present and debated at the outset. Volume one, number one of the Law and Society Review featured a vigorous exchange between law professor Karl Auerbach and sociologist Jerome Skolnick, who staked out quite different positions. Skolnick argued for a distinct social science of “legality,” while Auerbach held forth for what I have termed the “handmaiden” approach. The agenda is to be set by law, social science is to gather and assess the facts. See Karl Auerbach, “Legal Tasks for the Sociologist” (1966) 1 Law & Society Rev. 91–104
20. Jerome Skolnick, “Social Research on Legality: A Reply to Auerbach” (1966) 1 Law & Society Rev. 105–110.
21. A manifesto a few years later that rejected all policy and normative concerns was expanded upon in Donald Black, “The Epistemology of Pure Sociology” (1995) 20 Law & Social Inquiry 829–870.
22. See, e.g., Friedman and Macaulay, Law & Social Inquiry
23. Grossman and Grossman, Law & Social Inquiry
24. Loh, Law & Social Inquiry
25. Monahan and Walker, Law & Social Inquiry.
26. For an extended discussion of the problems with “gap studies,” see Malcolm M. Feeley, “Law and Social Science: A Critique and Notes on an Expanded View” (1976) 10 Law & Society Rev. 497–525.
27. See also David Nelken, “The ‘Gap Problem’ in the Sociology of Law: A Theoretical Review” (1981) 1 Windsor Yrbk. of Access to Justice 35–61.
28. The model for this in organizational analysis was established by Philip Selznick in The TVA and the Grassroots (Berkeley, Univ. of California Press, 1949).
29. In the law and society field, perhaps the most well-known such study is Abraham Blumberg “The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession” (1967) 1 Law & Society Rev., 15–40.
30. For an example of “gap research,” see Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago, Univ. of Chicago Press, 1991)
31. for an extended discussion and exchange regarding this matter, see Malcolm M. Feeley, “Fly Paper and Metaphors” (1992) 17 Law & Social Inquiry 745
32. Gerald Rosenberg, “Hollow Hopes and Other Aspirations: A Reply to Feeley and McConn,” Law & Social Inquiry, at 761–778.
33. See, e.g., Alan Freeman, “Legitimating Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” (1978) 62 Minn. L. Rev. 1049–1119
34. Kristin Bumiller, The Civil Rights Society: The Social Construction of Victims (Baltimore, Johns Hopkins Univ. Press, 1988).
35. Patricia Ewick and Susan Silbey, The Common Place of Law: Stories from Everyday Life (Chicago, Univ. of Chicago Press, 1999).
36. See Austin Sarat and Susan Silbey, “The Pull of the Policy Audience” (1988) 10 Law & Policy 97–166, at 97.
37. See, e.g., the articles collected in Austin Sarat and Thomas, eds., Law in Every Day Life (Ann Arbor, Univ. of Michigan Press 1995)
38. Ewick and Silbey, Law in Every Day Life.
39. See, e.g., Bumiller, Law in Every Day Life.
40. See Joel Handler, “Postmodernism, Protest and the New Social Movements” (1992) 26 Law & Society Rev. 697–732.
41. See Owen Fiss, “Against Settlement” (1984) 93 Yale Law Journal 1073–1090.
42. See also Judith Resnik, “Managerial Judges” (1982) 96 Harv. L. Rev. 376–448.
43. Grant Gilmore, The Death of Contract (New Haven, Yale Univ. Press, 1982).
44. Henry Steiner, Moral Argument and Social Vision in the Court: A Study of Tort Accident Law (Madison, Univ. of Wisconsin Press, 1987) 8.
45. Malcolm M. Feeley and Jonathan Simon, “Actuarial Justice: The Emerging New Criminal Law” in David Nelken, ed., The Futures of Criminology (London, Sage, 1994) 173.
46. Michael Moore, Placing Blame: A General Theory of the Criminal Law (Oxford, Clarendon Press, 1997).
47. Michel Foucault, Discipline and Punish: The Birth of Prison (New York, Vintage Books, 1979).
48. W.T. Murphy, The Oldest Social Science? Configurations of Law and Modernity (New York, Oxford Univ. Press, 1997).
49. Presentation by David Driesen, Syracuse University Faculty of Law, at a Roundtable “Toward a World Rule of Law - Contributions from Natural Law Thinking” Annual Meeting of the Law and Society Association, Vancouver, British Columbia, 30 May 2002.
50. Ronald Coase, “The Problem of Social Cost” (1960) 3 J. Law & Econ. 1–44.
51. E.B. Pashukanis, Law and Marxism: A General Theory, B. Einhord, trans- what is the correct citation for translation?. (London, Ink Links, 1978).
52. Antonio Gramsci, Selections from the Prison Notebooks. Q. Hare and G. Nowell-Smith, eds. and trans., (New York, International Publishers, 1971.)
53. Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy and Political Change (New Haven, Yale Univ. Press, 1974).
54. Rosenberg, The Politics of Rights: Lawyers, Public Policy and Political Change, at 107–156.
55. Michael McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago, Univ. of Chicago Press, 1994) 48–91.
56. Lauren Edelman, “Legal Environments and Organizational Governance: The Expansion of Due Process in the workplace” (1990) 95 American J. of Sociology, 1401–1440.
57. See also Bumiller, American J. of Sociology.
58. His classical statement is in Lon Fuller, “The Forms and Limits of Adjudication” (1978) 92 Harvard L. Rev. 353–409. Mimeographed versions of this manuscript were widely circulated from the mid-1950s, and it was only published posthumously.
59. See also his The Morality of Law (New Haven, Yale Univ. Press, 1969).
60. Donald Black, “Review of Law, Society and Industrial Justice” (1974) 78 American J. of Sociology, 709–714.
61. Philip Selznick, Law, Society and Industrial Justice (New York, Russell Sage Foundation, 1969)
62. Philippe Nonet and Philip Selznick, Law and Society in Transition (New York, Harper Row, 1977).
63. For an assessment of Selznick's work on legal ordering, see Robert A. Kagan, Martin Krygier, and Kenneth Winston, eds., Legality and Community: On the Intellectual Legacy of Philip Selznick (Lanham, MD, Rowman & Littlefield, 2001).
64. Jurgens Habermas, Legitimation Crisis (Boston, Beacon Press, 1970)
65. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Studies in Contemporary German Social Thought) (Cambridge, The MIT Press, 1996).
66. N. Luhmann, A Sociological Theory of Law (Longon, Routledge and Kegan Paul, 1985)
67. “The Unity of the Legal System” in Gunther Teubner, ed., Autopoietic Law: A New Approach to Law and Society (Berlin, de Gruyter, 1988) 12–35.
68. Gunther Teubner, “Evolution of Autopoietic Law” in G. Teubner, ed., Autopoietic Law: A New Approach to Law and Society, at 217–241.
69. Robert Cover, “Violence and the Word” (1986) 95 Yale Law Journal (1986), 1601–1629.
70. See, e.g., Austin Sarat, “Every Good Discipline Deserves a Canon, or How Can We Fight if We Are Not Armed?” Law & Society Newsletter, November 1998, 1–3.
71. Paul Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago, Univ. of Chicago Press, 1999).
72. The Cultural Study of Law: Reconstructing Legal Scholarship, at 27.
73. The Cultural Study of Law: Reconstructing Legal Scholarship, at 1.