Sociological Theories of Law

Classical Sociology

The sociological classics contributed to the theoretical study of law by offering systematic accounts of the changing role of law in the rapidly changing societies at the dawn of the twentieth century. In France, Durkheim contemplated the role of law in securing integration in a society that is highly industrialized and that is culturally marked by a high degree of individualism. Law was to Durkheim the measurable indicator of a society's morality, which the sociologist analyzes in terms of its causes and functions. Specifically, Durkheim posited a theory of legal change from repressive law to restitutive law. Repressive law reflected the religious traditions of relatively small-scale mechanical societies, where any infraction of law, however small, was punished severely. By contrast, the large organic societies of modern times allow for greater individual variation in thought and action, leading law to seek to secure order as well as diversity and allow for restitution and reintegration, should legal norms be broken. Alongside this transformation of law, Durkheim theorized, professional associations would have to take up some of the integrative functions that once were secured by traditional systems of law.

The contributions to law of the German sociologist Weber remain among the most developed and systematic in sociology to this day. Even more clearly than Durkheim, Weber positioned the sociology of law in relation to other intellectual perspectives of law. Specifically, Weber defined the sociology of law as the external study of the empirical characteristics of law's role in society. Differentiated from this perspective are the internal study of law, which is undertaken by legal professionals to maintain the consistency of the legal system, and moral perspectives of law, which seek to ground or criticize law based on a normative principle. Weber argued that the theoretical key to the transition from preindustrial to modern law was the specific form of the rationalization of law. According to Weber, modern law is formally rational, meaning that law is based on procedures requiring that it should apply equally and fairly to all. Besides being impartial, modern law is also codified (written down) and impersonal in its procedural reliance exclusively on the facts of the case.

Although sociological theories of law could benefit, perhaps more clearly than any other specialty area, from the pioneering work of the discipline's founders, the sociology of law was relatively slow to progress during the first half of the twentieth century. To be sure, several scholars, especially in Europe, took up the challenge to develop theoretical perspectives in the sociological study of law. Eugen Ehrlich (1862–1922), Nicholas Timasheff (1886–1970), and Georges Gurvitch (1894–1965) were most notable among those who contributed to the theoretical elucidation of law from a sociological viewpoint. Yet, the works of these scholars have only recently been discussed and have not influenced much research or debate.

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