OTHER SOCIOLOGICAL APPROACHES
Ian R. Macneil
Wigmore Professor of Law
© Copyright 1998 Ian R. Macneil
2. The Fundaments of Economic Behavior
3. The Many Worlds of Law and Economics
4. The Unity of Law and Economics
5. Posnerian Law and Economics
B. Other Sociological Approaches
7. Case-law research as a Sociological Approach to Law
8. Approaches Based on Particular Theories
9. Empirical Sociological Approaches-General
10. Empirical Sociological Approaches-Comparison with PosnerianLaw and Economics
11. Empirical Studies: the Meeting Ground
C. Standing in the Competition of Law and Economics and OtherSociological Approaches
13. The Causes of the Relative Success of Law and Economics inAmerica
Bibliography on Other Sociological Approaches (0630)
The following aspects of law and economics important to understandingcomparisons to be made to other sociological approaches are set out: (1) thefundaments of economic behavior; (2) the many worlds of law and economics;(3) the unity of law and economics; and (4) Posnerian law and economics. Othersociological approaches to law, particularly American, are described: (1) case-lawresearch as a sociological approach to law; (2) approaches based on particulartheories; (3) empirical sociological approaches generally and as compared withlaw and economics, particularly Posnerian law and economics; and (4) empiricismas the meeting ground between law and economics and other sociologicalapproaches, a meeting ground in which empirical product rather than competingtheories may be the most important aspect. Finally, the positions of law andeconomics and other sociological approaches as competitors are explored
JEL classification: K00 Law and Economics--General
Keywords: Case-Law, Empirical, Law-and-Economics, Posner, Sociology
Any comparison between law and economics and other sociological approachesis complicated by the fact that there is neither a single law and economicsapproach nor a single noneconomic sociological approach to law. Moreover,when law and economics takes a serious empirical turn it may for all practicalpurposes be indistinguishable from empirical noneconomic sociology. SeeSubsections 10 and 11. To deal with these problems of diversity and to makecomparison feasible in the small compass of this part, I shall focus on what maybe called the Posnerian approach to law and economics. See Subsection 5.(There is a danger in this, as it all too easy improperly to equate law andeconomics with Chicago School, and particularly Posnerian, economics.Donohue (1997). There is, however, no intention of doing so here.) On thesociological side I shall range somewhat more broadly. See Section B.
Section A treats a number of aspects of law and economics important to thecomparisons to be made to other sociological approaches: (1) the fundamentsof economic behavior; (2) the many worlds of law and economics; (3) the unityof law and economics; and (4) Posnerian law and economics.
Section B describes other American sociological approaches to law: (1)case-law research as a sociological approach to law; (2) approaches based onparticular theories; (3) empirical sociological approaches generally and ascompared with law and economics; and (4) empiricism as the meeting ground.
Finally, Section C considers law and economics and other sociologicalapproaches as competitors.
2. The Fundaments of Economic Behavior
To understand law and economics it is essential to understand what itspractitioners mean by economic behavior.
First, economic behavior is the behavior of individuals, not collectivebehavior as such.
Second, it is behavior that individuals choose from among availablealternatives. It is thus distinguishable from behavior over which an individualliterally has no control at the time it occurs, as for example where an person withan unfastened seatbelt is thrown against a windshield in a head-on automobileaccident.
Third and finally, it is behavior an individual chooses by somehow assessing(by no means necessarily consciously) that the benefit of the behavior to theindividual exceeds its costs. The latter aspect is so vital to economics thateconomists have sanctified it by adding an appealing adjective, rational.
This adjective is not intended in economics to mean reasonable--it's ordinaryusage--and its meaning in law and economics is unclear. (Ronald Coase cautionsagainst "any economic concept that includes the word `rational.'" Coase (1993,p. 98)) Nonetheless, its repeated use by economists has led to such analysisbeing called rational choice theory. (It is by no means clear what this thirdelement--with or without an adjective--adds to the second. When an individualchooses to behave in a specified manner, no matter how self-destructive, bizarre,or even utterly mad that behavior may appear to others, the individual obviouslyat that instant perceives the benefits as exceeding the costs. Only unchosenbehavior, i.e. beyond any control by the individual, could be otherwise.)
It is also important to point out what law-and-economists typically do notmean by economic behavior. Economic is not limited to matters relating to theproduction, distribution, and consumption of material goods and services, thecommon usage of the term. Typical law-and-economists most emphatically donot mean that economic analysis is possible only of behavior relating to materialmatters. Thus, as used in law and economics, no one, economist or otherwise,can gainsay that rational choice theory can be applied to any subject aboutwhich people make choices. Failure to recognize this can lead to confusion andmisplaced criticism of law and economics. See Cotterell (1995, particularly pp.347-348, 357 n.2). To avoid such confusion economics is here limited to meanrational choice theory, and never used in its common-usage sense.
One of the many consequences of these characteristics of rational choicetheory is that it cannot recognize within its theoretical structure any kind ofrelationship among people other than that of competition. Thus the modelepitomizes Mrs. Thatcher's alleged dictum, "There is no society, onlyindividuals." (This is not to say, of course, that the model cannot be or is notused to analyze behavior in what even law-and-economists--but only whilestepping outside their model--would recognize as relationships, including thosein which they recognize altruistic elements. Again of course, the model can alsobe used to analyze an individual's choice among his or her own competingdesires, desires which may impinge differentially on relations with others. Thisis not, however, a recognition of relations within the theoretical structure of themodel, such as is typically found in other sociological approaches.)
3. The Many Worlds of Law and Economics
In spite of the dominance of rational choice theory, any given work in law andeconomics may differ from another in at least any of the following somewhatoverlapping respects:
a. Normativism and positivism: ranging from insistence that economic analysisis nothing but positivist prediction to full recognition that it is necessarilynormative from start to finish.
b. Objective of analysis: determining (1) Pareto-superior positions, (2)Kaldor-Hicks efficiency, (3) wealth maximization, (4) distributional effects, or (5)some combination.
c. Rational behavior: meaning of:
(1) Nature: ranging from any chosen behavior to requiring inclusion of varyingdegrees of knowledge, thoughtfulness, and reasonableness (rationality in theusual sense of the word) in the behavior;
(2) Consistency of behavior: varying assumptions of consistency of behaviorover time;
(3) Boundedness: accepting or not recognizing boundedness of rationality;
(4) Consistency of use of the term throughout the work in question.
d. Transaction costs: recognition and assessment of impact: (1) ignored, (2)recognized but explicitly excluded, (3) analyzed as supplemental to theoreticalanalysis, (4) entire focus on transaction costs, (5) treatment ranging from casualto systematic empiricism.
e. Relations, recognition as such: ranging from no recognition of relations otherthan competition among individuals to primary focus on relations in theinstitutional school of law and economics. (See Subsection 2.)
f. Empiricism: ranging from entirely theoretical to heavily empirical.
g. Distributional effects: (1) ignored, (2) recognized but explicitly excluded onvarying grounds, such as ceteris paribus, unimportance, or on ground that theyshould be dealt with apart from the subject being analyzed, e.g. through generaltaxation and welfare, (3) treated as essential aspect of analysis.
h. Individualism: attitudes towards: ranging from strongly individualistic to avariety of non-individualistic positions.
i. Market-solutions: attitudes towards: ranging from pro-market to neutral toanti-market (the latter being rare).
j. Politico-legal goals: ranging widely over the political spectrum with varyingranges of obscurity and clarity.
k. Power: from ignoring to considering power either as a benefit individuals seekthat affects choices or as a social subject requiring analysis per se.
Some of the diversity of these many worlds is shown by De Geest (1995),who, however, suggests a unity greater than that perceived by the authors ofthis part.
4. The Unity of Law and Economics
In spite of the foregoing, three factors bring considerable unity to law andeconomics.
First is the centrality of rational choice theory (see Subsection 2) with itsfoundation in the individual.
Second, the field remains an area dominated by theoretical and deductive,rather than empirical and inductive, analysis, although the latter seems to begrowing in importance. See Donohue (1997); Shelanski & Klein (1995).
Third, at least in the United States there is a dominant school of law andeconomics, epitomized by the work of Richard Posner (see generally Posner(1992)), to which I now turn.
5. Posnerian Law and Economics
The Posnerian school falls at the following locations on the spectra set out inSubsection 3:
a. Normativism and positivism: focuses on allegedly positive prediction andtypically claims great formal predictive power, even as it fails to recognizelimitations in rational choice theory that require empirical rather than formal proofof conclusions;
b. Objective of analysis: seeks to promote efficiency and wealth maximization;
c. Rational behavior: meaning of: is often unclear on the operational meaning ofrationality;
d. Transaction costs: treatment is often cursory and may be inconsistent withthe Coase theorem as now generally understood;
e. Relations, recognition as such: rejects any idea of relations, other than thoseof competition among individuals (see Subsection 2.);
f. Empiricism: empirical work may or may not be done, as it is unnecessary inlight of claims to positive prediction by the theoretical model;
g. Distributional effects: treats distributional effects as beyond the pale; (Posnerhimself has dealt at considerable length with distributional issues such asmeasuring inequality, redistribution through liability rules, and taxation. Posner(1992, pp. 455-515) Nonetheless it is difficult to find Posnerian analyses ofparticular subjects where treatment of distributional issues goes beyond, atmost, a slighting acknowledgement that the only justification for ignoring theresult produced by rational choice theory would be to redistribute wealth.)
h. Individualism: attitudes towards: has a strong individualist bias, includinglarge organizations within the concept of individuals except when analyzinginternal operations of an organization.
i. Market-solutions: attitudes towards: favors market-solutions; opposes notonly government regulation but also any social governance other than that ofcompeting individuals;
j. Politico-legal goals: is often accused of right wing political biases. Toparaphrase Posner: "Suspicion persists that [law and economics] owes a lotmore to visceral [right]-wing political preferences than to any body of theory."Posner (1995, p. 269);
k. Power: ignores power either as a benefit individuals seek that affects choicesor as a social subject requiring analysis per se.
B. Other Sociological Approaches
For an extensive treatment of law and the social sciences see Lipson & Wheeler(1986); respecting law and sociology see Arnaud (1993).
In contrast to rational choice theory, noneconomic sociological approaches treatcollective behavior or relationships rather than focusing on individuals as such.They may or may not pay much attention to choice, viewed either individuallyor collectively. They may or may not pay much attention to the idea of benefitsand costs in choosing. And they may or may not pay much attention either tovague concepts of rationality as found in economic analysis or to rationality inthe ordinary sense of reasonableness.
Given their social orientation, noneconomic sociological approaches oftenrecognize and focus heavily on social, as distinguished from individualistic,concepts. Thus, for example, in his excellent article comparing law andeconomics and sociological approaches to law, Cotterell mentions among otherssuch concepts as: law, social change, legal relationships, social relationships,solidarity, general social trends, enduring patterns, mediating forces, culture,broad movements, legal modernity, and more specifically, "power andgovernmentality," (Foucault), "self-referential systems of communication"(Luhmann), "the `life world' and the public sphere" (Habermas), and otherconcepts developed by such diverse scholars as Marx, Tönnies, Durkheim,Weber, Parsons, Neumann, and Unger. Cotterell (1995). Althusser, Gramsci, andGurvitch would have been worthy additions to this list.
Like economics, sociology means many things, and a wide variety ofsociological approaches to law other than law and economics exist, far moreindeed than in the world of law and economics itself. (These include law andanthropology, untreated here only because it has its own treatment in 0640. AsCotterell says, "[In]) address[ing] the complexities of law's relations to culture. . . it seems that no useful line can now be drawn between anthropological andsociological research." Cotterell (1995, p. 350)) For example, Roscoe Poundadvanced the idea of sociological jurisprudence early in this century, and thatconcept has been important to the study of law ever since. Even legalphilosophers one does not usually think of in such terms may considerthemselves sociological. For example, as Posner (1995, p. 279, n.2) points out,H.L.A. Hart described his The Concept of Law as "an essay in descriptivesociology." Jurisprudence, sociological or otherwise, is not, however, what isgenerally meant by law and sociology, and I shall address it no further. (We thusomit consideration of such important works as Black (1989).) Instead, fromamong the many possibilities in this complex world of law and sociology, focushere is on three kinds of sociological approaches to law: case-law research,particular-theory approaches, and empiricism with little or no theoretical base.
7. Case-law Research as a Sociological Approach to Law
The term "case-law research" is used here to mean research aimed at finding outwhat judicial and/or administrative decision-makers have done respectingparticular issues. (Case-law research may be and often is, of course, conductedin connection with more formal approaches of various kinds, such as law andeconomics and various critical theories. The discussion following is limitedlargely to case-law research not so connected, although much of what is saidapplies to such instances as well.)
It is seldom, if ever, recognized in academia that--at least as conducted in theUnited States--ordinary case-law research is a form of sociological study of law.This omission calls for explanation given that such research is by far the mostcommon form of American legal study--both within and without the academy.In spite of the proliferation of academic and quasi-academic journals it maysafely be assumed that the majority of such research is done in the day to dayworld of lawyers and judges, administrators, and legislators, and their variousstaff members. Nonetheless, even with exclusion of such work of the real world,academic case-law research, that in law reviews, other legal periodicals, andmonographs of various kinds, overwhelms in volume all the more formalscholarly approaches put together.
In light of this dominance, it is worth pausing to consider what case-lawresearch is in the American context, what are its advantages and disadvantagesas a form of sociology, and the general ignoring of such work as a sociologicalapproach.
Nature of American case-law research. The vast bulk of American case-lawresearch focuses on opinions of appellate federal and state courts, althoughthere are important exceptions, particularly where the law is much involved withadministrative agencies, as in taxation, various kinds of regulation, andgovernment procurement.
The day has long since passed, if it ever really existed, when researchers intoAmerican case-law thought they would find Langdellian scientific principlesoperating in the cases. (There is, of course, an important exception, namelyresearchers who hold to some theory such as the implementation of principlesof efficiency by common law courts or particular theories of oppressioncharacterizing various critical approaches.) The Realist movement, if it didnothing else, legitimized examining cases to see what the courts really weredoing, rather than just what they were saying, in laying down the rules of law.(One should properly say re-legitimizing following the long post-Civil Warperiod of relative dominance of the formal style. Llewellyn (1960)) This is not tosay that in such research logic-chopping based exclusively on words is not onlycommonplace, but probably a good deal more common than more purposiveanalyses. Nonetheless, the better work--whether of practitioner, bench, oracademic--never slights the latter.
Case-law research of this kind is what Twining has called a "method ofdetail" Twining (1974)). And it is often, although by no means always, also akind of "thick description," Geertz (1973, ch. 1), as summarized by Cotterell (1995,p. 350):
Thick description moves social interpretation away from a search forabstractions that attempt to explain complex patterns of actions in terms of aminimum of rationally organized principles related to a general theory. It seeksrather a portrayal of complexity in all its ambiguity and richness. Geertz remarksthat the study of mankind often involves substituting complex pictures of socialphenomena for simple ones while trying to keep the persuasive character of theearlier simpler ones (Geertz, 1973, pp. 33-34).
The work of Childres and Spitz on the parol evidence rule, Childres & Spitz(1972), illustrates how purposive case-law analysis can result in thickdescription, as does Feinman (1995). Childres and Spitz examined a large sampleof cases applying a rule stated by the courts as unitary. From the facts of thecases, as distinct from the words of the opinions, Childres and Spitz concludedthat in fact there were three markedly different rules, depending upon whetherthe contract in question was a formal contract, an informal contract, or involvedan abuse of the bargaining process. (In quite rare instances work of this kindpurports to apply statistical principles.)
An important characteristic of the bulk of case-law research is that it isa-theoretical. The researcher typically is interested in finding out what is goingon and then drawing various conclusions respecting such things as what thelaw is in terms of formal rules (favorite of law students), what it is in terms ofactual application, what policies are or are not being implemented, and how allthese things might be changed for the better as the particular researcher viewsthe world. (Only when the research is conducted in the context of a particulartheory, e.g. law and economics, can it be said to be theoretical in nature.)
Case-law research as factual rather than legal research. The great bulk ofcase-law research is aimed at enhancing knowledge about the law itself (forwhatever purpose). Nonetheless it can be and is conducted for the purpose oflearning about party-behavior as such. Among many possible examples outsidethe field of criminology are Frasco (1991) (survey of exclusive dealing and tie-incases to ascertain motivations for such contracts); Kaufmann & Stern (1988)(perception of relational exchange norms in commercial litigation; database istrial court records). (Legal historians, who often do not consider their work asociological approach nonetheless often rely on case-law research to learn aboutsociety itself.) A great deal of legal history is of this nature. Wahl (1998) (surveyof all of the nearly 11.000 Southern appellate cases involving slavery). The twomotivations for research can easily merge in light of the impact of law onparty-behavior, as Mnookin and Kornhauser's phrase "bargaining in the shadowof the law" suggests. Mnookin & Kornhauser (1979)
Limitations of case-law research as sociology. Most case-law research iscasual in the sense that it is neither exhaustive of all the cases on a given subjectnor a statistical sampling of all such cases. (Studies of the kind mentioned in thepreceding paragraph tend to be exceptions.) Rather the selection is likely to bemade on the basis of hierarchical importance of the courts or agencies renderingthe decisions, often with jurisdictional and/or geographical considerations inmind. Casual does not, however, mean lacking in thoroughness, as to which thework varies greatly.
In addition, the formulation of just what constitutes the "given subject" isgenerally far less stringent than is expected in formal sociological approaches.
The most important limitation of all is the pathological nature of cases.Invariably they concern situations where not only have things gone wrong, butthey have gone wrong so seriously that the resulting conflicts were not settledwithout litigation, and generally, were not settled even after at least one courtor agency had rendered a decision. Moreover, the "facts" of cases are not thefacts of the situation giving rise to them, but those facts strained through anddistorted by the highly adversarial processes of the legal system. Thus study ofcases presents a highly solipsistic and distorted view of both the general socialcircumstances being examined and the particular facts of each case.
Finally, those who believe that some theoretical base is essential toworthwhile legal research will see a-theoretical case-law research as useless.Those who believe further that a particular theoretical base is essential tounderstanding law and advocating legal policy will likely see a-theoreticalcase-law research as harmful for obscuring the truth.
The non-recognition of case-law research as a sociological approach to law.There are probably many reasons why case-law research is seldom if everrecognized as a sociological approach to law. Most, if not all, of the limitationsdescribed above make it far less systematic and and aimed at truth-seeking thana word such as sociology generally suggests. Moreover academic case-lawresearch likely is tainted in many minds by the similarity of its basic techniquesto case-law research in the real world of the law. The latter is always highlyinstrumental and typically highly adversarial, neither characteristic beingappropriate to a scholarly investigation in the traditional sense. Finally, for allits factual orientation, case-law nonetheless generates general rules. Case-lawresearch thus can be--and, where formality dominates the law, is likely tobe--nothing more than a way of distilling general rules, as the maddening habitsof most law students bring home to every American law teacher. To the degreethis is true, case-law research is no more sociology that would be reading a civilcode.
The consequences of non-recognition of case-law research as part of theworld of law and sociology are quite serious. Probably the most important is theexclusion of a vast body of information as being essentially unworthy insystematic sociological investigation. Nonetheless, flawed though it is,information derived from case-law research is far from useless. This isparticularly so because of the close relation between academic case-law researchand that in the real world of the law. Another consequence is that suchnon-recognition exacerbates the separation of academic scholarly work from thework of the legal profession and legal institutions. See Edwards (1992). Yetanother is that it distorts the perceptions of the relationships between competingapproaches to the law. See Subsection 5. Closely related to this is the presentday derogation of such work in American law schools. Even the highest qualityof original but straightforward case-law research is unlikely to yield tenure inelite American law schools, or perhaps even to generate summer-research grants.
8. Approaches Based on Particular Theories
Professor Cotterell has described sociology of law as "the effort to developsystematic, empirically oriented, theoretically guided knowledge of law as asocial phenomenon." Cotterell (1995, p. 347). Except that the empirical orientationis often quite thin, this is an accurate description of some sociologicalapproaches to law, hereafter called theory-driven. (Relatively non-theoreticalempirical sociological approaches, see Subsection 9, do not, of course, fit thisdescription.)
Such approaches are like law and economics in that they are based onparticular theories. Marxian analysis, now in considerable eclipse, is perhaps thefirst to come to mind. But of the five examples Richard Posner recently gave ofsociology of law being done "under other names" in the United States Posner(1995, p. 265) four--critical legal studies, critical race theory, feministjurisprudence, and gay and lesbian studies--are theory-driven. (Respectingcritical legal studies see Kelman (1987); critical race theory: Crenshaw, Gotanda,Peller & Thomas (1995); Delgado & Stefancic (1993); feminist jurisprudence:Symposium (1993); Decoste (1991); George & McGlamery (1991); gay andlesbian studies: Robson & Duberman (1997); Arriola (1994); Eskridge (1994);Robson (1992).) Such theory-driven sociology of law is particularly prevalent inEurope. van Loon, Delrue, and van Wambeke (1995, p. 380), for example note that"a lot of the European sociologists of law (of course, also with exceptions) strivefor a major theoretical image." For examples see Subsection 6.
Again like law and economics, in such theory-driven approaches the positivetruth of the basic theory, if any is claimed, is assumed rather than provedempirically. Indeed, it is in the nature of such theories that they cannot beproved empirically in anything remotely close to scientific proof. (Many if notmost rational choice theorists would probably argue that the positive nature ofrational choice theory has been proved repeatedly, and needs no further proof.But what in fact has been proved repeatedly is that--at best--with properempirical bases it can produce relatively positive conclusions respectingparticular applications. Even so, as suggested in Subsection 10, it is probablythe empirical base that supplies whatever positivism exists, rather than thetheory.)
These theory-driven sociological approaches, at least American versions,tend to be also like law and economics in that systematic empirical work is likelyto be thin on the ground. For example, critical empirical studies seem to comemore from individuals like Richard Abel, see Abel (1989), Abel (1988-89), who isrelated to the critical legal studies movement than from those commonly viewedas at its center, such as Duncan Kennedy, Mark Tushnet, or Roberto Unger, (tothe extent it can be said to have a center).
Nonetheless, these theory-driven sociological approaches differ from lawand economics in a number of respects.
First, their analysis is almost always founded less on individual behaviorthan on behavior of groups identified by such factors as class (in the case ofMarxian analysis and often critical legal studies), race, gender, and sexualorientation.
Second, the focus of analysis is typically on power relations in which powerrespecting material affairs as such--the principal focus of law andeconomics--may or may not be a principal concern. Power respecting ideologyand culture-formation are of particular interest to many scholars of theory-drivensociological approaches.
Third, within particular subject areas competing theories exist, therebymultiplying diversity of approaches.
Fourth, although all these theory-driven sociological approaches are related,at least in the United States, to groupings with significant socio-political powerin the nonacademic world, at the present time they all remain relatively marginalin American law schools. Their heaviest impact in the latter is probablycollectively in terms of fostering academic atmospheres which may, for lack ofa better description, be described as "politically correct." In particular, neithercollectively nor separately have they achieved the power position, at least inAmerican law schools, of the law and economics movement.
The foregoing non-mainstream attribute is related to a fifth characteristic:these approaches are all related to particular social causes. (One need not,however, go as far as Posner, who said: "Suspicion persists that critical legalstudies owes a lot more to visceral left-wing political preferences than to anybody of theory." Posner (1995, p. 269).) None of the causes they represent have,however, been able to achieve more than limited acceptance either within orwithout academia as compared to the prevailing socioeconomic patterns ofmodern capitalist-consumer society. To a degree this is true also of law andeconomics. The latter has nonetheless been markedly more successful inachieving standing and power for its advocates, at least in American lawschools, than have all the theory-driven sociological approaches combined.
9. Empirical Sociological Approaches-General
van Loon, Delrue, and van Wambeke (1995, p. 380) have pointed to the "greateremphasis on induction, on empiricism, and on methodology in the UnitedStates" compared with Europe. They went on:
The American scholars--of course, with exceptions--tend to build theoryinductively, from the bottom up, driven by data, policy concerns and empiricalobservations.
See also Posner (1995, pp. 272-273). van Loon's word theory needs to be treatedgingerly. The theory produced by or related to such work, in America at least,is not macrotheory of the type I have called theory-driven law and sociology.Rather it tends, at most, to be what Cotterell calls middle-range theory, usuallyconcerned "with analyzing the causal effects of legal change on wider socialchange or with specifying the social mechanisms by which law can bring aboutor hinder social change." Cotterell (1995, p. 352)
Rubin has made these points more specifically in terms of a particular field,contracts:
American sociology tends to be heavily empirical, but law schools lack theintellectual infrastructure to carry out sustained empirical research. Unlikeeconomics, no dominant theoretical approach has emerged in sociology, and thetheories of America's leading theoreticians such as Talcott Parsons and HerbertGarfinkel proved difficult for contracts scholars lacking sociological training toapply. The same is true for German social theory, which may represent a morepromising approach. While jurisprudence has been receptive to Habermas andGadamer, contract scholarship has tended to overlook the more applicable workof their contemporaries such as Niklas Luhmann, Gunther Teubner, and ClausOffe. The result, once again, was the delayed development of a theory forunderstanding and evaluating the contractual process itself, as opposed to thejudicial rules that are applied when that process goes awry. Rubin (1995, pp.113-114)
Before proceeding, the obvious should be noted: theory-driven and empiricalapproaches as I have used the terms are not watertight compartments. Towhatever degree there is serious empirical work they can easily overlap. RichardAbel has already been mentioned as an example of a theory-influenced (drivenmay be too strong a word in this case) scholar doing extensive empirical work.On the other hand, van Loon and his colleagues who appear more in theAmerican mode as they describe their work in van Loon & Wouters (1992) vanLoon & Langerwerf (1990) nonetheless relate it to Durkheim and Weber. vanLoon, Delrue, & van Wambeke (1995, pp. 382-384)
American sociology of law is related historically to the American LegalRealist movement, which may be summarized by the words in 1926 of Charles E.Clark and Robert M. Hutchins quoted in Schlegel (1980, p. 459):
We regard the facts as the prerequisite of reform.
The strongholds of that movement were Yale Law School and to a lesser extent,Columbia Law School. See generally Schlegel (1995). More recently theUniversity of Wisconsin Law School is often considered the center of law andsociology, although the American Bar Foundation is a very important non-lawschool center. The realist movement is often thought to be dead. It is, however,difficult to understand exactly what that means when present day names like LisaBernstein, Howard Erlanger, Lawrence Friedman, Mark Galanter, John Heinz,Willard Hurst, Richard Lempert, Stewart Macaulay, Robert Mnookin, RalphNader, H. Laurence Ross, David Trubek, William Whitford, and David Wilkins,to mention a few, are considered. Although law and society is a broader conceptthan law and sociology, all elements of the law and society movement are in asense, realist. See Friedman (1986).
Oddly enough, criminology, which is a major if not the major area ofmainstream academic sociology and law, is less likely to come to mind. Thisseems to be because the subject has never established a significant foothold inthe curriculum of American law schools. For example, the leading list ofAmerican law school teachers by subjects contains headings for Criminal Justiceand Criminal Procedure, AALS (1995, pp. 1077-1091), but none for Criminology.So too, names like Morris, Zimring, and Jacobs, and their related criminologycenters, appear in the AALS Directory, but not as teachers of criminology,AALS (1995, pp. 691, 989, 529). (Stanton Wheeler at Yale Law School is,however, an exception.) This is in sharp contrast with the comparable list in theUnited Kingdom, where the list of teachers with a particular interest inCriminology is larger than for either Criminal Justice or Criminal Procedure,although smaller than for Criminal Law. SPTL (1996, pp. 129-130).) (Penology &Sentencing add quite a few more names to Criminology. The comparisonbetween Britain and the United States is rough, because the SPTL lists researchinterests rather than subjects taught. See, however, SLSA (1996, pp. 282-283,306) which shows both research and teaching interests, with about two and halftimes as many members listing criminology in the latter category as in theformer.)
As with law and economics the empiricism of other sociological approachesmay range from the most casual to the most systematic. The more systematic itis the more it is likely to be recognized as a sociological approach.
10. Empirical Sociological Approaches-Comparison with Posnerian Law andEconomics
Like all noneconomic sociological approaches, empirical approaches focus oncollective behavior rather than on individual behavior as such, and are thussharply different from Posnernian law and economics. Beyond that, the eclecticnature of empirical sociological approaches limits comparison to generalities ofthe following kinds.
a. Normativism and positivism: The very nature of the complexities examined andthe obvious limitations of the investigative techniques available render ludicrousany claims to the kinds of genuine positivism claimed for Posnerian law andeconomics. The most that can ever reasonably be claimed is to have made aheavily persuasive case for the existence of particular facts, causes, desirableroutes of change, and the like.
b. Objective of analysis: The objective is to ascertain the social facts seen by theresearcher as pertinent to the subject of investigation as defined by theresearcher. Thus maximization of wealth as defined by the economic model, thegoal of Posnernian law and economics, may (unlikely) or may not be the goalsought by the researcher, and if it is is almost sure to be but one of many.
c. Rational behavior: meaning of: To whatever extent, generally very limited, thenoneconomic researcher is concerned with rational choice theory, rational meanswhat it means in the theory. As was seen in Subsection 2, however, the word hasmany meanings in economics. The obfuscation of the term as used in economicsis likely to be exacerbated when used by noneconomic sociologists on accountof their tendency to conceive of economics as limited to material human affairs.Thus the word can in their hands, but probably does not, have the samemeaning as in Posnernian law and economics. Thus noneconomic use ofrational is likely to refer to reasonableness, its common meaning amongeveryone except economists.
d. Transaction costs: recognition and assessment of impact: Noneconomicsociological approaches in a sense treat nothing but transaction costs. Thephrase "transaction costs" postulates, however, at least relatively discretetransactions as the focus of analysis. It is itself a markedly discrete way ofthinking about the way exchange occurs in relations. See Macneil (1981). Thusnoneconomic empirical sociological approaches deal with transaction costs.Unlike Posnernian law and economics, such treatment is typically from relationalperspectives, and quite likely occurs without calling the subject studied"transaction costs."
e. Relations, recognition as such: Noneconomic sociological approaches bydefinition focus on relations of all kinds and are thus antithetical to Posnernianlaw and economics with its focus on individuals whose only relationship iscompetitive.
f. Empiricism: This is the core of this approach, and is in sharp contrast toPosnernian law and economics, where it is typically slighted.
g. Distributional effects: Likely to be considered where viewed as pertinent andsignificant to the subject, and thus once again sharply at odds with Posnernianlaw and economics.
h. Individualism: attitudes towards: Nothing in the nature of empiricalnoneconomic approaches favors or disfavors individualism, and it is thustheoretically more neutral than Posnernian law and economics on this score. Butsee the discussion of attitudes towards market-solutions below; similar thingscould be said about individualism.
Noneconomic empirical sociologists are less likely than Posnerians to considerlarge organizations to be individuals for the purpose of investigation.
i. Market-solutions: attitudes towards: Nothing in the empirical approach as suchfavors either market or nonmarket-solutions, and it is thus theoretically moreneutral than Posnernian law and economics on this score. Nonethelessempiricists with a strong bent towards market-solutions are likely to end up inthe law and economics camp, empirical side, rather than in noneconomicsociology. This is particularly so of American legal educators, given the powerin American law schools of law and economics, especially Posnernian law andeconomics, see Posner (1995). Thus American empirical sociological approachesare more likely to be conducted by individuals who range from having relativelyneutral views about market-solutions to those who heavily favor governmentaland other regulatory solutions.
j. Politico-legal goals: There is nothing in the nature of noneconomic empiricalsociological approaches that precludes right wing political biases. Nonetheless,in the American context at least, those engaging in such approaches areprobably generally thought of as political liberals ranging from middle to leftish,but not radicals in the various critical camps mentioned in Subsection 8.
k. Power: In contrast to Posnernian law and economics, power may berecognized as an important factor either explicitly or implicitly.
11. Empirical Studies: the Meeting Ground
Empirical work apart from case-law research has been mentioned respecting allthree of the major sociological approaches treated in this part: law andeconomics, other theory-driven sociology, and other, nontheory-driven empiricalsociology. (This is not to suggest that any social investigation can ever be freeof ideology and unexpressed theories.)
Empirical work is where all approaches can meet in equal competition. Or toput it in another way, where empirical work is a central focus of study theapproach behind it may be singularly unimportant. Consider, for example,Ellickson's investigation of the ways in which farmers and ranchers in ShastaCounty, California work out animal trespass disputes. Ellickon used socialscience methods in his study, focusing on a local case study (a narrow but deepwedge of location and time), gathering demographic and documentary evidence,and conducting extensive field interviews with a range of participants. He thenused this finely detailed, highly localized data as a basis for theorizing about abroader slice of reality.
Larson (1995, p. 229), citing Ellickson (1986, pp. 627-628); see also Ellickson(1991). "Ellickson concluded that high transaction costs were such a barrier tolegal recourse that neighbors instead had worked out their problems in aneighborly fashion, developing a set of customary norms that became their`Order Without Law.'" Larson (1995, p. 232 n.278). As noted, this investigationwas conducted in terms of transaction costs by its author, a devoted law andeconomist. See Ellickson (1993). Moreover, he keyed his work to Coase's theoryabout social costs, Coase (1960), a Posnerian Bible until Coase explained whathe really meant: what matters is not what happens theoretically when there areno transaction costs, but what happens in reality when there are. Coase (1993).
To those of genuinely empirical bent, what counts about Ellickson's ShastaCounty study is not its origin in the mind of a law and economist or what it mayor may not show about rational choice theory. What matters is the quality of hisempirical work and the knowledge of human behavior that can be derivedtherefrom.
This is equally true of sociologists proceeding from other viewpoints. Tothose of genuinely empirical bent, what counts about the studies of van Loon,Delrue, & van Wambeke of litigation, for example, is not their origin in the mindsof Weberian-Durkheimians or what they may show about Weberian-Durkheimiantheory. What counts is the quality of their empirical work and the knowledge ofhuman behavior that can be derived therefrom.
Various authors have talked about the coming together of law and economicsand sociology, Campbell (1996), De Geest (1995), Posner (1995), as well aseconomics and sociology more generally, Baron & Hannan (1994). Posner, forexample, urges "the erasure of the remaining disciplinary boundaries that areretarding the complete merger of sociology with the other scholarly disciplinesthat study law." Posner (1995, p. 266)
If such a merger is in prospect the question is how they come together, andhere there are great variations. It is clear enough that Posner means a mergeralong the lines of the Norman conquest of the Anglo-Saxons, with Posnerian lawand economics in the role of the Normans. (Just as Norman England was amerger and not genocide, so too Posner would leave something of noneconomicsociology intact, such as the impact of social class on economically inexplicablebehavior. Posner (1995, p. 278).) De Geest on the other hand sees law andeconomics as already a combination of economics, sociology, psychology, andother sciences, a pattern very much at odds with Posnerian law and economics.
I too see a possible merger in the offing, one closer to De Geest's than toPosner's position. What is suggested here is that empirical studies of lawthemselves may be in the process of establishing a field of study that essentiallytranscends the economic and noneconomic boundaries. In that field thecompetition will be over empirical quality with theoretical approaches playingonly a secondary role. Out of such an eclectic body of research could come aneclectic social science in which a wide variety of theories all were viewed asvaluable analytical tools, but with none having a monopoly on whatever limitedpositivism is possible in social investigation. For a suggestion of a merger alongsomewhat similar lines relating to crime, see Panther (1995, pp. 372-375).
C. Standing in the Competition of Law and Economics and OtherSociological Approaches
There can be little doubt that much competition exists among the proponents ofthese various approaches for prominence in the study of law. Richard Posnerhas proclaimed more or less total victory in this competition for law andeconomics, at least insofar as American legal studies are concerned. Posner(1995)
It would be foolish to deny that law and economics has become the mostpowerful single monofocused discipline in American legal studies. Nonetheless,the victory is neither as complete nor as satisfactory from a Posnerianstandpoint as might appear from reading Posner's account. Before taking upmore serious aspects, it might be noted that although Posner professed to beunaware that sociology of law is commonly taught in American law schools,Posner (1995, p. 275), half again as many names are listed as teaching Law andthe Social Sciences as Law and Economics in AALS (1995, pp. 1153-1154,1158-1160). It is true that the former category is a potpourri. It even includessome teachers, e.g. Guido Calabresi, who prefer their law and economicsteaching to be so categorized rather than under the more specialized heading.Nonetheless, a riffle through the entries for some of the teachers so listedsuggests that some form or aspect of law and sociology is taught in Americanlaw schools a good deal more than Posner suggests. (In terms of expression oflaw teacher interests the picture in Britain is dramatically opposite from Posner'sview. Only 5 law teachers identify an interest in law and economics, comparedto 14 for sociology of law and 7 for socio-legal studies. SPTL (1996, pp. 130, 135,136).) I turn now to more significant tests of success.
First, when academic case-law research of the type described in Subsection7 is counted as a noneconomic sociological approach, law and economics fallsinto a very distant second place. Moreover, academic case-law research has amighty sibling in the day-to-day work of bench and bar. Although law andeconomics may dominate a few areas of legal practice, most notably antitrust andrestrictive practices, and may, as Posner claims, have had an effect on thederegulatory movement, it is a long, long way from dominating or even playinga major role in most areas of the law. There are undoubtedly a growing numberof judges relatively literate in law and economics. That does not, however, meanthat they are necessarily converts who view economic analysis as a primary,much less the primary, tool of their trade. (For a critical discussion of therelationship between theoretical studies like law and economics and the legalprofession, see Edwards (1992).)
Second, as noted in Subsection 3, there are many worlds of law andeconomics, a field not originated by Posner. Nor, in spite of Posner's prolificwork and the dominance of Posnerian thinking, by any stretch of the imaginationhas Posnerian law and economics ever occupied the entire field of law andeconomics. Furthermore, even apart from its diverse origins, the centrifugalforces afflicting any maturing ideology seem to be well and truly loose in lawand economics. Moreover, other theories, in particular game theory, have comemuscling into law and economics. Game theory proceeds from the individualisticbenefit/cost concept as does law and economics. Nonetheless, game theory,with its stress on asymmetric information and strategic behavior, bringsuncertainties to the picture utterly inconsistent with the kinds of claims topositivism often made on behalf of law and economics. ("[T]he strongpredictions of the price theoretic models quickly degenerate into a fragmentedarray of models whose predictions are highly dependent on the nature of theinitial assumptions." Donohue (1997).)
An illustration of the centrifugal forces affecting law and economics comesfrom the institutional school of which Oliver Williamson is the leading voice.Williamson responded to Posner's analysis of that school, Posner (1993), in thefollowing manner:
Posner (1) has not understood the Coasian message (or does not like what hehears), (2) misconstrues transaction costs economics, (3 misconstrues gametheory, (4) has a truncated understanding of bounded rationality, the economicsof information, and maximizing, and (5) mischaracterizes empirical research intransaction cost economics. Williamson (1993b, p. 99), replying to Posner'sattack on Williamson (1993a). Such comments hardly augur well for a unified lawand economics under the Posnerian banner.
The presence of these forces swirling around Posnerian law and economics goesblithely unrecognized in Posner's mention of Guido Calabresi as one of the sixlaw and economics academics on the federal Courts of Appeal. Posner (1995, p.281 n.30). Calabresi, who with Coase has legitimate claim to be the co-founder oflaw and economics, never has been in the Posnerian school. Moreover, fouryears before this citation of his name appeared, Calabresi specifically andvigorously rejected several of the most fundamental principles underlyingPosnerian law and economics. Calabresi (1991)
Given these divergent forces, whatever claim may be made for a victory ofeconomic analysis over other sociological approaches does not, as Posnerclearly would like us to think, support a claim of such victory for Posnerian lawand economics.
Third, and perhaps most important respecting any claim of a Posnerianvictory, is the impact of empiricism on the relationship between law andeconomics and other sociological approaches. As suggested in Subsection 11,what matters about empirical work is its quality, not the particular intellectualcamp from whence it comes, e.g. Ellickson's Shasta County study, Ellickson(1986). Ellickson analyzed the outcome from the standpoint of transaction costeconomics. The social facts as found by Ellickson, however, equally vindicaterelational contract theory in which transaction costs are viewed as too narrowa social concept. Macneil (1981). Thus, in terms of the empirical work itself,Ellickson's work is just as much a part of the noneconomic sociological approachof relational contract as it is a part of law and economics. Ellickson's fine workturns out not to be victory of law and economics over a noneconomicsociological approach, but a victory for empiricism.
The dangers to Posnerian orthodoxy, or even to the minimum of economicsorthodoxy, of high quality empirical work by law-and-economists should beobvious. Such work focusing on transaction costs, and/or taking into adequateaccount assymetric information and the possibilities of strategic bargaining, maycome perilously close to demonstrating the validity of noneconomic approacheswith their emphasis on complex social worlds. It could thus lead to what Posnercalled an "erasure of the remaining disciplinary boundaries." Posner (1995, p.266). A merger of law and economics and other sociological approaches at theempirical level with theory being very much of secondary importance is not,however, the erasure Posner had in mind. His was an erasure of disciplinaryboundaries whereby rational choice theory would take over the world. (Notsurprisingly he denies this in id. pp. 277-279.)
13. The Causes of the Relative Success of Law and Economics in America
Posner attributes his claimed victory of law and economics to the following: MaxWeber's bequest to sociology of a "useless methodology," id. pp. 267-268);insofar as criminology is concerned "a discredited approach to criminality andits control," id. p. 270; the "lack of theoretical and empirical [sic!] ambition" ofAmerican sociology of law compared with law and economics, id. p. 272; a lackof normative punch compared to law and economics, id. p. 273; the failure of lawand sociology "to retool with the methods of a rival discipline," i.e. law andeconomics, id. p. 274, prevented by such factors as the "left-liberal bent" of lawand sociologists who perceive law and economics as being "politicallyconservative," reluctance to accept the "'knowledge-claims'" of other disciplines,and professional envy, id. pp. 274-275.
Whatever one may think of the merits of Posner's factors purporting to fosterthe relative success of law and economics included, his list is far from complete.Other factors are not only important, but might well be thought to besubstantially more important than those listed.
Perhaps the most important factor Posner omits is the political climatedeveloping in America (and elsewhere) as law and economics was getting itsfoothold in American law schools. Reactions against the State from right and leftachieved national prominence with the Republican nomination of BarryGoldwater in 1964 and the anti-war movement of the late 1960s and early 1970s.Opposition to the bureaucratic welfare state legacies of the New Deal, Fair Deal,and Great Society increased during the period until it culminated in thepresidency of Ronald Reagan in 1980. Anti-regulation, pro-market positions suchas those of Alfred Kahn respecting the airlines became politically respectable ina way that they had not been since the days of the Hoover administration. Norwas this confined to the far right or even the right. On the international scene theliberal establishment, heavily eastern and Republican, long had been supportersof free trade. It is hardly surprising that law and economics, particularly of theideological Posnerian variety, thrived in such an atmosphere. Nor is it surprisingthat sociological approaches more likely to be neutral or favorable towardsregulation were less likely to thrive. (Interestingly enough, Mrs. Thatcher's 1979triumph seems to have largely failed to produce a similar pattern in Britishacademia; perhaps this in part reflected that, unlike Ronald Reagan, she neverenjoyed the support of much more than 40% of the electorate.)
Even the most casual observation of American law schools, particularly themore elite law schools, reveals how responsive their curricula and research areto what is going on in the outside world. The 1940s saw a proliferation of lawschool activity in areas like labor law (collective bargaining and unfair laborpractices) and administrative law reflecting the the New Deal. Comparative andpublic international law blossomed in the postwar coldwar era with America'snew world role. Law and poverty and civil rights courses came with the LyndonJohnson's Great Society. Courses and studies relating in a wide variety of waysto international trade have blossomed as its importance to the Americaneconomy have become more and more widely recognized. It is hardly surprisingthat a market-oriented and often right-wing subject like law and economicsthrived in the 1970s and thereafter. Indeed it would have been simply amazinghad it not.
A second factor in the relative success of law and economics undoubtedlyhas to do with the speed and simplicity of effort required for various kinds ofintellectual work. For example, case-law research and empirical studies based onpublished statistical information can be done in a library with far greater speedand simplicity of effort than empirical studies can be done in the field. This isalmost certainly the primary reason that the empirical studies envisioned by theearly American realists, and sometimes conducted on a pilot basis, caught on inAmerican law schools only to a extremely limited degree. Theoretical law andeconomics can in turn be done with far greater speed and simplicity of effortthan can be case-law and other library-based research.
None of the foregoing is to make any judgment whatever about theintellectual challenge or difficulty of the different kinds of enterprise. It is simplythat most thought-experiments based on hypothetical situations can typicallybe done faster than activities requiring fact-gathering, and that libraryfact-gathering can typically be done faster than field fact-gathering. Thustheoretical law and economics is in cost terms at a significant advantage incompetition with case-law research. It is at an even greater advantage incompetition with empirical approaches, particularly field studies. In an academicworld increasingly focussed on publish-or-perish this has made law andeconomics singularly attractive to those with real or imagined ability to carry outsuch analysis. This is especially true in any law school where article-countingis an important aspect of promotion and tenure.
The big challenge to law and economics on this score will come to whateverdegree it shifts towards empiricism and particularly towards the moretime-intensive forms of field study such as that of Ellickson in Shasta County.To whatever degree law and economics shifts in this direction its competitiveadvantage will tend to disappear.
A third important factor in the relative success of the law and economicsmovement has been its considerable financing from sources with pro-market, andoften right-wing, ideologies, of which the Olin Foundation stands out. Thisfinancing included particularly a major effort to proselytize law teachers. Startingin the late 1960s Henry Manne, a Chicago School enthusiast, organized awell-financed and most attractive summer program, first at the University ofRochester and later at the University of Miami. A very substantial number of lawteachers were both taught the basics of law and economics and propagandizedabout its merits by this program. (It was nicknamed Pareto in the Pines and afterits move south, Pareto in the Palms.) Manne continued such well-fundedprograms and others after moving to Emory University in 1980 and laterfounding a law and economics law school at George Mason University. Nothingon a remotely comparable scale has ever been available to provide financialsupport for noneconomic sociological training and propaganda.
In conclusion, the great and probably unbridgeable gulf between various othersociological approaches and Posnerian law and economics is much smallerrespecting other varieties of law and economics, particularly institutional law andeconomics. These smaller gaps are likely to become smaller yet to whateverextent both law and economics and other sociological approaches move in thedirection of empirical studies.
I am indebted to Jane E. Larson for reviewing the manuscript and making manyhelpful comments, including her point concerning legal historians and case-lawresearch in Subsection 7, as well as for supplying references, particularly for thetheory-driven sociological approaches mentioned in Subsection 8. The followingalso very kindly brought to my attention a number of important bibliographicalitems: David A. Campbell, John J. Donohue III, and Patrick J. Kaufmann. FinallyI am everlastingly indebted to my wife Nancy for helping me work throughproblems relating to the many weaknesses of rational choice theory, with theresult that I decided to limit the critique here to its Posnerian variant.
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© Copyright 1998 Ian R. Macneil