The phrase law and society refers to three interrelated phenomena of relevance to political scientists. First, the phrase signals the general tradition of interdisciplinary sociolegal scholarship that developed over the past half century around the globe to analyze how law, politics, and social forces or practices are interrelated and influence one another. Second, the phrase evokes more specifically the interdisciplinary, international (but North American centered), social science–oriented Law and Society Association (LSA) and various other national and regional associations around the world, which since the 1960s have provided organized leadership promoting this type of scholarship. A third referent is the manifestation of these previous two phenomena within the discipline of political science, especially in the Law and Courts section of the American Political Science Association (APSA), but also among political scientists throughout the world, and increasingly in related fields of comparative politics and international human rights. This entry begins by outlining the institutional history of the interrelated academic traditions (second connotation), and then discusses the types of law and society scholarship that have been most prominent among political scientists.
Professional Academic History
Law has long been a topic of research and teaching by political scientists. In the half century before the 1950s, law was implicated in a wide range of studies. The study of public law by political scientists in the United States prior to World War II (1939–1945) included constitutional law, administrative law, business regulation, and international relations. Amid the polarized cold war era that gave birth to the positivist, behavioral revolution in social science, all this changed. International law became almost meaningless, while studies of international organization and international relations developed in directions more attentive to the interests and inter play of key actors. Administrative law and regulatory law likewise were exposed as formalistic facades obscuring the behavior of interested public and private parties. Finally, traditional attention to constitutional structures and discourse was substantially shrunk to a focus on the U.S. Supreme Court, which was too important to discount. And even in this domain, study shifted from matters of jurisprudence to judicial behavior, and especially to questions of why justices voted as they did and to what effect. As Martin Shapiro has noted, “public law and judicial behavior thus dwindled into a marginalized constitutional law-Supreme Court ghetto of little interest to other political scientists” (1993, 366).
During the period before World War II, law schools in the common law–based United States and, even more, in civil law countries showed little interest in political science. In the 1960s, however, a loose alliance of individual law professors around the United States began to embrace newly developing social science approaches in an effort to invigorate the realist debunking of formal law taught in law schools that began in earlier decades and to marry sophisticated study of legal practice to the liberal social engineering schemes initiated during the New Deal and expanded by the Great Society. Select law professors and social scientists during this era found common cause in collaborative use of empirical study to make law “work better,” to promote making legal justice serve the ends of social justice. The primary thrust of the newly emerging scholarship was behavioral, positivistic, nominally quantitative, and policy oriented.
Sociologists and sociological inquiry led the initial wave of law and society collaboration, which was formally initiated with the birth of the Law and Society Association in 1964. By the 1970s, though, a number of political scientists became active in LSA and started to publish in the Law and Society Review, introducing a wider range of sociolegal inquiry into public law scholarship. Political scientists at Berkeley, Northwestern, and Wisconsin in particular developed small centers of sociolegal scholarship connected to the growing LSA intellectual community. These initiatives developed as confidence in social scientific research flourished, boundaries distinguishing national legal systems seemed relatively stable, interest in legal culture was confined to mass behavior and opinion, and scientific analysis provided a basis for policy prescription. Interest in joining sophisticated social science to the study of law began to grow beyond the United States, especially in the English-speaking world, leading to regional associations of scholars committed to the study of law and society.
These developments were uneven, halting, and mixed in implications, though. By the 1980s, very few law schools in the United States had hired political scientists into their faculty, and political scientists still largely dismissed law schools as havens of old-fashioned formalism. Indeed, the primary reason for inclusion of public law scholars in most political science departments was to serve the high demand expressed by undergraduate students for classes in constitutional law, civil liberties, and the U.S. Supreme Court. And while sociolegal scholarship was widely respected in the Law and Courts group, the latter subfield itself remained a relatively marginal, low-profile area of research activity in the broader discipline. Conversely, when law schools did begin to hire social science– trained scholars in 1990s, it was mostly in law and economics, an approach that never carved out much place in the law and society community. If institutionalists in sociology and political science once connected with law professors for the study of law in positive states of the global North, the rapid, widespread saturation of law schools with law and economics both paralleled and supported diminishing political commitments to the social welfare state.
Overall, the relationship between political scientists in the Law and Courts section of APSA and sociolegal scholars identifying with LSA has weakened since the early 1990s. One often cited reason was the influx of humanities-oriented scholars and the related “interpretive turn” in LSA. This pushed sociolegal scholarship in the direction of postrealist, postpositivist, and noninstrumental directions that offered little for the types of causal explanation or policy prescription valued by mainstream political scientists, at the very moment that the Law and Courts subfield was struggling to prove its social science credentials. Also relevant was the strong impulse to regionally informed, non-U.S.-centered comparative and global study among sociolegal scholars. This expanded law and society professional affiliation and intellectual focus around the world much more quickly and substantially than among U.S. political scientists in the Law and Courts subfield. Yet another factor was the resurgent refocusing of interest on the U.S. Supreme Court by political scientists, which was welcomed but not a prominent part of the sociolegal tradition. Thus, while a number of leading scholars and graduate programs kept sociolegal scholarship alive among U.S. political scientists, the linkage diminished in visibility and significance relative to previous decades.
Even so, the options for publication in interdisciplinary law and society journals and with good academic book presses, as well as for access to funding from the Law and Social Science Division of the National Science Foundation, have sustained the professional interconnections. Moreover, the alliance of political science and law and society outside the United States—in Australia, Europe, Israel, Latin America, and parts of Asia—prospered and grew. The recent growth of empirical legal studies, a classic form of mostly positivist, quantitatively oriented social legal scholarship, has won support from many LSA, law school, and political science scholars alike, so it has become a new source of vital interaction.
Substantive Areas Of Inquiry
Interdisciplinary law and society scholars traditionally have tended to define their work more by the domains of legal practice that are studied than by the epistemological or methodological approaches that they bring to those topics, although in some ways sociolegal studies have increasingly come to congregate in separate methodological camps much as in the disciplines. Most efforts to map sociolegal scholarship do focus on analytical frameworks for making sense of law in action, and that approach will be replicated here. Seven substantive areas of sociolegal inquiry to which political scientists have contributed are worth noting.
Courts
As noted earlier, the Law and Courts section of APSA has been fixated on federal court judges and, especially, on U.S. Supreme Court justices. This focus has been replicated by political scientists outside the United States as well. Much of the attention has aimed to explain what judges and justices do and why, or the relationship between high courts and other government branches. Scholarship has divided generally among three separate approaches: (1) analyses of how individual judge’s attitudes or values shape or determine judicial behavior; (2) studies that build on game theory to address the strategic calculations of judges relative to other political actors, and (3) institutionalist analyses of high courts, which draw heavily on traditions of “new institutionalism” and American political development in political science. Scholars in all three camps are active in LSA, but none of these approaches, all of which are very centered on courts and the nation-state generally, have been prominent in the sociolegal tradition.
A second area of inquiry is judicial impact studies, a topic in which political science and sociolegal studies share more in common. It is significant in this regard that a classic essay by political scientist Robert Dahl contributed a major thesis—that the Supreme Court is not highly independent and typically follows other national branches—which much contemporary study still takes as a central question or point of reference. A third area of inquiry has concerned mass perceptions of federal courts, both as a measure of institutional “legitimacy” and as an ongoing process of producing institutional legitimation.
Studies of U.S. judicial behavior have influenced some comparative cross-national study of non-U.S. courts in ways that are routinely debated among sociolegal scholars with strong regional grounding; this is an area of research growth in both LSA and political science, with a fair amount of crossover, enlisting scholars from around the world. Study of lower trial courts and of state appellate courts thrived in the 1970s and still occupies some prominent scholars, but it has been somewhat marginal in both political science and sociolegal study.
Disputing And Legal Mobilization
One of the most innovative developments in law and society scholarship began from complementary studies of ordinary disputing among individuals—over personal injury, contracts, workplace discrimination, divorce, and the like—in society. Anthropologists and sociologists pioneered influential approaches to the topic, but one major study enlisting a number of political scientists in the United States had enormous impact on the field of law and society. The key contribution of this study was to decenter courts and even lawyers, focusing instead on everyday disputes in society and the inclinations of citizens or social groups to “mobilize” legal norms and rights in “naming, blaming, and claiming” practices. Frances Kahn Zemans’s theorization of legal mobilization by ordinary citizens as a distinctive, widespread, and important form of democratic political participation put a uniquely political science spin on this type of inquiry. Much of the early study was highly behavioral and represented quantitatively, but such studies raised questions about how legal knowledge “constituted” legal subjects and generated a “legal consciousness” of citizen subjects that encouraged, even required, more qualitative study. This generated a great deal of sociolegal study beginning in the 1980s but, not surprisingly, relatively little by political scientists.
The biggest impact of disputing studies for political scientists was around the subject of group disputing, whether framed as studies of law and social change, law and social movements, or legal impact. The earliest and most conventional inquiry centered on the impact of reform litigation in the U.S. Supreme Court. Study of reform litigation and group politics—whether interest groups or social movements—led to a wide range of approaches to organized legal mobilization. These two general frameworks, sometimes categorized as top down (judicial impact) and bottom up (legal mobilization) approaches, remain vital areas of study and debate among political scientists in the sociolegal tradition. The legal mobilization approach to group struggle also stimulated much study about politics constituted by rights-claiming specifically, which often is bound to a focus on law’s constitutive power; this inquiry also has enlisted some political scientists.
Administrative And Regulatory Politics
Both political scientists and sociolegal scholars have undertaken considerable study of law and politics of administrative and regulatory state institutional practice. However, there has been surprisingly little direct overlap, in part because the topic does not fit the “court-centric” thrust of the Law and Courts section while law professors have tended to dominate sociolegal studies in this area. That said, some very prominent political scientists have contributed important sociolegal studies of administrative and regulatory politics. Many of them have been associated with the Center for Law and Society at the University of California, Berkeley, where a strong tradition of policy-oriented and institutional study of the welfare/ regulatory state has thrived since the 1970s.
Criminal Process
Attention to lower criminal courts, criminal plea bargaining practices, and the overall institutional structure of criminal justice in the United States was a hallmark of sociolegal studies in the 1970s and 1980s. A number of prominent political scientists made important empirically grounded analytical contributions to such inquiry. This area of inquiry generally has engaged fewer political scientists in the past several decades, and its place in the Law and Courts section has diminished. The scholarly legacy continues to thrive, however, and some innovative inquiry among younger scholars has developed in recent years.
Politics Of Law And Policy Agenda Setting
Another area of robust inquiry among sociolegal scholars has concerned the macropolitics of agenda setting and policy discourse regarding criminal, civil, and constitutional law matters. Political scientist Murray Edelman’s work on symbolic politics was a critical catalyst and template for much of this scholarship, which has been dominated by sociologists as well as political scientists. This scholarship often combines attention to elite political discourse, media coverage, public opinion, and, increasingly in recent years, mass entertainment media (e.g., movies, TV, novels).The primary contribution has been to show how legal policy discourse and knowledge is at once generated and reconstructed in mass culture, producing a politics of law that is far less rational and empirically grounded than much policy-oriented discussion assumes. Most of this research by political scientists has concerned the symbolic politics of either the Supreme Court or crime discourse and reporting, but much recent attention has been directed to civil law as well.
Legal Profession And Cause Lawyering
Sociologists have, not surprisingly, dominated study of the legal profession. Still, political scientists have conducted a fair amount of study of lawyers in the criminal process and, especially, in civil matters of divorce, torts, discrimination law, and other ordinary disputes. Studies have probed how lawyers wield power, how lawyers relate to clients and represent their causes, and how lawyers organize themselves politically around various professional interests. One very robust area of sociolegal study led but hardly monopolized by political scientists has been directed to cause lawyers, who represent movements for social justice, civil rights, and human rights in the United States and around the world. This work has produced at least five volumes of essays and one original book at the time of this writing.
Comparative Cross-National Law
Shapiro, an eminent political scientist, long has been a leader in advocating comparative sociolegal study. Nevertheless, study of law beyond the United States has lagged among political scientists, and the recent spurt of interest has been devoted almost exclusively to high courts, much of it relying on models generated to make sense of the U.S. Supreme Court. However, an impressive cohort of creative political scientists also active in LSA has begun to develop interesting comparative studies of high court politics that integrate institutionalist approaches with historical, political, cultural, and economic knowledge of regional contexts. And some comparative studies of cause lawyers, the role of lawyers in democratic development, legal reform politics, regulatory and administrative law, and constitutional structure have been undertaken by political scientists well connected to the larger sociolegal community.
Conclusion
The contributions of political scientists to studies of law and society have varied widely in different periods over the past fifty years. Since the 1980s, the once-vital relationship between political scientists in the Law and Courts section and LSA in North America have become less firm, even somewhat strained. Interdisciplinary sociolegal studies associated with the LSA have continued to proliferate in a variety of different substantive and methodological directions, expanding an ever bigger tent whose boundaries are blurred to include a plethora of increasingly unconnected intellectual subgroups. In this regard, sociolegal studies both in North America and beyond have gravitated toward inclusion of the diverse epistemological and methodological frameworks, including humanities as well as social sciences. Austin Sarat has rightly labeled the trend “vitality amidst fragmentation.” By contrast, political scientists, in North America and beyond, have not expanded or altered very much either their court-centered substantive agenda or methodological or ientations beyond traditional disciplinary boundaries in recent decades.
Moreover, interdisciplinary sociolegal scholars tend to remain more substantively oriented toward comparative crossnational and transnational legal developments as well as globally connected through professional networks than political science scholars, although the latter seem to be slowly developing greater global awareness about high courts and constitutions. For several decades, some leading political scientists have been urging and even predicting the latter trends. However, much interesting study of law and politics recently has taken place among political scientists aligned with comparative politics, international relations, and human rights, often with little reference to U.S.-focused scholarship by political science specialists in the Law and Courts subfield. At the same time, the rapid rise of interest in law and economics by law schools has provided incentives for such study of law among political scientists, thus pushing away from the diverse perspectives of approaches familiar among law and society scholars. Perhaps the ascendant orientation most likely to reconnect some political science scholars of Law and Courts to sociolegal study is related to the empirical legal studies movement—a realist inspired, positivist-oriented, quantitatively leaning movement of scholars in many ways representing a return to the earlier era of behavioral study that initially joined the two camps.
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