September 2009
LESSONS FROM CLASSIC EMPIRICAL LEGAL RESEARCH
From time to time, we like to provide reminders of the rich traditions of social scientific research on law upon which newer empirical researchers can draw. It seems to be inevitable that newer generations will continue to reinvent at least part of the wheels from the wagons of their forebears. But sometimes newer work on law seems to be proceeding in complete ignorance of what has gone before. The legal academy does not do a good job of teaching its students about what we already know of the "law in action." So here we quote briefly from an article by Carroll Seron and Susan Silbey dealing with classic empirical research on law:
"Law in action is imagined in opposition to law on the books, that is, the traditional doctrinal stuff of law (cases, statutes, constitutions) conventionally regarded as the lawyer's particular and professional terrain. . . . Reading the canon of law and society research, we noted several common themes. First, the practices and resources of law are unequally distributed and highly stratified. Studies show that social background and organizational capacity matter for access to law and the quality of legal services delivered and received. Second, what may seem aberrant malfeasance, extralegal and idiosyncratic from the standpoint of law on the books is, in practice, "normal." Third, legal activities are situated and contingent on the particularities of specific times and places. For example, . . . lawyers' work and identities depend on who their clients are, where they went to school, or whether they work in the city or the country. Fourth, as both institutionalized and discursive practice, law consists of historically and culturally developed activities regulating and legitimating the use of force in social groups. It is simultaneously word and deed. Its legitimacy is inseparable from its activity, including the possibility of material violence. Interestingly, . . . the sum of these themes is more than their individual parts."
Seron and Silbey conclude that law and society research is now in the position of making a major contribution to the social sciences, which have focused with increasing intensity on the role of context: "It is now commonplace [in social science research] to couch theory and concept in time and place and to recognize the degree to which social patterns are contingent, local, culturally embedded, and emerge from negotiating the boundaries of professional and nonprofessional transactions." Empirical studies of law "have been discovering this point . . . for generations across multiple sites of legal encounter," and so are particularly well-placed to link the discoveries of social science with the social patterning found in law.
Carroll Seron and Susan S. Silbey, "Profession, Science, and Culture: An Emergent Canon of Law and Society Research," in The Blackwell Companion to Law and Society, ed. Austin Sarat. Oxford, UK: Blackwell (2004).
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