SOCIOLOGICAL JURISPRUDENCE: JURISTIC THOUGHT AND SOCIAL INQUIRY by ROGER COTTERRELL (Abingdon: Routledge, 2018, 256 pp., 29.99) Law is a means, not an end. Such a divergence cannot endure unless the law is in the hands of a progressive and enlightened caste whose conceptions are in advance of the public and whose leadership is bringing popular thought to a higher level. 1 This is a famous statement by Roscoe Pound in his classic article introducing the concept of sociological jurisprudence. Nevertheless, these sentences are preceded by no less important and illuminating comments: It is, therefore, the duty of American teachers of law to investigate the sociological foundations, not of law alone, but of the common law and of the special topics in which they give instruction, and, while teaching the actual law by which courts decide, to give to their teaching the color which will fit new generations of lawyers to lead the people as they should, instead of giving up their legitimate hegemony in legislation and politics to engineers and naturalists and economists. 2 A century ago, the concept of sociological jurisprudence thus emerged as part of a general belief in the scientific and intellectual leadership of modern industrial and democratic societies. It was published only two years after Ferdinand ToÈnnies's article `The Present Problems of Social Structure' 3 in which the German sociologist argued that modern society needed new techniques based on statistical data and the scientific system of social management to mobilize the human resources and capacities of the whole population. Sociology was commonly believed to contribute scientifically to both engineering the general progress of modern society and creating more social justice. It was a young science, full of hopes and expectations shared not only by sociologists but, as Roscoe Pound's article shows, other scholars, lawyers, and politicians. However, Pound's argument is more complex and combines the sociological knowledge of legal facts as an instrument for the efficient steering of society with the legitimate expectations of political leadership and legal decision making. Sociological jurisprudence was not to give priority to the engineering of modern society and hegemony of economists with their statistical data and metrics. On the contrary, it was to preserve the autonomy of politics and law by substantially transforming traditional legal knowledge. 1 R. Pound, `The Need of a Sociological Jurisprudence' (1907) 19 The Green Bag: A Monthly Illustrated Magazine Covering the Higher and the Lighter Literature of the Law (October) 607, at 611. 2 id. 3 F. ToÈnnies, `The Present Problems of Social Structure' (1905) 10 Am. J. of Sociology 569. 330 This is an open access article under the terms of the Creative Commons Attribution Licence, which permits use, distribution and reproduction in any medium, provided the original work is properly cited.
The very concept of sociological jurisprudence was to protect the social and political value of law against engineers and economists while increasing its capacity to organize modern society, control its order, and guarantee its integration and coherence. Rationality of the law as an instrument of social control and progress was to preserve its value as the legitimate political rule. New sociological methods and inquiries into matters of legal interpretation, application, and change, and their incorporation into legal education were to guarantee the persistence of the rule of law and the hegemony of lawyers, now sociologically enlightened, even in an era dominated by economic calculus and industrial engineering. A hundred years after the publication of Pound's text, Roger Cotterrell, one of the most prominent European sociologists and theorists of law, published his new book Sociological Jurisprudence: Juristic Thought and Social Inquiry. Despite using the same concept in the title, the book is neither a tribute to, nor a polemic with Roscoe Pound and the whole tradition and varieties of sociological jurisprudence established in the twentieth century. It, rather, invites a complete rethink of the concept and its possible uses and value for lawyers and jurists working and thinking not in modern and industrial, but postmodern and post-industrial social conditions. Cotterrell's contribution to the sociology and theory of law in the United Kingdom and common law culture is exceptional and one hardly can think of anyone else who has so profoundly influenced both general jurisprudence and specific socio-legal studies by exposing them to continental sociological and legal theory and history. Nearly 35 years after its original publication, Cotterrell's The Sociology of Law: An Introduction 4 still represents the most comprehensive attempt at connecting British socio-legal studies with the long tradition of continental sociology and sociological theory. The monograph The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy 5 was published five years later, in 1989, and fundamentally challenged the existing canon of British jurisprudence by reformulating its traditional themes and problems as part of more general political and social theories and philosophies. Cotterrell persisted in this attempt, and his Law's Community: Legal Theory in Sociological Perspective, 6 published in 1995, used Durkheim's sociological concepts and perspective in the realm of legal theory and jurisprudence. Cotterrell's new monograph has to be read against these two backgrounds ± the long tradition of sociological jurisprudence originating in Pound's monumental work bringing together legal practice, sociological knowledge, and philosophical pragmatism, and Cotterrell's past writings and rich engagement with both sociological theory and jurisprudence. 4 R. Cotterrell, The Sociology of Law: An Introduction (1984). 5 R. Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (1989). 6 R. Cotterrell, Law's Community: Legal Theory in Sociological Perspective (1995). 331
If Pound's sociological jurisprudence aimed to improve social control and progress by sociologically educated and informed lawyers, Cotterrell's sociological jurisprudence has a very different goal of contributing to social justice and promoting legal values, and their identification and use among jurists. Instead of an elite of sociologically enlightened lawyers leading the people to higher levels of knowledge and social progress, Cotterrell imagines a jurist who, because of the sociological insight into her job, knowledge, and practice, can have a more informed and normatively qualified view of the general idea of law, the wellbeing of a democratically self-governed society, and the political and social values associated with it. The book has a clear structure and central argument although most of its chapters contain material previously published as articles in academic journals or book chapters in edited volumes. The first part addresses the question of who is a jurist and why sociological jurisprudence informing her enterprise differs from both legal philosophy and sociology of law. While the opening chapters deal with issues of agency and knowledge, chapters in the second part mainly focus on the problem of recent changes in both law and society, especially their globalization and the emergence of transnational legal regimes, networks, and authority. The final part of the book then synthesizes these issues by making them part of Cotterrell's recurring theme of legal values and their importance for the system of positive law, jurisprudence, and legal knowledge in general. Cotterrell makes a clear distinction between his notion of sociological jurisprudence and a value-neutral and disinterested social science by stating that the former is not an academic discipline but an intellectual enterprise in the practical service of the jurist and juristic practice. Similarly, he distinguishes between sociological jurisprudence and legal philosophy detached from direct practical legal relevance and experience and driven by philosophical interests rather than juristic importance and legal practice. Making these distinctions, Cotterrell subsequently defines the role of sociological jurisprudence as giving lawyers and jurists guidance regarding the value choices involved in legal decision making which are based on the intellectually informed and value-oriented idea of law. Why sociological jurisprudence specifically? Cotterrell defines it in the following words: `Sociological jurisprudence was, and remains, an enterprise of jurists appealing to social science for aid in their own projects of analysing legal doctrine and institutions and improving juristic practice' (p. 3). There is a classic paradox drawing on the fact/value distinction in this definition because sociological jurisprudence is expected to identify values underlying the normative idea of law in the value-neutral manner of social sciences, yet, at the same time, it should guide jurists in identifying these values and making them part of value-oriented legal decision making and regulation. Indeed, this expectation that sociology will deliver hard facts by value-neutral methods, subsequently using them for evaluating and 332
improving the social conditions of human life, belongs to the rich tradition of `a humanistic' 7 sociological perspective drawing on the spirit and ethos of the Enlightenment. However, Cotterrell adopts this sociological humanism for the context of positive law and legal theory and reveals its circularity by analysing how allegedly value-neutral judgements are already affected by communal values in both law and social sciences. According to him, law is part of society's value structure, and legal ideas are inseparable from cultural values. Jurists, therefore, necessarily engage in value judgements and need to be professionally committed to specific values and correctly informed about them. Sociological jurisprudence's function is precisely to inform juristic thinking about all these value aspects and contexts of law as a social phenomenon beyond its instrumental regulation of social life. It is a jurisprudence that `is aware of its responsibility to link law's enduring value commitments to a systematic, empirically grounded understanding of the diverse contexts of legal experience' (p. 13). This seemingly modest aim that sociological perspectives should merely inform jurisprudence actually represents a very ambitious theoretical project of defining the general idea of law and its constitutive values in sociological terms so that these can be recursively used by jurists in their practical jobs and professions. Law as a matter of value judgements underpinning its job of social regulation is conditioned by a jurisprudential knowledge which identifies these values in the value-free spirit of social sciences. Cotterrell is well aware of this circularity in his central argument and attributes it to the double role of law as both craft and science which, therefore, requires of jurists the commitment to both values and expertise. Using Radbruch's idea of law, Cotterrell describes the law's value structure as having a variable geometry balancing the values of justice, order and purpose (p. 38). None of these values is absolute even if justice is fundamental and describes the specific idea of law. However, even justice as the principle of treating like cases alike and different cases differently is not sufficient and needs to be tested against the value of societal and political order which puts imaginary brakes on potentially destructive slogans, such as Fiat iustitia, et pereat mundus (Let justice be done, though the world perish). Similarly, the value of order, if not measured against justice, can easily descend into the nightmare of despotic `new orders', such as Nazism or Stalinism, which are completely unconcerned with justice as fairness and impose their idea of order by the most violent, terrorizing, and unjust means. Furthermore, the law's purpose depends on specific socio-historical context and its changeability, yet the value of justice and order are inseparable from these changes and contextualization. This variable geometry of law's central values also explains why Cotterrell insists not only on reading and interpreting legal ideas and values 7 See, for instance, P. Berger, Invitation to Sociology: A Humanistic Perspective (1963). 333
sociologically, but also practically, selecting and applying them according to their social context and specific meaning. The jurist's role may be practical and specific and consists of balancing different values against each other, yet her responsibilities require theoretical and general knowledge without which this practical art and craft would become just an ignorant improvisation. Unlike Pound, Cotterrell believes that lawyers need theory more than data. However, this privileged epistemological status of sociology in the system of positive law unavoidably raises the question of other interpretations of legal ideas and values. Why should not the same status be given, for instance, to economics, psychology, philosophy or politics? Cotterrell's answer is in the second part of the book which shows recent legal changes in the context of globalization, the rise of global legal pluralism, transnational legal regimes, non-state authorities and agencies, including criminal organizations, and transnational communal networks. These societal changes and developments of transnational and international networks and structures beyond nation states have a profound impact on law. Because sociology and jurisprudence share some general concepts, most notably system, structure, authority or culture and its plurality, sociology also appears to be the most suitable scientific vehicle by which to address problems of law's authority, plurality, transnationality, and both state and non-state structures and regimes evolving in contemporary globalized society. Without this knowledge facilitated by sociological jurisprudence, globalized law, according to Cotterrell, would be misunderstood by jurists and politicians, and its regulatory goals would be compromised. Nevertheless, the strongest argument for sociological jurisprudence does not come from the semantic and conceptual similarity between sociology and jurisprudence but from the very nature of sociology as a typically modern scientific inquiry into social reality. Cotterrell is profoundly influenced by Durkheim who examined social facts including the role of values in law and society and how, specifically, they are formulated in society and their influence on its change and development. Using the Durkheimian approach to the role of values in instrumental legal regulation and their capacity to express the identity of specific communities and cultures, Cotterrell sets for himself a double task of describing value formations and arguments in the system of positive law and promoting specific values in practical legal regulation. A prescriptive and practical juristic idea of law thus finally meets the sociological descriptive and theoretical understanding of legal values as social facts, and Cotterrell uses Durkheim's description of a value system of cultural and moral individualism as the basis of moral understanding of modern law even in its current multicultural and value-pluralistic context. Cotterrell adopts Durkheim's rationalist view of modern sociology and its relation to the morality when he says that: 334
Durkheimian morality is not just what people think in a given time and place. Sociologists can also point out what is morally (and legally) appropriate for societies of a certain type, and this depends on a sociological understanding of what is needed to ensure their integration or cohesiveness (p. 173). Like Durkheim, Cotterrell advocates the kind of sociology which is both value-neutral and committed to the ideals and values distilled from its factual findings. This study of values and ideals in their practical setting and at work recursively supports the societal realization of these values and ideals. A sociology of legal values thus constitutes the sociology of law's moral meaning including its capacity to guarantee the coexistence of individuals and different groups and cultures in a certain time and place (p. 174). According to this view, law is not a value-free but value-laden cultural phenomenon determined by specific time and space. In this effort to combine sociological descriptions and jurisprudential evaluations, Cotterrell understandably revisits two contrasting social and sociological visions of law directly traceable back to EÂ mile Durkheim and Max Weber. While Durkheim considered moral ideals and corresponding values the soul of law on which the systems of positive law of particular societies depend, Weber distinguished between instrumental and value rationality and focused on law as a technical and regulatory instrument of balancing among different societal interests and neutralizing conflicting values. Cotterrell subsequently uses this classic sociological distinction to ask his original question: whether, as Durkheim would argue, law has a soul consisting of its fundamental values, or, as Weber would claim, that modernity is defined by the triumph of law without a soul and that modern law has lost its `metaphysical dignity' (p. 206). However, these differences between the legal instrumentalism of technical rationality and the legal expressivism of values and ideals signify a more general difference between juristic images of society. Revisiting jurisprudential semantics and concepts, Cotterrell comes to the conclusion that there a basic juristic distinction between the images of society as imperium and communitas. Adding to the other classic distinctions, such as potentia/ potestas, voluntas/ratio, and iurisdictio/gubernaculum, Cotterrell states that the concept of `imperium' imagines society as a collectivity of individuals subjected to the supreme power. It can be detected in Hobbes's image of Leviathan, Bentham's command theory of law and the habit of obedience, and even Hart's model of the official and vertically structured authority of legal rules. On the other hand, the image of society as `communitas' draws on the concept of law as depending on interacting agencies and interpretive activities shaping and defining common values, beliefs, interests, and the ultimate meaning and moral authority of legal rules. The imperium/communitas distinction cannot can be simplified as the difference between the positivist authority of law in the Hartian sense and the non-positivist negotiated and interpreted meaning of law in the Dworkinian sense, not least because Dworkin's legal philosophy pursued 335
nothing but `law's empire'. 8 However, the difference between the vertical structure of law's imperium and the horizontal structure of law's communitas of shared meanings and values is very attractive because it contrasts the societal unity achieved through the power of legal authority with the unity expressed through legal ideals and values. Although the reader might be tempted to identify Cotterrell's reflection on law as communitas with his earlier concept of law's community, the very concept of communitas actually signifies an important shift from the concept of law as community to the concept of law as communication. In the context of values, law is thus perceived as an ongoing communication process in search of a better understanding of how law is to be interpreted so that society is governed more effectively and legitimately even in culturally pluralistic and diverse condition. Law as communication is considered the most valuable and efficient response to cross-cultural conversations and the best engagement with cultural pluralism. In this respect, Cotterrell concludes that:... law is not an empty vessel. It carries cultural presuppositions. It does not regulate communication channels neutrally but directs them in accordance with dominant cultural understandings. Law is a prism through which particular cultural claims are refracted in predictable ways. But this does not make law incapable of being a facilitator of communication. Because culture is not a single thing but only an aggregate of different types of social relations of community, each component of the aggregate is a site of communication, a point at which the negotiation of new understandings can be attempted when these social relations are addressed by law. Invocation of law can thus enable many kinds of cultural dialogue to occur (p. 168). Instead of simplistic prescriptions of multiculturalism, Cotterrell invites his reader to think about the multicultural condition as an enhancement of social communication about values in which law itself paradoxically communicates ever greater cultural diversity while insisting on the equal respect and dignity of all individuals living in such multicultural communities. It is exactly this paradox of constituting a culturally diverse immanent community of law by the transcultural universalistic values of moral individualism, together with the initial paradox of constituting a prescriptive jurisprudence by the persuasive force of sociological description, that makes Cotterrell's book so inspiring, not only for jurists and sociologists but anyone seriously engaging in contemporary issues and problems of global law and society. If Pound's initial concept of sociological jurisprudence was as crisis resolution at times of industrial transformation in modern society, Cotterrell invites us to sociologically rethink the legal and moral crises emerging in a global societal transformation which falls short of the idea of human progress and the image of an informed elite showing the right direction to the 8 R. Dworkin, Law's Empire (1986). 336
rest of humankind, yet presenting its own challenges and dilemmas associated with the values of humanity. Cotterrell's book reminds us that these challenges and dilemmas cannot be addressed, discussed, and resolved without value judgements and that there is no such thing as value-neutral legal decision making even in the multicultural and transnational social condition. JIRÏ IÂ PRÏ IBAÂ NÏ School of Law and Politics, Cardiff University, Law Building, Museum Avenue, Cardiff CF10 3AX, Wales priban@cardiff.ac.uk 337