UNIT 7 ROLE OF THE LAW IN SOCIETY Role of the Law in

Society

Structure
7.1 Introduction
7.2 Learning Outcomes
7.3 Basic Premises
7.4 Social Theoretical Dominions on Society and Law
7.4.1 Indian Society and Legal Transition.
7.5 Understanding Legal Transformation
7.6 Let Us Sum Up
7.7 Unit End Questions
7.8 References
7.9 Suggested Readings

7.1 INTRODUCTION
Societal transformation is influenced by the changing nature of the customs.
It also impacts the law in the context of modern political institutions.
Intersections of law and society are complex in nature. Intellectual traditions
across the globe have probed these complex connections in the shifts related
to society, laws and customs. This unit attempts to explore some of those
rudimentary, social sciences based, interdisciplinary, conceptual readings on
the interlinkages between society and law. You will learn about the
fundamental debates on sociology of law. It also analyzes the sociological
and social theoretical engagement relations on societal-legal relations. At the
same time, it maps theinterlinkages of societal and legal transformations.
Thus, the unit deals with the debates on sociology of law.

7.2 LEARNING OUTCOMES

After studying this Unit, you shall be able to:
• Learn fundamental debates on sociology of law.
• Know the debates around the disciplines, sociology and law.
• Learn the sociological and social theoretical articulations on society and
law
• Engage with the perspectives on societal and legal transformations

7.3 BASIC PREMISES

Relations of society and law needs to be understood within the larger context
social science approaches and perspectives based on humanities.
Interdisciplinary understanding is deployed by scholars to map the complex
linkages between society and legal transitions. Sociology of law produced
important readings related to the connection between societal changes and
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Understanding emergence of legal cultures. Before delving into the specificities of sociology
Law
of law, historical understanding of sociology of law will help understand the
diverse interpretations and its background related to social and political
churning in relation to the production of legal knowledge.

Sociology of law is considered as an important sub-discipline within the

grand intellectual culture of hegemonic sociology. Italian philosopher,
Dionzio Anzilotti introduced this category in the year 1892.There are
different interpretations regarding the definitional understanding of the sub
field “sociology of law.” For Javier Trevino, legal sociology is "an academic
specialty within the general discipline of sociology that attempts to explain
the relationship between law and society, the social organization of the legal
institution (order or system) ,the social interactions of all who come in
contact with the legal institution and its representatives (police, lawyers,
judges and legislators) and the meaning that people give to their legal
reality.”(Trevino, 2001) Sociology of law thus produce the context based and
empirically rich accounts of law. Sociologists who belong to the sub-field of
sociology of law read law as a social construct and attempted to delineate the
nuanced connections between society and law.
Historically, sociology of law is considered an offshoot of the “sociological
movement” within the discipline “law” in the background of post-second
world war United States. Law is therefore read as a social phenomenon and
sociology of law engages with the legal knowledge and sociological
knowledge. Sociologists study how the intersections between society and law
get reflected in the political and social transformations. There are different
opinions related to the connections and conceptual departures related to
sociology and law. Broadly, both sociology and law reflect on the larger
fields that determine individual, societal expectations, communities and law.
Sociology of law is knowledge emerged in response to transforming, social
and political currents. The critique is that sociology of law confines itself to
the theoretical realm in the field of dominant sociology and does not explore
law as an evolutionary dimension of various societies across the globe.
Sociology of law, for Georges Gurvitch, “is that part of the sociology of
human spirit which studies the full social reality of law, beginning with its
tangible and external observable expressions in effective collective behaviors
(crystallized organizations, customary practices and traditions or behavioral
innovations) and in the material basis.” (Gurvitch, 1942:61) It deals with
"external symbols or legal procedures and internal meanings.” (Brett,1944)
Law therefore is theorized as a social system. Sociologists specialized in the
field of sociology of law explore “social character of law”. Sociologists thus
examine the various facets that determine legitimacy, legislation, judiciary,
culture of legal profession etc.

There are different readings related to the emergence and transformation of

law in sociology in particular and social theory in general. Law, for Karl
Marx, is very much integral to bourgeoisie state. Ruling classes are analyzed
central in the production of legal concepts. “Retributive” legal systems, for
Emil Durkheim, are very much related to the mechanically solidarity-based
74 society. Durkheim analyzed law in the organic solidarity-based societies as
“restitutive” in its modalities. Such accounts read law as a social fact. Max Role of the Law in
Society
Weber analyzed the limited facet of juridical view that has problems in
assessing the impact of law over the society.

One of the central concerns of sociology of law is whether it can pave way to
social engineering through transcending the hiatus created by “law in books”
and “law in action”. It attempts to map when a norm is transformed into law,
whether it will be recognized by the political institutions or not. It queries
whether the state engages with it in systematic manner or not. Sociologists
considered sociology of law as a means to overcome the inherent problems
within various laws that act as hindrance to dynamic operations of various
societal aspects.
According to Max Weber, "When we speak of "law”, “legal order" and "legal
professions", close attention must be paid to the distinction between the legal
and the sociological points of view.” (Weber, 1992:1). Lon Fuller further
analyzed that "By speaking of law and society we may forget that law is itself
a part of society.” (Fuller,1968:5). Modern and postmodern readings within
the sociology of law engage with the various, theoretical and empirical
discourse in the field of social sciences.

Check Your Progress:1

1.Write about emergence of sociology of law in your own words.

2. Write Marx’s and Weber’s perspectives on law and society?

7.4 SOCIAL THEORETICAL DOMINIONS ON

SOCIETY AND LAW

Social theory of law departs from the foundational understanding of

sociology in particular and social sciences in general. Social theoretical
perspectives on law delineates legal doctrine. “...social theory has its roots in
legal theory, and the agendas of classical social theory are tied up with
jurisprudence. Contemporary social theory is struggling with many of the
same issues as contemporary legal theory is, but now with the differentiation
of disciplines, each field is more likely to go it alone. If legal theorists and
social theorists followed the development in each other’s disciplines more
closely we might avoid some blind alleys that the other discipline has already
discovered, and we might learn something in the justifications that would
otherwise go unnoticed.” (Scheppele,1994:401)

Legal doctrine encompasses laws, procedures, principle, normative-

conceptual stakes and values. It addresses questions like - what constitutes
the notion of “legal” to different aspects of life and practices? A doctrine
becomes legal "when it is created, interpreted or enforced in certain socially
established ways, through the recognized procedures and agencies". It is
noted that western legal frameworks are hegemonic and thus non-western
legal approaches have to be understood differently. Culture of the law needs 75
Understanding to be studied as well. Societal and political context of legal development is
Law
central to the understanding of the contestations between the national and
global, legal developments.

Globalization has drastically changed the enclosures that determine law and
global-local society. (Halliday and Pavel, 2006:447-470). Scholars such
Walden Bello analyzed the changing global scenario in the context of
deglobalization (Bello,2005). Globalization is pivotal in erasing the various
boundaries that differentiate various states across the globe. Law becomes the
weapon of the neoliberal nation-state in the capitalistic phase and it supports
such state in engaging with the social and political crisis driven by the
withdrawal of social security. Social theorists have studied how such
neoliberal liberal, political institutions in the capitalistic era regulate the
upsurge of the social movements that protest against the repressive,
neoliberal forms of capital.

7.4.1 Indian Society and Legal Transition

Colonial and postcolonial legal transformations have impacted India in
different ways. The change in law since traditional India to modern India
through the conduit of colonialism determine the nature of law and society in
India (Baxi, 2009). Scholars of legal transformation have probed the nuances
of these transitions. Colonialism is valorized in certain writings of scholars
such as that of Anil Seal(Seal,1068). Modernity is analyzed as an offshoot of
colonialism that have impacted the majority of the people in positive fashion.
However, there are scholars who argue that colonialism still exists in
multiple ways in the legal changes that happened in the post-independent
India.

Check Your Progress:2

1. Write on the interlinkages of social theory, society and law.

2. Write a short note on Indian society and its relation to legal transition.

7.5 UNDERSTANDING LEGAL

TRANSFORMATION
Genealogy of the pre-colonial, colonial and postcolonial construction of law
is embedded in the conflictual realm that exists between Indian conventional
laws and juridical texts. Construction based on the binary opposition such as
native/foreign operates quite differently in such articulations. Questions of
mapping the nature of law become so tedious that “those of us who have
learned humility will have given up the attempt to define law.” (Radin,
1938:1145) On definitions of law, it is observed that “nothing concise
enough to be recognized as a definition could provide satisfactory answer.”
(Hart, 1961:16). Law thus becomes difficult to be defined. (Deva, 2009:1).

Understanding law in the context of the west therefore is read in the backdrop
of institutions like “modern centralized state and its instrumentalities” and
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such scholastic manoeuvres lack the conceptual acumen to unfold the “non- Role of the Law in
Society
modern social systems such as those of peasant civilisation as tribes.” (Deva,
2009:1-2). Some of social science approaches therefore reduced the ambit of
law “by defining the forces of law in terms of central authority, courts, codes
and constables, we must come to the conclusion that law needs no
enforcement in primitive community and is followed spontaneously.”
(Malinowski cited in Deva, 2009:2). Cardozo emphasized that, “The
normative element, The regularity element, Courts and the enforcement thus
is central to such understanding of law. (Cardozo, cited in Deva, 2009).
Therefore, the social codes reproduce the spaces and practices of values and
norms and its impact on society. Social codes are categorized through its
group over the manners, etiquettes, customs etc. Each social code is
operationalized through sanctions. Social spaces are constrained through
social institutions. Social boycotting and isolation are central to the langue of
the power structures. Categorization of the penal cultures through the
constructions of primitive and modern have to be analyzed in distinct
fashion. Protean nature of the “law is the structured and crystallized form of
norms and values that are really enforced but remain hidden from the public
eye” ( Deva,2009:2-3).

Understanding of social legislation is judged through its impact on personal

laws and how it is received in highly, retrogressive social-political spaces.
Complexities of such are not so easy transitions which have tried to capture
through the epistemic/ approaches praxis-oriented hiatus via positioning
paradox between “law in books” and “law in action”. Scholars therefore
return to the quandaries related to legal knowledge. How dominant social
scientific understanding captures these nuances related to law?
Sociological understanding of law “still has no clearly defined boundaries. Its
various exponents are not in agreement as to its subjects, or the problem of
requiring solution, or its relation with the other branches of the study of law.”
(Gurvitch cited in Deva, 2009:3) Jurists of analytical school such as Austin
observed that law was the command of sovereign and ‘juridical empiricist
school’ justified the “unwritten and flexible law”. These schools therefore
opposed the efforts that deepened the understanding related to law and
societal mechanisms. (Deva, 2009:3-4).

History of the social science understanding reveals that there was criticism
against categorizing discipline within social sciences like that of sociological
understanding on law. However, doctrinal and non-doctrinal methodological
dilemmas can be explored through the transformation of juridical thinking
and its approach towards sociological jurisprudence. Ehrlich asserted that “at
the present as well as any other time, the center of legal development not lies
in legislation, nor in juristic science, nor in judicial decision but in society
itself.” (Ehrlich, cited in Deva, 2009:4) Among the significant interventions
from India is by Upendra Baxi who states - “at almost every point in
…survey, we have lamented the paucity of sociological research into legal
processes and institutions.” (Baxi cited in Deva, 2009:7). Scholars in India
re-articulated the question of elitist, social closure of law by arguing that
“their anticipatory socialization and reference group behavior make them
77
Understanding prone to think and act in the same way as the well-to-do people.” (Deva,
Law
2009:8).

Cynicism related to the modern legal institutions among the people has
provoked scholars to think whether “the degree of success of implementation
of laws and efficiency of the functioning of legal system in India do not seem
to have been studied systematically and adequately by the sociologists so far.
Nor has the impact of social legislation empirically.” (Deva, 2009:9) Deva
further observed that “establishing a meaningful and efficient communication
network between the legislation and the judiciary and the public also is an
essential task in which work in the field of sociology of law can contribute a
great deal.” Some of the social science understanding therefore emphasized
the inclusion of sociology of law in the field of legal reform. (Deva,
2009:9:14)

Post-colonial India “does not seem to have appreciably from what it was
during British rule. The foundation of this legal system were laid around
1860 when such basic laws as the Civil Procedure Code, the Criminal
Procedure Code and the Law of Evidence were put in place.”(Deva,
2009:9,22) Some of the proclivities of the Fourteenth Report of the Law
Commission pointed out the deficiency in the legal system (Fourteenth
Report of the Law Commission, cited in Deva, 2009:22) It reports that people
in India are generally ignorant about basic laws, legal system and procedures.
Moreover, the court language is not understood by the majority of the people.
Technical aspects are emphasized in the cases than the substantive facets of
the disputes. Lawyers and touts are more inclined towards protraction of
litigation than the settlement of the disputes. Innocent people are oppressed
by the dominant sections through their appropriation of the court realms and
further it led to the diffidence among people. Majority among the citizens
cannot afford legal services. Other issues related to excessive litigation,
backlog of pending cases, undetected nature of cases related to perjury and
forgery (Fourteenth Report of the Law Commission cited in Deva, 2009:22).

It is further noted that “A pernicious feature that has come to the fore in the
post-independence era is that of enacting too many laws and subjecting them
to numerous amendments from time to time. This has created a thick jungle
of laws that it is difficult for anyone to find his way. (Deva, 2009:22) For the
marginalised sections of society, “social legislation seems to remain
primarily symbolic and ritualistic. It is doubtful whether it has been
successful in reaching its objectives.” (Deva, 2009:23). Land reform laws, for
instance, suffers from weakness. (Baxi cited in Deva 2009:23). Justice V.R.
Krishna Iyer observed that “we must not only tighten our nuts and bolts and
press the accelerator but redesign the project to replace a ramshackle
machine. The renovation and re-organization of the judicial-set up involves
the sophistication of the machine incorporating modern advances in technical
knowledge, so that delay killing devices may harmonies with better
functional performance, the humanization of the system may find application
in judicial process.” (Iyer cited in Deva, 2009:25). Former President
K.R.Narayanan observed that “a reform that can be undertaken is to simplify
the legal procedures involving litigation and the disposal of cases. Law’s
78
delays are proverbial and it is in this field that reforms are urgently needed Role of the Law in
Society
not only to reduce the mounting cost of litigation but to see that justice is not
denied to people.” (Narayanan cited in Deva, 2009:26). Decline in sound
legal culture is due to “lack of political will, flexibilities, loop holes’ which
are becoming impediments for the effective deployment of legal institutions
and practices. (Deva, 2009:28).

Looking into questions like what happens when the legal system shifts from
colonial era to that of post-colonial India? Does it cause any behavioral and
attitudinal shift towards the law? Baxi analyses the manner in which
exclusion of the people operates because of their lack of knowledge about the
law. Revivalists and modernists are compared in order to understand the
nuances of their approach towards law. Some of the quandaries that haunted
them is about the nature of the law and its inclinations towards peasants and
religious questions in the Indian context. Another issue discussed was the
continuation of connections between British Indian legal system and Indian
legal system. Baxi analyzed that the anxieties of the hegemonic sections
related to legal transitions is related to vested interests of those in dominant,
power structures. Dependence/autonomy were explored as colonial baggage
on relation to such transitions. Culture of protest and disobedience, according
to Baxi, were central to the legal constructions. It is further observed that top
to down model is part of the British Indian legal system (Austinian type) and
it created its own trajectories. Thus, “law-making remains, more or less, the
exclusive prerogative of a small cross section of elites. This necessarily
affects both the quality of the law enacted and its social communication,
diffusion, acceptance and effectivity. It also reinforces the highly centralized
system of power.” (Baxi, 2009:49).
Indian intelligentsia could not engage with this transition in constructive
fashion. For Baxi, “Even the neo-Gandhian thought, including Sarvodaya
school has not moved beyond the inspiring but programmatically sterile
grandiose conceptions of lokshakti (people’s power) and lokniti (people
oriented-politics).” (Baxi, 2009:49-50). Their incompetence thus
strengthened the colonial rationale that “only enlightened groups should have
a say in the (legal) process.” (Baxi, 2009:50). Thus “Indian legal system also
follows the colonial model of reactive mobilization of the law rather than the
proactive mobilization. In the former (British Indian legal system), the citizen
is left to initiate the legal process by filing the complaint; in the latter the
state agencies initiate the legal process. Laws that attack certain segments of
the social structure in the title of justice and equity obviously need proactive
mobilization.” (Baxi, 2009:50-51) According to Baxi, “access to law means
not just access to courts as the lawyers generally think about it. It means, in a
broader and socially more relevant sense, access to law makers, to dispensers
of legal services (legal profession) and to normative and institutional
information concerning the legal system.” In addition to that “in all these
dimensions of access value, we find that the ILS is based on rather clear
violation of democratic legality.” (Baxi, 2009:51) Therefore, “one major way
in which Indian legal system violates the principles of democratic legality is
that information concerning the norms of law is not accessible easily even to
those who are affected by the law.” (Baxi, 2009:51) Baxi observed that
79
Understanding “normative law is virtually inaccessible to the most underprivileged and
Law
vulnerable groups in Indian society. Legal illiteracy of the beneficiaries of the
law thus contributes to its ineffectiveness.” (Baxi, 2009:53)

Citizen’s access to legal services thus is analyzed in relation to their

consciousness about the legal levels and substantive intervention. Profit
oriented approach of the lawyers is analyzed as continuity of the colonial
insistences related to exorbitant court fess. (Baxi, 2009:45-59) J.Duncan
M.Derrett demonstrated the struggles of the British administration and their
tedious engagements with the orthodox realm of shastras. (Derrett,cited in
Deva,2009) Rights related to revenue matters impacted the diverse group of
colonizers. It resulted in “the intellectual gap between judgements delivered
in the high courts, where some judges were English barristers standing, and
the country vakils who were supposed to advise their clients according to
them was, and to a large extent remains, marked.”(Baxi, 2009:63). It is
further observed that “judicial hierarchy was developing, a striking
dichotomy emerged between court law popular law, interacting components
we have already observed for somewhat earlier period.” (Baxi, 2009:63).
Derret explored the dominant, Brahminic culture that impacted the
administration. It noted that “the Hindu system gave everyone his place in
every possible contingency; individuality was not prized, disobedience was
anathema; functions were fixed by the caste system; and sources of pressure
(outside the wild and barely Hinduized tribes) were many.”(Baxi, 2009:63)
Cooption of the dominant castes and the interplay of homogeneity and
heterogeneity of communities connected law were explored by Derrett and it
is linked to the misunderstanding of the law from the outside and the
indigenous understanding.
Derrett also unfolded how these legal transitions resulted in the gradual decay
of the personal laws. Psychological hiatus created through the perceptions of
foreign and native law is also analyzed in this context. Gradually, it resulted
in the confluence of English type laws and personal laws. Legal authority of
Shastras was central to such legal transformation. It also led to the clash
between textual laws and non-textual, customs. (Derrett, 2009:60-72).
Economic life is also analyzed as something that needs to be understood
through sociology of law. (Swedberg, 2003:1-37) It is pointed out that
sociological research on law and economy should concentrate on social
networks and regulation and the notion of social that impinge law and
economy can be studied through that kind of an understanding unlike the
Weberian take on law and society. (Cotterrell, 2013:49-67). On the other
hand, James S Coleman suggested “theory of purpose action” as central to
social theory and through methodical individualism and denial of holism and
further argued for a shift of social theory and research from “individual
actions to that of macro social functioning.” (Coleman, 1986:1309-1335).

Sovereignty is also being questioned in the age of the new, global institutions
and “world peace through law.” (Gessner, 1995 :85-96). Colonialism and
postcolonialism have become the key words of contemporary scholarship on
society and law. Eurocentric approaches are being criticized through the
schools such as Third World Approaches to International Law. Imperialism
80
and larger questions of immigration/emigration have also become part of Role of the Law in
Society
current socio-legal debates. It is also critiqued that “...the more sociologists
of law -like any other empirical scientists-ignore the demands of “pure
science” in order to produce “socially relevant” results, the more funding
they will get for their research but less they will contribute to theoretical
progress, and hence to only really “thing” a science can bring forth.”
(Griffiths, 2017:125). At the same time, “...fields of social-scientific studies
of law and the fraught relationship between law and anthropology, it seems
that a proliferation of fields and blurring disciplinary boundaries has resulted
in a situation bearing striking similarity with situations of legal pluralism.”
(Anders, 2015:420).

7.6 LET US SUM UP

This unit introduces the learner to the fundamental debates on the
intersections related to the disciplines such as sociology and law in order to
explain the relations between society and law. It also provides a fundamental
understanding about the sociological, social theoretical and interdisciplinary
readings that reflect on society, customs and laws. Nature of the legal
transformation is discussed through such disciplinary perspectives. Broadly,
it helps understanding of law and society in the light of the pioneering
theoretical traditions that examined society and law.

7.7 UNIT END QUESTIONS

1. Discuss the debates on emergence of sociology of law.
2. Critically evaluate the social theory in the context of society and law.
3. Write an essay on legal changes in India.

7.8 REFERENCES
• Anders, Gerhard (2015) ”Law at its Limits: inter disciplinarily between
law and anthropology”, sThe Journal of Legal Pluralism and Unoffical
Law, Vol.47, Issue.3,pp.411-422
• Banakar, Reza (2011), “The Sociology of Law”, University of
Westminster, London, UK. Retrieved December 12. 2020
https://sociopedia.isaportal.org
• Bello, Walden (2005) Deglobalization: Ideas for A New World
Economy, Zed Books
• Brett,G.S(l 944) "The sociology of law" , University of Toronto
Quarterly, Volume 14, Number 1,pp.105-107
• Coleman, James S. (1986) ”Social Theory, Social Research and a Theory
of Action”, American Journal of Sociology, Vol.9,No.6,pp.1309-1335
• Cotterrell, Roger (2013) ”Rethinking ”Embeddedness”: Law, Economy
and Community”, Journal of Law and Society, Vol.40, No.1,pp.49-67
• Derrett,J Duncan M(2009) “Administration of Hindu Law by the
British”,In.Indra Deva(edited) Sociology of Law, New Delhi: Oxford
81
Understanding University Press,pp.60-72
Law
• Deva, Indra (2009) Sociology of Law, New Delhi: Oxford University
Press
• Gessner, Volkmar (1995) ”Global approaches in the sociology of law:
Problems and Challenges”, Socio-Legal Studies, Vol.22, No.1,pp.85-96
• Griffiths, John (2017) ”What is Sociology of Law (On laws, rules, social
control and sociology), The Journal of Legal Pluralism and Unofficial
Law, Vol.49, Issue 42,pp.93-142.
• Gurvitch, Geogres (1942). Sociology of Law, New York,
Philosophical Library and Alliance Book Corporation
• Halliday, Terence C and Pavel Osinsky (2006) ”Globalization of
Law”,Annual Review of Sociology,Vol.32,pp.447-470
• Machura, Stefan (2001)"German Sociology of Law", The American
Sociologist , pp.41-60
• Scheppele,Kim Lane(1994) ”Legal Theory and Social Theory”, Annual
Review of Sociology,pp.383-46
• Seal, Anil. (1968) The Emergence of Indian Nationalism: Competition
and Collaboration in the Later Nineteenth Century, Cambridge.
• Swedberg, Richard. (2003) ”The Case for an Economic Sociology of
Law”, Theory and Society, Vol.32, Issue.1,pp.1-37
• Trevino, Javier. (2001) "The Sociology of Law in Global Perspective",
The American Sociologíst Vol.32, No.2,pp.5-9

7.9 SUGGESTED READINGS

• Deva, Indra. (2009) Sociology of Law, New Delhi: Oxford University
Press.
• Trevino, Javier. (2001) "The Sociology of Law in Global Perspective",
The American Sociologist Vol.32 ,No.2,pp.5-9
• Scheppele,Kim Lane(1994) ”Legal Theory and Social Theory” ,Annual
Review of Sociology,pp.383-46

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