INVITATION TO LAW AND SOCIETY

Introduction Everyone has some idea what lawyers do. And most people have at least heard of criminologists. But who knows what “law and society” is? A lawyer friend of mine, a really smart guy, asks me regularly, “What exactly do you people do?” Once when I was at the annual meeting of the Law and Society Association, my taxi driver was making the usual idle conversation and inquired what I was in town for. I told him I was attending the Law and Society Association’s annual meeting. His interest suddenly aroused, he turned to face me and asked with some urgency, “I’ve been wondering, when is the best time to plant a lawn?” I write this book as an invitation to a field that should be a household word but obviously isn’t. Peter Berger’s (1963) Invitation to Sociology is one of my favorite books, and I have shamelessly copycatted it for my title and for the concept of this book. I want to offer, like Berger, an open invitation to those who do not know this territory, by mapping out its main boundary lines and contours and explaining some of its local customs and ways of thinking. This mapping and explaining is more difficult in law and society than in some other academic territories, because its boundaries are not well marked and because it encourages immigration, drawing in people from many other realms. The population includes sociologists, historians, political scientists, anthropologists, psychologists, economists, lawyers, and criminologists, among others. Like the pluralistic legal cultures we sometimes study, our diversity is both a challenge and enriching. First, a disclaimer. This is not meant to be a comprehensive overview or textbook introduction to law and society. I am bound to antagonize some of my colleagues in this selective sketch of the field, as I speak in the language I know best—sociology —and inevitably favor some approaches and just as inevitably neglect others. In addition to mostly “speaking” sociology, my primary language is English. This means that besides slighting much that is of interest in political science, economics, and other fields, I include here only a tiny fraction of the excellent works written in languages other than English. I cannot possibly do justice to the whole rich terrain of our field in this small volume, and I do not intend it to be an overview of law and society’s many theories and methodologies. Instead, I hope that this book’s limitation will be its strength, as an accessible and concise presentation of a way of thinking about law. It is meant for undergraduate and graduate students and their professors, but it is also written for my lawyer friend who can’t figure us out, for my taxi driver, and even for an occasional colleague, because it is always entertaining to see others attempt to describe what we do. In the pages that follow, I will try to construct a picture of (some of) our ways of thinking by presenting a few of law and society’s overarching themes, arranged roughly as chapters. There is some slippage and overlap among the chapters, and the divisions should not be taken too seriously. What I am after here is a composite picture, a gestalt of a way of thinking, not a comprehensive inventory. I am treating this as a conversation—albeit a one-sided one—and will keep you, the reader, in my mind’s eye at all times. Partly in the interests of accessibility and a free-flowing conversation, I have sacrificed theoretical inclusiveness and instead provide many concrete examples and anecdotes from everyday life. Peter Berger (1963, 1) started his Invitation to Sociology by lamenting that there are plenty of jokes about psychologists but none about sociologists—not because there is nothing funny about them but because sociology is not part of the “popular imagination.” Well, law and society faces a double difficulty. When people don’t confuse us with experts in the care and maintenance of grass, they are likely to think we are practicing lawyers, which is—judging from the number of lawyer jokes in circulation—the world’s funniest profession. Complicating matters, some of us are in fact lawyers, but not the funny kind. The law and society mentality is broader than the specific themes I introduce here. And some of these themes are mutually contradictory and represent conflicting visions of the field. But just as all creatures are greater than the sum of their parts, there is a law and society perspective that transcends its sometimes selfcontradictory themes. One way to get at this perspective is to contrast it with how people ordinarily think about law. I do not want to oversimplify here because people have many different views of law. As we will see later, the same people think of law differently according to whether they are getting a parking ticket, suing a neighbor, negotiating a divorce, or being sworn in as a witness to a crime. But most people tend to hold up some idealized version of law as the general principle, and individual experiences that deviate from that version are thought of as, well, deviations. Law in the abstract somehow manages to remain above the fray, while concrete, everyday experiences with law—either our own or those of others we might hear about—are local perversions chalked up to human fallibilities and foibles. This view of law was brought home to me powerfully when I saw a bumper sticker on a pickup truck that read, “Obey gravity. It’s the law.” I cannot be sure, but I think the point was to underscore the inevitability and black-and-white nature of law, in a sarcastic jab at moral relativists. Like gravity, law is Law. Even when we are cynical about the law, this cynicism seems not to tarnish the abstract ideal of Law—the magisterial, unperverted, gravity-like sort. Consider jury service. If you have ever served in a jury pool or on a jury, you might have been aghast at the shortcomings of some of your peers, who might, in your view, have been less than intellectually equipped to wrestle with the complex issues being presented (and they no doubt were at the same time scrutinizing you). But, if you are like me, it is hard not to feel a certain awe for the majesty of the process and the aura it projects. The Law—with a capital “L”—in this idealized version resides in a realm beyond the failings of its human participants and survives all manner of contaminating experiences. Law and society turns this conventional view on its head. For all law is a social product, and the abstract ideal is itself an artifact of society. Many interesting questions follow: How does real law actually operate? How are law and everyday life intertwined? Where does law as abstraction come from, and what purposes does it serve? What can we learn from the disparity between abstract law and real law? And why is the idealized version of law so resilient even in the face of extensive contrary experience? Law and society also turns on its head the jurisprudential view of law usually associated with jurists and often taught in law school. This view approaches law as a more or less coherent set of principles and rules that relate to each other according to a particular logic or dynamic. The object of study in jurisprudence is this internal logic and the rules and principles that circulate within it. According to this approach, law comprises a self-contained system that, with some notable exceptions, works like a syllogism, with abstract principles and legal precedents combined with the concrete facts of the issue at hand leading deductively to legal outcomes. While this model has been updated to allow for the intervention of practical considerations in judicial decision making and some concessions to social context, this lawyerly view of law still dominates law school training and jurisprudential thought. That’s why U.S. Supreme Court Chief Justice John Roberts (2005, A10) could say at his Senate confirmation hearing: “Judges are like umpires. Umpires don’t make the rules, they apply them. . . . If I am confirmed . . . I will fully and fairly analyze the legal arguments that are presented.” Despite the famous quote long ago by one of America’s most noted jurists, Oliver Wendell Holmes Jr. (1881, 1), that “the life of the law has not been logic: it has been experience,” the view of law as a closed system of rules and principles that fit together logically has proved just as resilient in many legal circles as the layperson’s idealization. So, jurisprudence is mostly devoted to examining what takes place inside the box of legal logic. Law and society takes exactly the opposite approach—it examines the influence on law of forces outside the box. If the issue is free speech rights in the United States, jurisprudence might catalog judicial decisions pertaining to the First Amendment and trace the logical relationship between these precedents and some present case. Instead, a law and society scholar might probe the historical origins of the American notion of free speech and expose the political (i.e., extralegal, “outside the box”) nature of First Amendment judicial decision making. David Kairys (1998), for example, shows us that the common assumption that a free speech right emerged full blown from the First Amendment is a myth; that the right we associate with the First Amendment today was the product of political activism in the first part of the twentieth century, especially by labor unions; that since then it has been alternately expanded and retrenched according to political pressure and ideological climate; and, last but by no means least, that Americans’ myths about the origins and scope of our free speech right have powerful impacts on our assumptions about the exceptional quality of American democracy. So, judicial decision making on issues of free speech—in fact, the very concept of free speech—is the product of social and political context. And our entrenched mythical abstractions about free speech, while factually inaccurate, have profound sociopolitical effects. The broader law and society point here is that law, far from a closed system of logic, is tightly interconnected with society. But we can go farther. Because not only are law and society interconnected; they are not really separate entities at all. From the law and society perspective, law is everywhere, not just in Supreme Court pronouncements and congressional statutes. Every aspect of our lives is permeated with law, from the moment we rise in the morning from our certified mattresses (mine newly purchased, under a ten-year warranty, and certified by the U.S. Consumer Product Safety Commission, the U.S. Fire Administration, and the Sleep Products Safety Council, and accompanied by stern warnings not to remove the label “under penalty of law”) to our fair-trade coffee and NAFTA (North American Free Trade Agreement) grapefruit, to our ride to school in the car-pool lane on state-regulated highways, to our copyrighted textbooks, and so on, for the rest of the day. But in the form of legal consciousness, law is also found in less obvious places, like the mental reasoning we engage in when we are pondering what to do about our neighbor’s noisy dog. Law so infuses daily life, is so much part of the mundane machinery that makes social life possible, that “law” and “society” are almost redundant. Far from magisterial or above the fray, law is marked by all the frailties and hubris of humankind. Not long ago, I read a book about the imperfect nature of medical science. Surgeon and author Dr. Atul Gawande introduces this provocative volume with a personal anecdote that I quote at some length because it is both powerful and pertinent to our study of law. He writes