Law Through Sociology's Looking Glass: Conflict and
                    Competition in Sociological Studies of Law

Banakar, Reza

doi:10.4135/9781446214626.n5

Cited by 18 publications

(12 citation statements)

References 16 publications

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“…A recent comparative book presents a dynamic ('law-in-action') ethnography of criminal defense in three states (Scheffer, Hannken-Illjes & Kozin 2010). Research on the assertion of state and class power in law and the criminal court cases dates back to the 1980s (McBarnet, 1981) despite repeated calls for such studies (Abel 1980;Banakar & Travers, 2005;Banakar, 2009). Rare innovative research investigates the resistance of judges to the state attempts to dictate judgments (Milburn, 2015; but see Halliday, Karpik & Feeley, 2007).…”

Section: Resultsmentioning

confidence: 99%

“…The sociology of professions and sociology of law have generated only modest knowledge about lawyers and their civic or political engagements, not to mention anti-state discourses or stands (but see Shapiro, 2002). In the sociology of law (Banakar & Travers, 2005;Banakar, 2009), the scant British, Scandinavian and US research on lawyers has paid much empirical attention to the least prestigious and worst paid end of the profession-criminal lawyers-and their relationship to their clients (for exceptions, see Dezalay & Garth, 2010;Lange, 2005;Pierce, 1995Pierce, , 2012Paterson & Teubner, 2005;Scheffer, Hannken-Illjes & Kozin, 2010;Shapiro, 2002) (see endnote 3).…”

Section: Civic and Politicized Lawyeringmentioning

confidence: 99%

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Section: Resultsmentioning

confidence: 99%

Section: Civic and Politicized Lawyeringmentioning

confidence: 99%

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“…Sociolegal research, understood as such, is part of the political struggle for determining the content, form and scope of law (cf. Banakar, 2009a).…”

Section: Discussionmentioning

confidence: 95%

“…For example, justice is defined as a moral standard, or an ethical form of judgment, which lies beyond the scope and internal operations of positive law (Norrie, 2005). This means that to deliver justice, legal reasoning and decision-making must transcend the boundaries of positive law and mere legality to satisfy an ethical form of judgment (for a discussion, see Banakar, 2008).…”

Section: Part II Two Points Of Disagreementmentioning

confidence: 99%

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Having one's cake and eating it: the paradox of contextualisation in socio-legal research

Banakar

2011

International Journal of Law in Context

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Traditional doctrinal scholarship provides an important service to practising lawyers by analysing legal rules and decisions, clarifying ambiguities within rules, structuring them in a logical and coherent manner and describing their interrelationship (Chynoweth, 2008). The systematisation and formulation of the law in terms of doctrine creates a conceptual basis for constructing a legal context that helps to determine which rules should be applied in a particular situation. In this sense, doctrinal studies emerge out of the study of legal texts (or black-letter law), which are generated by legislature, courts and other legal authorities, and feed back in to legal practice once they are used in deciding cases. The method of doctrinal research, being functional to legal practice, dominates academic law and legal education. Notwithstanding its role in supporting legal practice, the doctrinal approach is criticised for conveying a normatively closed image of law (Cotterrell, 1995, pp. 50–53), for constructing the legal context narrowly, for presenting the legal system as a body of rules which can be studied in isolation from the broader societal context of the legal system by the exegesis of authoritative texts (Bradney, 1998, p. 76; Vick, 2004), for ‘not being self-conscious about its assumptions’ (Twining, 1999, p. 44) and for cultivating what Geoffrey Samuel (2009) calls the ‘authority paradigm’. Internally, i.e. from the standpoint of the legal system and its functionaries, this paradigm (or legal context) is produced by way of self-reference and normative closure, continually reaffirming the authority of legal sources such as legal texts, previous legal decisions and/or legislation, and prioritising definitions and methods based on what William Twining called the ‘practical insider attitudes’ (Twining, 2000, p. 129; for a discussion, see Banakar, 2003, p. 8). Externally, i.e. from the standpoint of policy-makers and citizenry, it is upheld through the threat of violence against non-compliance, backed by the authority of the modern state. The authority paradigm's normative closure and its dependency on coercion encourage ‘rigidity and introspection rather than an open-minded attitude to academic methods and pursuits’ (Samuel, 2009, p. 432). It fosters an understanding of the law as a system, which exists independently of societal forces. In order to escape the intellectual constraints of the authority paradigm, many academic lawyers turn to social theory and social sciences, which in contrast to law are based on the ‘perspective of enquiry’ (Samuel, 2009; see also Banakar, 2009b). These scholars place the law in the broader sociocultural context of the legal system and study legal phenomena in relation to societal forces, which are the prerequisite for the existence of the legal system and the production of the narrow legal context of the law. However, such an evasive strategy often comes at a price.

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Fritsche¹,

Mayrhofer

Pilgram

2017

Österreich Z Soziol

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How and what is researched when law is studied as a social phenomenon not only depends on the different theoretical approaches but also on variations in scientific culture. In the European and especially in the German-speaking context, the socialscientific analysis of law has traditionally held the status of a specialized sociology or-as "Rechtstatsachenforschung" (Nussbaum 1914)-that of an auxiliary discipline of legal institutions and legal studies. As such, the moderately institutionalized sociology of law has not always shown much reference to socio-philosophical theory, in which state and law, power and norms have always constituted fundamental factors for the constitution of society (Machura 2012). In the UK in turn, the social-scientific study of law is primarily carried out by the genuine interdisciplinary socio-legal studies; there, the realisation of law in the social context as well as the contribution of law for the constitution of social realities are studied in a rather pragmatic and application-oriented way. In the US, the "law and/in society" movement declared law to be a too important social fact to leave its analysis to legal scholars; hence, an extended, transdisciplinary exchange among sociologists, anthropologists, political scientists, economists, psychologists and other scholars and practitioners dealing with the interconnection of law and society has advanced (Banakar 2009).

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Law Through Sociology's Looking Glass: Conflict and Competition in Sociological Studies of Law

Cited by 18 publications

References 16 publications

Vol 9 No 1 (2019)

Vol 9 No 1 (2019)

Having one's cake and eating it: the paradox of contextualisation in socio-legal research

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