1 Abel, Richard, Redirecting Social Studies of Law, 14 Law & Soc'y Rev. 805, 826 (1980). In this piece Abel explains the 'paralysis' of the field as a result of the fact that “sociolegal studies have borrowed most of their research questions from the object of study—the legal system … and [from] legal scholars” (at 826). For a similar analysis of the field in Britain see Colin Campbell & Paul Wiles, The Study of Law and Society in Britain, 10 Law & Soc'y Rev. 547 (1976). I have argued against this view that taking “practical” topics for investigation can lead to theoretically interesting problems and that, conversely, more “theoretical” starting points are themselves permeated by specific cultural assumptions and normative concerns. See Nelken, David, The Gap Problem in the Sociology of Law: A Theoretical Review, 1 Windsor Yearb. Access Justice 35 (1981). What is significant about current debates is that this latter point has increasingly become the crux of the argument. In an earlier prescient article, Law Books and Books About Law, 26 Stan. L. Rev. 175 (1978), Abel contributed a masterly discussion of this issue.Google Scholar

2 Macaulay, Stewart, Law and the Behavioural Sciences: Is There Any There There? 6 Law & Pol'y 149 (1984).Google Scholar

3 Kuhn, Thomas, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1970). Although disagreements between social scientists provided Kuhn with the stimulus to discover similar problems in the progress of natural science, the notion of paradigms was designed to explain why practitioners of the “hard” sciences were less dogged by controversies over fundamentals than social scientists.Google Scholar

4 See Gouldner, Alvin, The Coming Crisis of Western Sociology 52–54 (London: Heinemann, 1971; N.Y.: Basic Books, 1970).Google Scholar

5 Nelken, supra note 1.Google Scholar

6 See for example John Griffiths, Is Law Important? 54 N.Y.U. L. Rev. 339 (1979); Robert Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57 (1984); Franz von Benda-Beckmann, Why Law Does Not Behave, in H. Finkler, ed., Papers of the Symposium on Folklore and Legal Pluralism 232, 11th ICAES, Ottawa, Canada, 1984.Google Scholar

7 Leading writers such as Richard Abel, Marc Galanter, Stewart Macaulay, or Dave Trubek were at the forefront of the old paradigm and are active in current attempts to revise it. But in some of their recent work there may be detected a defensiveness about the achievements of earlier law and society studies as correct only for the period at which they were written, which can sound like a lament for a failing paradigm. See, e.g., Marc Galanter, Vision and Revision: A Comment on Yngvesson, 1985 Wis. L. Rev. 647. However, the notion of legal pluralism has always been central to Marc Galanter's work, no doubt because of his concurrent research interest in Asian legal systems. See, e.g., Marc Galanter, Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law, 19 J. Legal Pluralism 1 (1981).Google Scholar

8 For further discussion see David Nelken, Changing Paradigms in the Sociology of Law, European University Institute Conference on Autopoiesis in Law and Society, Dec. 1985 (forthcoming in the Conference Materials, ed. Gunther Teubner) and his What Next in the Sociology of Law? George Lurcey Lecture, Amherst, Mass., Mar. 28, 1986.Google Scholar

9 In the influential casebook, Lawrence Friedman & Stewart Macaulay, eds., Law and the Behavioral Sciences (2d ed. Indianapolis: Bobbs-Merrill, 1977), chapter 3, entitled On the Impact of Law on Society, is followed by chapter 4's On the Impact of Society on Law.Google Scholar

10 According to Macaulay, supra note 2.Google Scholar

11 There are numerous studies addressing or confronted by this problem. See, e.g., David Nelken The Limits of the Legal Process: A Study of Landlords, Law and Crime (New York: Academic Press, 1983), and id., Legislation and Its Constraints: A Case Study of the 1965 British Rent Act, in Adam Podgorecki, Christopher J. Whelan, & Dinesh Khosla, eds., Legal Systems and Social Systems, (London & Dover, N.H.: Croom Helm, 1985).Google Scholar

12 See Krygier, Martin, Traditions and Their Types, paper presented to the Australian Political Studies Association Conference, Aug. 1984.Google Scholar

13 This is a somewhat inadequate summary of the approach to law taken by critical legal scholars. Although there is as yet no good introduction to the underlying assumptions of these writers, some insights may be gained from David Kairys's The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982), and the 1984 Stanford Law Review special issue (vol. 32, nos. 1–2) on critical legal scholarship.Google Scholar

14 See Goodrich, Peter, Rhetoric as Jurisprudence, 4 Oxford J. Legal Stud. 88 (1984).Google Scholar

15 Thompson, Edward P., Whigs and Hunters (Harmondsworth, Eng.: Penguin, 1975; N.Y.: Pantheon Books, 1975), “‘law was deeply imbricated within the very basis of productive relations which would have been inoperable without this law’” (at 261), and cf. E. P. Thompson, The Poverty of Theory 288 (London: Merlin, 1978; N.Y.: Monthly Review Press, 1978).Google Scholar

16 See, for an extreme view of this CLS conception of law, Peter Gabel, Reification in Legal Reasoning, in 3 Research in Law and Sociology 25 (Greenwich, Conn.: JAI Press, 1980).Google Scholar

17 See especially David Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984).CrossRefGoogle Scholar

18 Williams, Raymond, Marxism and Literature (Oxford: Oxford University Press, 1977); G. A. Cohen, Karl Marx's Theory of History (Oxford: Oxford University Press, 1978; Princeton, N.J.: Princeton University Press, 1978); Richard Kinsey, Marxism and the Law, 5 Brit. J. Law & Soc'y 202 (1978); Hugh Collins, Marxism and Law (Oxford: Clarendon Press, 1982; N.Y.: Oxford University Press, 1982); and Steven Lukes, Can the Base Be Distinguished from the Superstructure?in D. Miller & L. Siedontop, eds., The Nature of Political Theory (Oxford: Oxford University Press, 1983).Google Scholar

19 See the articles by Robert Gordon and Franz von Benda-Beckmann, both cited supra note 6.Google Scholar

20 Thus, while a critical legal scholar such as Robert Gordon insists on the “indeterminacy” of law, he goes on to add that “the critical claim of interdeterminacy is simply that none of these regularities are necessary consequences of the adoption of a given system of rules.” Gordon, supra note 6, at 124. Whilst expressing some uncertainty whether law is in fact influential, by diffusing legal consciousness through society (at 121) he soon makes up his mind that the forms which go into the “constitution of legal relations are manufactured, reproduced and modified for special purposes by everyone, at every level all the time.”Id. at 123. Similar ambivalence within the critical camp may be detected in the debate between Kennedy and Gabel that introduces the Stanford Law Review special issue, supra note 13 (see Peter Gabel & Duncan Kennedy, Roll Over Beethoven, at 1). On the other hand, writers such as John Griffiths, supra note 6, whose disillusion with law's effects stems more directly from a review of empirical sociological findings, also create ambiguity by affirming both that law's effects are unimportant or undemonstrable and that law nonetheless plays a vital role as a “collective good” which allows society's members to cooperate without the fear of “free-riders.”Google Scholar

21 Dworkin, Ronald, Law as Interpretation, 60 Tex. L. Rev. 527 (1982).Google Scholar

22 See, e.g., Bernard S. Jackson, Semiotics and Legal Theory (London & Boston: Routledge & Kegan Paul, 1985).Google Scholar

23 Joseph, Raz, Practical Reason and Norms (London: Hutchinson, 1975).Google Scholar

24 See Galanter, Marc, Justice in Many Rooms, supra note 7; John Griffiths, What Is Legal Pluralism? paper presented at the meeting of the Law and Society Association, Amherst, Mass., June 1981; and the important papers by P. Fitzpatrick: Law, Plurality and Underdevelopment, in D. Sugarman, ed., Legality, Ideology and the State (London: Academic Press, 1983); Marxism and Legal Pluralism, 1 Australian J.L. & Soc'y 45 (1983); and Law and Societies, 22 Osgoode Hall L.J. 115 (1984).Google Scholar

25 See Nelken, David, Law in Action or Living Law? Back to the Beginning in the Sociology of Law, 4 Legal Stud. 157 (1984).Google Scholar

26 Durkheim, Emile, The Division of Labor in Society, trans. George Simpson (New York: Free Press, 1964). “The same method must be followed in ethics. A moral fact is normal for a determined social type when it is observed in the average of that species; it is pathological in antithetical circumstances. That is what makes the moral character of the particular rules vary; they depend upon the nature of social types.”Id. at 432. For an illustration of the way Durkheim employed this idea in political controversy, see Steven Lukes, Durkheim's Individualism and the Intellectuals, 17 Pol. Stud. 19 (1969).Google Scholar

27 Habermas, Jurgen, Theory and Practice, trans. John Viertel (Boston: Beacon Press, 1973; London, HEB, 1974); Roberto Unger, Knowledge and Politics (New York, Free Press, 1975), and Law in Modern Society (New York: Free Press, 1976); and Alasdair Mclntyre, After Virtue: A Study in Moral Theory (London: Duckworth, 1981; Notre Dame, Ind.: University of Notre Dame, 1981, 2ded. 1984). On this view the sociology of law becomes almost a form of secular natural law, in pursuit of the “immanent rationality” which connects law and social life (to use Gordon's phrase in his paper prepared for the European University Institute Conference on Autopoiesis in Law and Society, R. Gordon, Questions of a Fascinated Skeptic, 7.)Google Scholar

28 O'Hagan's title is rhetorical. His aim is to show why even within a broadly Marxist perspective law must be seen as essential.Google Scholar

29 It is probably no accident that both writers are slightly maverick in the research interests which bring them to this field. This is especially true of Henry, who comes to the sociology of law having previously investigated informal organization in the context of the “black economy,” amateur crime, and self-help organizations. O'Hagan too is unusual in bringing together ideas from social theory and jurisprudence in a re-examination of Marxist ideas about law.Google Scholar

30 The stimulus for this way of reading Henry's book was provided by Steven Lukes's discussion of Mathew A. Crenson, The Unpolitics of Air Pollution: A Study of Non-Decision Making in the Cities (Baltimore: John Hopkins University Press, 1971), as a study operating on the margin between what he calls the two-dimensional and three-dimensional conceptions of power. See Lukes, Steven, Power: A Radical View 31 (London & N.Y.: Macmillan, 1974).Google Scholar

31 For an excellent attempt to overcome this drawback of legal pluralist work, from within the Marxist tradition, see Boaventura de Sousa Santos, On Modes of Production of Law and Social Power, 13 Int'l J. Soc. L. 299 (1985). For a historical attack on this problem, see Harry Arthurs, Without the Law: Administrative Justice and Legal Pluralism in 19th Century England (Toronto: University of Toronto Press, 1985), and see also his Understanding Labour Law: the Debate over “Industrial Pluralism”in Current Legal Problems 83 (London: Stevens, 1985).Google Scholar

32 This may be evidenced from both the title and content of textbooks in the field, such as Robert L. Kidder's Connecting Law and Society (Englewood Cliffs, N.J.: Prentice-Hall, 1983). It is hard so see how Marxist theorizing can avoid this focus either, whatever the problems it raises. See E. P. Thompson's discussion of the correspondence thesis in Marxist theory in his The Poverty of Theory, supra note 15, at 349–52.Google Scholar

33 The mainstream approach, according to both its critics (see Gordon, supra note 6) and its sympathizers (see Robert Summers, Instrumentalism and American Legal Theory (Ithaca, N.Y.: Cornell University Press, 1982)), incorporates an amalgam of functionalist and instrumental approaches to correspondence.Google Scholar

34 Henry neglects this point, perhaps because these are linkages between powerful groups and disciplinary decision making rather than between organizational types and types of social control.Google Scholar

35 See Durkheim, , supra note 26, and Durkheim and the Law, ed. Steven Lukes & Andrew Scull (Oxford: Martin Robertson, 1983).Google Scholar

36 Sorokin, Pitirim A., 11 Social and Cultural Dynamics ch. 15 (New York: American Books, 1937).Google Scholar

37 Friedman, Lawrence, The Legal System: A Social Science Perspective (New York: Russell Sage Foundation, 1973).Google Scholar

38 See especially Karl Renner's discussion of the form and function of law in the Institutions of Private Law and Their Social Function (London: Routledge & Kegan Paul, 1976).Google Scholar

39 See, e.g., Richard Schwartz, Social Factors in the Development of Legal Control: A Case Study of Two Israeli Settlements, 63 Yale L.J. 471 (1954); Donald Black, The Behavior of Law (New York: Academic Press, 1976). This argument has of course incurred considerable criticism but its relevance to Henry's findings should have led him to give it some consideration. It would also have served to highlight the problem of drawing the boundaries of correspondence theory. Does a claim of determined and determinable non-correspondence count as within or without the theory?Google Scholar

40 See Peter Fitzpatrick's review of Henry's Private Justice, 13 Int'l J. Soc. L. 212 (1985).Google Scholar

41 Bob Hepple et al., The Making of Labour Law in Europe: A Comparative Study of Nine Countries up to 1945 (Netherlands: Kluwer, 1986).Google Scholar

42 Sally Falk Moore, Law as Process ch. 2 (London & Boston: Routledge & Kegan Paul, 1978).Google Scholar

43 See the acute discussion in Steven Lukes, Essays in Social Theory ch. 1 (London: Macmillan, 1977).Google Scholar

44 There are times when Henry's “integrated theorising” seems to conflate rather than overcome the problems deriving from analytical dichotomies between macro and micro theorizing, official and local normative orders, and structural or action (including ethnomethodological) explanations. More fruitful work on these issues has been done in anthropological studies such as John Camaroff & Simon Roberts, Rules and Processes (Chicago: University of Chicago Press, 1981); cf. Robert M. Hayden, Rules, Processes, and Interpretations, 1984 A.B.F. Res. J. 469.Google Scholar

45 As argued by Unger in Law in Modern Society, supra note 27.Google Scholar

46 See, e.g., Gordon, supra note 6, at 124: “The whole point of the critics' critique is that the 'economy' isn't something separable from the 'law' which reacts on law and is in turn reacted upon by it. The idea of their separation is a hallucinatory effect of the liberal reification of 'state' and 'market' (or public and private) into separate entities.” But for arguments that this distinction is no illusion, see Niklas Luhmann, The Differentiation of Society (New York: Columbia University Press, 1982), or from a different perspective. B. de Sousa Santos, supra note 31.Google Scholar

47 Henry, Stuart, Community Justice, Capitalist Society and Human Agency: The Dialectics of Collective Law in the Cooperative, 19 Law & Soc'y Rev. 303 (1985).Google Scholar

48 Abel, Richard, ed., The Politics of Informal Justice (2 vols. New York: Academic Press, 1982).Google Scholar

49 It is a pity that neither author refers to the insightful study by Philip Abrams and Andrew Mc Culloch, Communes, Sociology and Society (Cambridge, Eng. & N.Y.: Cambridge University Press, 1976), which bears directly on this point.Google Scholar

50 At 86–98. Whilst Tonnies can be used to support a variety of viewpoints it cannot be denied that his major argument was that the simultaneous rise of the centralized state and individual rights would depend on and accompany a decline in the power of intermediate groups and associations. See Ferdinand Tönnies, Community and Association 109, 333 (London: Routledge & Paul, 1955).Google Scholar

51 See the forthcoming papers of the European University Institute Conference on Autopoiesis in Law and Society, Dec. 1985, especially those by Luhmann.Google Scholar

52 Gabel, supra note 16.Google Scholar

53 See supra note 8.Google Scholar