In this report on civil justice and the poor we seek to examine issues relevant to the sociology of law. We have studied law and poverty because this area seems to us most likely to call into question conventional assumptions about the structure, conditions and consequences of legal administration. Here, we believe, the actual operation of the legal system is most likely to deviate from received notions; and at this stage of inquiry gross deviations may be most useful in stimulating research issues and perspectives. We have emphasized the civil instead of the criminal side because sociologists have given it so little attention.

A recurring theme in the growing dialogue between sociology and law has been the great need for a joint effort of the two disciplines to illuminate urgent social and legal issues. Having uttered fervent public pronouncements in this vein, however, the respective practitioners often go their separate ways. Academic spokesmen for the legal profession are somewhat critical of sociologists of law because of what they perceive as the sociologist's preoccupation with the application of theory and methodology to the examination of legal phenomena, without regard to the solution of legal problems. Further, it is felt that “. . . contemporary writing in the sociology of law . . . betrays the existence of painfully unsophisticated notions about the day-to-day operations of courts, legislatures and law offices.” Regardless of the merit of such criticism, scant attention—apart from explorations of the legal profession itself— has been given to the sociological examination of legal institutions, or their supporting ideological assumptions. Thus, for example, very little sociological effort is expended to ascertain the validity and viability of important court decisions, which may rest on wholly erroneous assumptions about the contextual realities of social structure. A particular decision may rest upon a legally impeccable rationale; at the same time it may be rendered nugatory or self-defeating by contingencies imposed by aspects of social reality of which the lawmakers are themselves unaware.

I shall comment here on the theoretical framework Professor J. H. Skolnick suggests for studies in the sociology of law and the adequacy of the bibliography in his Social Problems article “The Sociology of Law in America: Overview and Trends.” While I welcome Skolnick's emphasis on theory and the “larger philosophical issues,” I think his theoretical orientation would unnecessarily constrict social studies of law.

Exercising its right to frame a new standard of criminal responsibility, the United States Court of Appeals for the District of Columbia declared in Durham v. United States: “An accused is not criminally responsible if his unlawful act was the product of mental disease or defect.”

Social scientists are accustomed to thinking of the family as a primary social institution. They are less accustomed to thinking of it as one of the primary “back-up institutions” of American society. A back-up institution carries out the work of some other institution of society when that other institution fails in its task. The back-up institution might have been called an “institution for redundancy,” defining redundancy with Hall as “information [or action] from one [institutional] system which is backed up by other systems in case of failure.” Thus, if the original institution fails in its purpose, some other institution takes over its tasks or goals, and fulfills its functions in either the original or a modified form.

We should all be indebted to Professor Auerbach for having broadened our horizons with the addition of numerous citations. I should like to reassure him that they were not excluded because, as he suggests, I might have “thought none of them had any value for the kind of theory . . . the sociologist of law ought to elaborate.” Many of them are doubtless “relevant” but, as I pointed out early in the article, I omitted all manner of “relevant” literature. I did not regard it as my responsibility to develop a comprehensive bibliography of “relevant” material, but rather to indicate some of the central theoretical concerns and research interests of the developing field of the sociology of law.

Sociological studies of the family, ethnographic studies of kinship and marriage, and legal accounts of family law have been neither clear nor comparable in explaining how members perceive and interpret arrangements such as “marriage” or “divorce.” These comparative studies invariably include case materials, and accounts which presuppose various linguistic and para-linguistic phenomena, meanings, and unexplicated usages. The precise character of comparable behavior remains obscure. Truncated categories translated from one language to another become verbal signals disengaged from the actual perception of social behavior and its interpretation in subsequent descriptions. The categories of different scholars are presented as equivalence classes in which the adequacy of the descriptions is never an issue because the author assumes that the reader “knows” what the author “means.” Although the categories employed describe general routine practice of members, there is little concern with the language, gestures, voice intonation, and body posturing accompanying the action scenes to which general categories refer.

A legal impact study represents an attempt to ascertain how a particular law affects the conduct and attitudes of those individuals, groups or other relevant units located in jurisdictions where that law is in force. By its very nature such a study involves one essential comparison; the comparison between actual behavior patterns in jurisdictions having the law in question and the behavior patterns which would have existed in those same jurisdictions had the law in question never been enacted. Since this comparison is one which by definition cannot actually be made, the problem for the legal impact theorist is how to estimate best what the behavior patterns would have been in a certain jurisdiction had the law in question never existed there. The legislator or court seeking to determine the actual or probable effects of a law faces a similar problem.

As any science, natural or social, goes through various stages of development, practitioners find that past conceputalizations and tools need revamping or new applications. This is in the scheme of scientific things; it is essential for progress in science. It is necessary for developing that body of knowledge and those observations and measurement techniques comprising the sum and substance of the sciences. But one question remains: when will this occur — sooner or later?

I have a terrible habit when I read fiction, especially murder mysteries, of reading the last chapter before I would normally reach it and consequently obtain the outcome to the problem being developed step by step by the author. I began reading Professor Cicourel's paper early this week when it arrived, and I should have gone to the last few paragraphs in which he states clearly the objectives of this scholarly effort, namely, that researchers undertaking any kind of investigation should shake off the use of a priori schemes, typologies, structural elements, and the like and turn their attention to how individuals go about solving the problems of day-to-day living. One should pay more attention to the respondent's solution to a social problem and thus use the respondent's replies as categories of analysis rather than using a researcher's set of categories which are based upon a presumed and articulated set of meanings. This is the major thrust of this paper to which I want to return shortly.