The Law and Society Movement

Author(s): Lawrence M. Friedman

Source: Stanford Law Review , Feb., 1986, Vol. 38, No. 3 (Feb., 1986), pp. 763-780
Published by: Stanford Law Review

Stable URL: https://www.jstor.org/stable/1228563

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ESSAY

The Law and Society Movement

Lawrence M. Friedman*

I.

The law and society movement is the scholarly enterprise that

explains or describes legal phenomena in social terms. To put it
another way, it is the scholarly enterprise that examines the rela-
tionship between two types of social phenomena: those conven-
tionally classified as "legal" and those that are classified as
nonlegal. "Law and society movement" is a rather awkward
term. But there is no other obvious collective label to describe
the efforts of sociologists of law, anthropologists of law, poli
scientists who study judicial behavior, historians who explore
role of nineteenth century lawyers, psychologists who ask why
ries behave as they do, and so on. People who carry on law a
society research vary greatly in methods and outlook. What t
share is a general commitment to approach law with a vision
with methods that come from outside the discipline itself;
they share a commitment to explain legal phenomena (thou
not necessarily all legal phenomena) in terms of their so
setting.
Of course, this does not make a sociologist of law any differ-
ent from all sorts of other people, including lawyers, politicians,
ordinary citizens, or street-corner cynics, who sense the presence
of "social forces" in the workings of the legal system. And most
lawyers (even law professors) would probably find it easy to agree
to some formulation (preferably vague) that asserts that political
and economic events obviously bear on the making and enforce-
ment of law. After all, everybody is aware of lobbyists and inter-
est groups. What makes the law and society movement different,

* Marion Rice Kirkwood Professor of Law, Stanford University. I want to thank Robert
Ellickson, Samuel Gross, Robert L. Rabin, Deborah Rhode, David Rosenhan, and William
Simon for their helpful comments.

763

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764 STANFORD LA W REVIEW [Vol. 38:763

perhaps, is that its scholars try to be systematic about their su

ject; they try to achieve rigor in method or theory, and they a
tempt to separate normative from descriptive issues. Typicall
their object of study is living law-the study of how the legal sy
tem actually operates. Do judges sentence white collar crimina
to shorter or longer terms than burglars? How much do busi
nessmen actually know about the law of contracts, and what di
ference does it make to them? What is the actual effect of
licensing laws on the quality of professional services? The meth
ods are usually those of the social sciences. And the data go be-
yond the conventional "authorities"-that is, appellate cases
statutes, treatises of law.
In this brief essay, I want to make a few comments on the
history and nature of the movement, its strengths and weak-
nesses, and its place in the law schools.

II.

The social study of law does not go back much more than a
century. Of course, there are insights and viewpoints in older
texts, in Montesquieu, or in Jhering, or for that matter in Aris
totle. But the law and society movement, in the sense I use the
phrase, really begins in the nineteenth century, with figures lik
Sir Henry Maine, who published Ancient Law in 1861, and Max
Weber, who was one of the founding parents. The movemen
depends on two rather modern ideas. The first is that legal sys-
tems are essentially man-made objects-social creations, in other
words. The second, which is closely related, is the idea of cul-
tural relativity. Law varies in time and space, according to the
conditions of the culture in which it is embedded.
Obviously, these two ideas contradict the bases of legitimacy
of most premodern theories of law. These theories were on the
whole variations on two great themes: the sacred-law theme and
the natural-law theme. Both themes had in common the idea tha
law was, in essence, not man-made. In the last two centuries or
so, sacred law and natural law have lost most of their magic; bits
and pieces survive, of course, and are quite important in modern
law; but the legitimacy of modern law is much more instrumental,
pragmatic, and relativistic. The law and society movement pre-
supposes an instrumental theory of law. And without a concep-
tion of law as essentially a human institution, a product of
culture, no social science of law is thinkable.

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February 1986] LA WAND SOCIETY 765

But instrumentalism, though it may be a necessary trait o

cial science, is not a necessary trait of the thing that social sc
tries to study. People inside society do not always take a
logical view of their own legal system. Their ideas about la
not necessarily pragmatic, scientific, or rational. Law is a
system as well as a human instrument; and the public mos
nitely sees it that way.
The law and society movement relates to the legal sy
more or less the way the sociology of religion relates to re
life. Sociologists of religion study religion as a social phe
non. It is no part of their business to decide whether thi
gion, or this dogma or belief, is true or false, moral or im
Religions tre systems of beliefs and behaviors that rest on
tradition, emotions, moral postulates. They can also be st
as aspects of life in society. The same is true of legal sys
They can be studied as social phenomena, without passing
ment on their normative content.

This point easily gets lost in the shuffle. And not without
some reason. Academics, whose interest in law goes beyond pro-
fessional training, usually have some inner drive, some program
that is strongly normative. In Europe, most law and society peo
ple started out in legal philosophy, and drifted over in the direc
tion of social science. In the process, they never quite molted old
skins. They never decisively passed out of sociological jurispru
dence into the sociology of law. But between a philosophy of law
that is "social" and a sociology of law, there is a world o
difference.
Of course, it is natural for scholars to be concerned with
moral problems. The line between the "science" of law and the
normative reasons and postulates of legal scholars can easily be-
come indistinct. And, though it is all very well to say that the law
and society movement has no normative program of its own, that
it is interested only in knowledge, in fact, there is something of a
program. The very idea of an objective, nonnormative study of
law casts doubt on the notion that there are "right" or "wrong"
legal answers. Everything, rather, is or can be shown to be so-
cially contingent. But an "outside" science of law makes impossi-
ble an "inside" science of law, or a Rechtswissenschaft-that is, a
discipline internal to the legal system, which derives its reasons
from "legal," autonomous principles. A similar point could be
made about the sociology of religion. The idea of an objective

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766 STANFORD LA W REVIEW [Vol. 38:763

study of religion, which examines how religions change over

and which explores the relationship between belief systems
culture, makes it harder to accept claims of supernatural auth
ity. Cultural relativity tends to weaken the grip of absolute
tems, in general. But cultural relativity, in one form or anot
is at the very core of the social sciences.
In short: The law and society movement sits on a rather n
row ledge. It uses scientific method; its theories are, in princ
scientific theories; but what it studies is a loose, wriggling, chan
ing subject matter, shot through and through with normat
ideas. It is a science (or a would-be science) about someth
thoroughly nonscientific.
Exactly what sort of a "science" does the law and socie
movement generate? A lot of the work, to be sure, meets the te
of scientific method: rigorous observation of how insurance
justers settle claims, laboratory experiments that simulate ju
statistical analysis of arrest data. But scientific methods are
enough to make law and society a science-in at least one v
tough and demanding sense: a body of universal "laws" in
mode of physics or geology. To begin with, it is striking ho
often scholars go back to the founding fathers, to Marx, We
or Durkheim. Dozens of articles every year cite these men
footnote one, and address them again in the final sections of
paper. Natural scientists do not hark back endlessly to Greg
Mendel or Lavoisier; astronomers do not revert to Kepler
Galileo. The natural sciences are fundamentally cumulative; th
build on prior knowledge; they "progress," in the most liter
sense of the word. Of course, they do not always move "f
ward"; and their development, as Thomas Kuhn and others h
argued, is more complex than the naive layman realizes. Non
theless, when all is said and done, the natural sciences do cum
late knowledge. Can the same be said about the law and socie
movement? In large measure, the answer is no. The work do
not, in general, build or grow; it travels in cycles and circle
round and round.
Why should this be so? There are some obvious social rea-
sons. To begin with, research itself-hard, grubby research-is
less honored among scholars than "theory" or "model-build-
ing"; this tends to drain talent from the work of building up, and
critically examining, a concrete body of knowledge. Also, the
field is weak in replications. If there is not much prestige in em-

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February 1986] LA WAND SOCIETY 767

pirical research, there is even less prestige in replications

fessor A publishes an analysis of the juvenile court of J
County, the last thing Professor B wants to do is run ex
same test in Calhoun County. She might, of course, be
to trump Professor A, but she will do this by designing
(read: different) plan, and carrying it out in a way that
(read: different) theoretical interest.
But these are only partial explanations. The real reaso
deeper; that is, they flow from the nature of the legal syst
self. There is a qualitative difference between studying
and forces in the physical world and studying legal sys
be sure, many aspects of collective or social behavior can
ied quite rigorously. But the problem with "law" is that i
be unambiguously defined; it cannot be specifically mar
from the rest of the social world.

There is a lively debate over whether "law" is a universal as-

pect of social life. Does every society have something that can be
called a legal system? The debate is not pointless; on the other
hand, there is no definitive answer, nor can there be. It is simply
a question of definition and of where to draw boundaries, and the
answer depends on how the observer chooses to define "law"
and "legal system," and for what purpose. Dozens of scholars
have struggled with the concept of law. Clearly there is no objec-
tive definition of law, or any clear, physical boundary, since the
point of view of the observer determines the definition. Yet there
are social phenomena that do not share this problem. A general
sociology of sexual behavior lends itself, at least potentially, to
greater precision because (unless I am wrong) it is possible to
describe and define some forms of the behavior in question in a
fairly clear, precise, and unambiguous way. Not that law is a
uniquely difficult subject; I think a universal, "scientific" sociol-
ogy of education, or collective behavior in general, would be
equally impossible. I suspect the same would be true for many
rather general social processes and functions.
As everybody knows, the law of one country is not the same as
the law of other countries, in an absolutely literal way. Law is the
only social process studied in universities that completely lacks
any reasonable claim to universality. French students study
French law. They may also study medicine, chemistry, or eco-
nomics; and what they study will not be different, in essence,
from what is studied all over the Western world and beyond.

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768 STANFORD LA W REVIEW [Vol. 38:763

There is no unique "French" astrophysics. But French law

uniquely French; and the same is true of the law of every orga
ized political community. There is, of course, a uniquely Fren
history; and so too of every other country. But this only accentu
ates the point: Few people believe in a "science" of history
universal, general, abstract history, above and beyond the deta
of particular nations. There is, to be sure, a science of anthrop
ogy-the study of cultures; and anthropologists look for ways
describe and generalize cultures, despite their great variabilit
There is also a science of language, independent of the multipl
ity of languages. Yet the relationship of law to culture is an u
solved problem. A country like Morocco could not, by decree
suddenly transform the language spoken in the streets; and t
idea that the king of Morocco could import German grammar
theJapanese verb system is ludicrous. But Morocco could drast
cally alter at least the formal aspects of its legal system; it cou
borrow the French Civil Code, if it wished, or aJapanese versi
for that matter. To be sure, the borrowed law would not nec
sarily "take"; but it might have some impact on social life, and th
impact is as far as we can tell not amenable to prediction or ex
plainable in general terms.
It is true, of course, that there are certain basic social func
tions that, by and large, are carried out by people and institution
usually thought of as legal. Conflict-resolution is an obvious ex
ample. Possibly, at some level of abstraction, these functions a
common to all human societies. Studying these might open
door to a truly universal science of law. The trouble is th
human societies differ greatly in the way they handle even "u
versal" functions, if there are any. The "legal system" may ha
nothing to do with these functions in one society and a lot to
with them in others. In some societies, marriage and divorce a
legal processes; in others, couples begin and end relationsh
without formalities or with formalities quite different from ours
No universal "science" of law can be based on universal
functions.

I make this point, paradoxically, not to bury the law and soci-
ety movement, but to praise it, or, at least, to put it in its rightful
(and manageable) place. When I say that there is no general sci-
ence of law, I do not mean to disparage work on litigation and
courts in Europe and the United States, or on procedures in juve-
nile courts, or on criminal justice in the early modern period, or

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February 1986] LA WAND SOCIETY 769

on village communities in Turkey. The study of some disc

part of the legal system or of some communities or gr
communities can be "scientific," so long as the object of st
bounded and defined in terms of time and place. Such s
are not only possible; they are highly desirable. There is n
son why a team of scholars could not, and should not, desig
carry out a study of how labor courts in West Germany, let u
reach their decisions. The study, if properly done, will no
tell us a lot about the German legal system, or about labor
agement problems in Germany. If it is a very good study
grounded in hypotheses at least of the middle range, it m
suggest some insights into labor courts in Europe in gene
might inform us, too, about the meaning of law within that w
class of societies of which Germany is a reasonable examp
about those social behaviors that cluster about the employ
relationship in modern Europe, or about decisionmaking i
tings like that of the labor courts.
What I exclude, then, is a kind of macrosociology of la
experiment in grand theory that tries to sweep every little
legal matter into its net. To be sure, there have been some
attempts. The best of the lot are admirable, learned, and
inely enlightening. There is, for example, Max Weber's ast
ing achievement. But even Weber's sociology of law do
aim at a universal "science" (as, for example, economist
Weber's work is essentially a sociology of formal systems o
thought, but with specific reference to the "rational" lega
tems of modern capitalism. Weber also added insights abo
amazing range of subjects: the legal profession, law and th
of capitalism, and so on. But he avoided abstract model-
ing. There are no axioms or universal propositions in his
instead there are definitions, classifications, and typologie
propositions are, on the whole, carefully qualified and hed
everything is deeply rooted in time and place, and in the ri
of the social matrix. His sociology is concrete, historical,
bound. Indeed, that is its value.
The point is this: People who study law socially are like
people in research institutes devoted to "areas"-Latin Ame
or Eastern Europe. Nobody claims that Latin American Stu
is a "science," or a "discipline," or even a united subject-m
There cannot be a "theory" of Latin America or of Easter
rope. But it is useful, for all sorts of reasons, to have an organ

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770 STANFORD LA W REVIEW [Vol. 38:763

tion, a framework, an institution in which to study Latin Amer

or Eastern Europe. The same is true of people concerned w
law and legal systems. They can learn from each other, e
without a common theory or discipline. (In fact, we lack leg
"area studies." There are few institutes, few formal organ
tions in this country to serve this purpose.)
At this point, then, there is no general science of law, b
there are studies about an impressive range of aspects of
The real question is not what scientific "laws" the law and soc
movement has discovered (none), but whether it illuminates
portant areas of law, or sheds light on significant social proce
or problems. Here one can tick off a great many examples: s
ies of the way juries operate, studies of "legalization" within
ministrative agencies, longitudinal studies of the busines
courts, studies of what no-fault divorce is doing for or aga
women, studies of the operation of tribal court systems, eva
tions of the California determinate sentencing law. Some
these studies are extraordinarily interesting and important
course, the studies do not add up to a general theory. They r
ate out to illuminate social processes in various aspects of la
They inform us about criminal justice, or antitrust, or disp
resolution in business. They should be judged on the basi
their utility and theoretical value-but within their partic
sphere.

III.

The studies I have referred to have a feature in common:

They are studies within one "field," or one particular country, or
a small group of countries. They assume a given social context.
Comparative and historical data are of course always important.
Rigorous study requires some sort of control group, or some de-
vice to imitate or simulate a control group; comparisons with
other societies, or with other periods, serve roughly this kind of
function. It is a weakness of, say, law and economics, that it tends
to be blind to culture and context; it does not test its theories and
findings, by and large, against other times and places.
Most work in the law and society movement in fact concerns
recent times, and most of it concerns the Western countries.
This is, then, the basic subfield. The countries in question have a
number of features in common. They all have formal court sys-
tems, most of them relatively independent of the central govern-

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February 1986] LA W AND SOCIETY 771

ment. They have large public sectors, and have developed

time into some sort of regulatory welfare state. They hav
economies; there is a vigorous private sector, but there i
regulation of business and a public or nationalized sector
respect and guarantee extensive rights of private proper
they have also set severe limits to those rights. They hav
oped codes of basic rights, with special emphasis on crimin
They allow citizens to participate in the process of making
least through lobbying and pressure group activity. I
these countries, "public opinion" in some form has an in
on the making and enforcement of law. All of these cou
have organized legal professions, of one type or anoth
they have legal traditions that, though divisible into "civil la
"common law" or other categories, do have a history of
dialogue and of social and economic interaction.
These legal systems are exposed, in a particularly naked
to influences that flow into the legal system, however d
These are certainly not "stateless" societies. Legal syst
these societies are enormous, ubiquitous, and active. They
constant turmoil and change. Of course, there is vigorou
pute and debate about how much flows in and how much
out of the legal sector; about the influence of class, race,
and the like on the operation of the system; and even abou
(if anything) it means to flow "in" and flow "out." But it
clear that-unlike (perhaps) traditional legal systems (an
haps authoritarian legal systems)-"public opinion"
broadest sense, or those values, opinions, attitudes, and ex
tions that make up the legal culture, constitute funda
building blocks of law.
To put it another way, the main motor force of legal c
derives from concrete demands on the institutions that m
the legal system. The legal system is forced, because of it
tion of exposure, to make some sort of response to th
mands. Demands will be heard and processed in some way
sort of legal act will (very often) be produced. (It can, of
be a flat refusal to change or to move.) Legal institutio
tend to transform demands as they handle them; that is
change their terms, they translate them into "legal" con
they work on them in patterned ways. How much this alt
nature and meaning of social demands is an empirical que
In any event, the output of the legal system-laws, decisio

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772 STANFORD LA W REVIEW [Vol. 38:763

ders, and administrative behavior-leads in turn to more social

change, which affects the legal culture, influences demands on
the system, and starts the cycle over again. What is appropriate
to such societies, in short, is a dynamic model of law, if such a
phrase is called for.
This picture suggests some general themes that might guide
research, or at least ways to arrange and order what has been
done into a more or less coherent scheme. It suggests, in other
words, ways in which to define the field of law and society studies,
and points toward a few meaningful boundaries. The work done
so far falls into a few broad classes. To begin with, there are
studies dealing with the production or shaping of law within a
given society: how concrete events, situations, expectations,
thoughts, and actions impinge on "legal" institutions and change
their behavior. Where do demands on the legal system come
from? What causes them? What forms do they take? Next, there
are studies of the operation of the legal system itself, its internal
workings, and studies of the transformation process-what hap-
pens to raw demands and raw "fact situations" when they get
into the hands of legal professionals. Research on judicial deci-
sionmaking has run into something of a dead end; but perhaps
this problem is only temporary. There seems to be growing in-
terest in legislative and administrative decisionmaking. There is
also a good deal of interest in the legal profession as such. Law-
yers, after all, do much of the work of translating lay demands
into legal forms.
Then there is study of the impact of law. This is a difficult
area. It includes the problem of communication within the legal
system. After all, a norm or order is useless, unless it reaches
some audience; if nobody hears the message, no impact is possi-
ble. Beyond that is the study of impact itself. This includes the
tangled question of deterrence, the effect of rewards and punish-
ments on behavior. In recent years, there have been literally
hundreds of studies and reports on deterrence. The hard ques-
tions are still open: who gets deterred, and when, and how much,
and why? Everybody concedes, or should concede, that impact is
more than a matter of rewards and punishments. People are in-
fluenced by social roles; by family, friends, and neighbors; by
religion and tradition; by ideas of right and wrong; by a mysteri-
ous something called legitimacy. How these feelings and motives
arise, and what effect they have on impact, is a difficult, underde-

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February 1986]LAW AND SOCIETY 773

veloped field. Here, too, it is appropriate to study the sy

and expressive meanings of legal institutions and legal lan
These meanings may ultimately affect the behavior of m
of society. Finally, there is the study of feedback. Feedba
specific form of impact; it is the way responses and beh
curve back and affect the system itself.
All this is merely by way of suggesting a general fram
some way of organizing work done within the law and s
movement. The framework does not override the part
The sociology of family law, the history of tort law, the
pology of crime and punishment-these all, no doubt, sta
their own two feet. Perhaps everything will coalesce in
grand theory-some day. I tend to be skeptical. But never
awfully long time.

IV.

Despite the lack of general theory, then, this is a pro

field and a movement that can credit itself with solid accomp
ment. It has its own journals, it produces strong work, i
future. I turn now to a less sanguine side of the story. T
and society movement has been trying to shoehorn its wa
law schools for more than 60 years. How far has it g
Where does it stand as of now? What has it achieved? And
where does it seem to be going?
To be frank, the study of law and society, by whatever name,
is something of a stepchild in the law school world. The Yale
Law Journal held a symposium on "Legal Scholarship: Its Nature
and Purposes," in February 1981. This symposium included all
sorts of schools, philosophies, and trends; the law and society
movement was conspicuously absent. There was, to be sure, an
excellent essay on legal history, and some attention to law and
economics. But the rest of the social sciences got only casual and
occasional mention. The symposium left out anything smacking
of the (general) sociology of law or related fields. No leading
figure in the movement presented a paper; the movement could
claim one commentator at most. There is much more life in the
field outside the law schools. The membership of the Law and So-
ciety Association (to take one rough indicator) consists chiefly of
social scientists, who outnumber law professors by over two to
one.

The neglect in the law schools calls for s

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774 STANFORD LA W REVIEW [Vol. 38:763

Whatever can be said about (or against) legal scholarship, th

is certainly a lot of it. There are something on the order of
law reviews, and they all fill up their pages. In the main, they g
filled with what is left of orthodox legal scholarship. The r
reflects whatever is bubbling and fermenting in the law sch
Law and economics generates some excitement; so do crit
legal studies, in various versions; a huge number of pages g
taken up by constitutional theology (if I may call it that) and
endless search for the magic bullet in fourteenth amendme
cases. Law and the social sciences (other than economics) do
make much of a dent. I once found this surprising. I thought
social sciences would revolutionize legal scholarship and trai
ing. But the law school world changes much less than I hope
and, when it does change, it moves in directions I did not exp
It was probably naive to think otherwise. In hindsight, i
clear why the law and society movement, in teaching and
search, could never hope to "capture" the law schools. To be
with, empirical research is hard work, and lots of it; it is also n
library research, and many law teachers are afraid of it; it calls
skills that most law teachers do not have; if it is at all elaborate,
is team research, and law teachers are not used to this kind of
effort; often it requires hustling grant money from foundat
or government agencies, and law teachers simply do not kn
how to do that. The whole thrust of legal education goes agai
the grain of law and society. Law school tries to empty the m
of all "extraneous" matter, the better to develop legal skills.
finest products of this process, of course, end up as teacher
Once they have emptied themselves of the extraneous, it is h
to reverse the process; and mostly they never try.
Prestige is a factor, too. Law schools (they are not alone i
this) tend to exalt "theory" over applied research. Empirical
search has an applied air to it, compared to "legal theory." T
law and society movement stresses the importance of what is ha
pening in society, as opposed to exclusive attention to what
"inside" the system. This means, first of all, that one has to kno
something about the surrounding society-things lawyers are
likely to know, in any systematic way.
The law and society people, on the whole, tend to emphas
behavior (and attitudes as they affect or reflect behavior). Le
scholars find this emphasis uncomfortable, even threatening.
them, law is norms, or language, or ideology, or rhetoric

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February 1986] LAW AND SOCIETY 775

"consciousness," or discourse-anything but behavior. Beh

is suspect, for the reasons mentioned. Of course, the emph
on behavior, like its opposite, can be carried to extreme
students of behavior and the scholars of formal norms do make
feeble or gingerly gestures of accommodation toward each other.
This bridges the gap only slightly.
In the second place, the emphasis on political and economic
behavior implies less reverence for the causal force of purely in-
tellectual forces-the role of legal thinkers, formal doctrine, phi-
losophy and theory of law; the role of abstract ideas, rather than
concrete interests and behaviors. But many professors are them-
selves intellectuals; they are drawn to theory, to the playful or
serious treatment of ideas. The stock in trade of intellectuals is
the life of the mind. Those legal scholars who dominate writing
in the leading journals are men and women who are fond of
books, essays, and discussions; they are at home in the milieu of
argument and logic; grubby facts of day to day life attract them
less than the grandness of theory; they are looking for universal
truth, and they do not expect to find it among the nuts and bolts
of some particular place and time. Thus the keenest minds in
legal education tend to find appealing precisely those aspects of
legal life, and those law school tendencies, in which the law and
society movement is least interested. Also, to attack the primacy
of intellectual forces in the history and functioning of legal systems
is to attack intellectuals themselves as an interest group. It
downgrades their importance and the importance of their work.
Nobody likes that, of course.
The law and society movement inside American law schools
got seriously underway in the 1920s and 1930s. One trait of this
early phase was the idea-or fallacy-that social science tech-
niques could solve actual legal problems. This attitude was only
natural. Lawyers are inveterate problem-solvers; the legal system
in general is a problem-solving system. This does not mean that
it actually solves problems, in the sense that a mathematician
does. It only means that trials, appeals, legislative debates, and
so on must produce answers, right or wrong, to the questions
and issues raised. Science or philosophy can dismiss a problem
as currently insoluble; the law cannot. A judge, faced with con-
flicting "authorities," does not abandon the case. Clients pay
lawyers for answers, not for philosophical speculations and
doubts.

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776 STANFORD LA W REVIEW [Vol. 38:763

Partly for this reason, perhaps, movements to replace "trad

tional" legal research with something better or more elaborat
tend to be better or more elaborate problem-solving methods
This, for example, is true of most (not all) writing on law an
economics. The premise is not merely that economics she
light on what the the legal system is or does, but that it provides
way of deciding what the best legal rule is for certain classes
cases. Constitutional theory holds out a similar promise. Ther
is the endless search for the key to constitutional problems: w
due process or equal protection really means or should mea
what methods and techniques produce "correct" results. T
current left wing of legal scholarship does not, in the main, adop
a problem-solving approach. Yet, in a way, it accepts the prem
ises of the scholarship it attacks. There is a delight in trashing
unmasking the assumptions of law and economics, or "liberal l
galism." But the left tends to show great impatience with "me
empiricism," and its program is to expose ideology, not to sho
how anything actually works. (This is, I believe, its greatest weak
ness; yet many people find this trait, to the contrary, extrem
seductive.)
The law and society movement has abandoned most of its
problem-solving emphasis. What it has is, first of all, a hunger to
describe and explain, more or less divorced from problem-solv-
ing in its crudest sense. But the function of law school is to teach
a trade, which means in turn to teach people how to ferret out
answers. Thus an approach that rejects this function fits poorly
inside the law school, at least in terms of law school ideology. It
may also be true that students who are attracted to legal educa-
tion are activists and problem-solvers, and they have had quite
enough sociology in college for their tastes. Most law professors,
at least in this regard, tend to be rather like their students. The
exceptions are the intellectuals who reject the law and society ap-
proach for other reasons.
I do not mean to say, of course, that there is no "practical"
value in understanding the psychology of juries, or the effect of
the sexual revolution on family law, or the way in which obstetri-
cians adjust to malpractice law. There is a vast and crucial differ-
ence between "answers" and relevant insight. It simply has to be
true that policymaking is better off when it is based on a sophisti-
cated understanding of the way the legal system actually works
and why it works that way-better, more just, and, yes, more effi-

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February 1986] LA W AND SOCIETY 777

cient than policymaking based on neo-Langdellian logic

some purely abstract "theory" or "model," hatched in a
lined office and full of "simplifying assumptions."
Law and society people thus have a valuable product to
but they tend to be somewhat more self-effacing-skeptica
haps-than some of their colleagues. They almost never
the claim, which economists now make routinely, that a l
who knows their skill is a better lawyer than one who doe
Historically, of course, this claim is absurd for any social s
it is absurd in terms of dollars and cents. Fortunes in antitrust
law and other fields have been made by lawyers who could not
tell a demand curve from a shipworm. Legal economists have a
tendency to claim too much; they are notoriously imperial. In-
flated claims and ambitions also are characteristics of constitu-
tional theology-and the work of orthodox legal scholars as well.
On the other hand, the claims made by economists may turn out
to be true after all. This will happen if lawyers come to believe in
the claims, and if judges and administrators actually use econom-
ics to solve legal problems.
Other social sciences, alas, are not in the happy position of
economics and have no prospects of getting there. To be sure,
they have a foot, or at least a toe, in the door of some law
schools. Prestigious law schools offer courses in sociology, his-
tory, or philosophy of law; or in psychology or anthropology of
law. But everybody knows that these are elegant frills, like thick
rugs in the dean's office; they have nothing to do with "real"
legal education. A school can do without these frills, in a crunch.
Indeed, being a frill is precisely what makes these courses valua-
ble, even essential, to an elite law school. After all, every school
has a course in torts; offering torts does not discriminate between
elites and proletariat; a course in legal anthropology does.
The marginality of the social sciences is a trifle obscured be-
cause these subjects, in general, are becoming undeniably more
useful to law-for example in complex litigation. Demographic
analysis plays a role in litigation over sex discrimination. Psychi-
atrists and psychologists get drawn into child custody cases; soci-
ologists and psychologists help out in choosing juries. All this,
however, is peripheral to the law and society movement, just as
forensic medicine is peripheral to the sociology of medicine. A
good lawyer may have to know something about sociology, or
psychology, or statistics in certain types of cases; other good law-

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778 STANFORD LA W REVIEW [Vol. 38:763

yers have to know something about ballistics, or stress factors in

bridge building, or computer science, or the history and struc-
ture of the perfume industry. Social science in law is not social
science of law, or even close.**
In the foreseeable future, it seems likely that the present situ-
ation will not change very much. That is, the law and society
movement will remain outside the law schools, pressing its nose
against the glass, mildly jealous of the success of its step-sister,
economics, most definitely a wallflower at the ball. Should any-
body care? Is enough going on in the university as a whole,

* * My colleague William Simon made the following comments on an earlier draft of this
essay. I did not change my mind (or my text), but his point of view is valuable, and I present it
in full in his words:

Your account of the marginality of law-and-society ignores what seems to me a

critical political dimension. Law-and-society has always been associated with the
Progressive-New Deal tradition of the regulatory welfare state. This association has
a lot of dimensions. One is the attack on formalism in legal thought which, as
Duncan Kennedy has argued, has been linked with center left politics. Another is the
aspiration to produce policy-relevant studies concerning the efficacy of the various
activities of the regulatory welfare state. Your emphasis on the theoretical, nonprac-
tical orientation of law-and-society surprises me. I think most people looking at a
program for an annual law-and-society meeting or the table of contents to Law and
the Behavioral Sciences would get the impression that the movement is intensely con-
cerned with practical policy, and that the practical policy matters with which it is
concerned are those relevant to the effectuation of the traditional center liberal pro-
gram. Thus, one factor involved in the marginalization of the movement is the col-
lapse of the New Deal tradition and the cutbacks in regulation and welfare programs.
This fact doesn't explain why L and S wasn't more prominent before the 1980s.
Two lines of explanation seem relevant here. One is the survival of the formalist
doctrinal tradition in legal education. The other is the increasing preeminence of
the corporate firm career path for students at the elite law schools and the failure (or
refusal) of L and S to produce research relevant to this type of practice. L and S
clearly has produced a lot of research that's relevant to practice. If you're going to
be a p.i. lawyer, you'll get a lot more information of practical value out of Ross's
Settled Out of Court than you will out of Calabresi's The Cost of Accidents. The problem is
that most elite law students are not going to be p.i. lawyers, nor are they going to
assume any of the public regulatory, welfare, or criminal law roles to which the L and
S stuff is most relevant.

If the elite schools had evolved the way some of the realists wanted them to,
toward training people for elite public service positions, if the dominant model had
become Wisconsin under Hurst, rather than Harvard under Hart, the fate of L and S
would have been quite different. Perhaps it's hard to imagine that the alternative
could have happened. If it is, it must be because of the anomalous absence of an
elite public service corps in America, though one would have thought that the devel-
opment of one would have been within the realm of possibility during the New Deal.
In any event, it seems to me that the real political role of L and S has to be found
in institutions that are preparing people for public service or community practice.
This probably means writing off most of the elite schools, but at schools like CUNY
that are focused on public service, there may be promising opportunities.

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February 1986] LA WAND SOCIETY 779

among political scientists, sociologists, and others, so tha

ignore the backwardness of law schools?
Unfortunately not. It is true that law and society pe
more common outside law schools than inside. But th
tion is nowhere very strong. People who study the legal
seem to be marginal, wherever they are. Sociology of law
ies of judicial systems in political science, anthropology
psychology and law-all of these, alas, are not in the
stream" of their disciplines; they are not "where the ac
Mainstreams are of course mere matters of convention or defini-
tion. They change course very quickly. Still, there are no sign
that this is about to happen. Indeed, the trend may be heading
the other way: Studies of public law and judicial behavior are o
the verge of extinction in some departments of political scienc
And there is nofinancial base. Billions of dollars are spent in th
country on research of all sorts. Precious little flows into law an
society work. There is a well-run program inside the National
Science Foundation; the money it spends per year on research
would not sustain high-energy physics for one day. Law and soc
ety scholars are beggars fighting for a handful of coins. When a
investment is so terribly small, it is hard to get new recruits; and
the output too will be small.
This rather weak position reinforces, if it does not add to,
what appears to be a substantive weakness in the field itself. To
many observers, the work done so far amounts to very little: a
incoherent or inconclusive jumble of case studies. There is (
seems) no foundation; some work merely proves the obviou
some is poorly designed; there are no axioms, no "laws" of leg
behavior; nothing cumulates. The studies are at times interestin
and are sporadically useful. But there is no "science": Nothing
adds up. Law and economics offers hard science; CLS offers hig
culture and the joy of trashing. The law and society movemen
seems to have nothing to sell but a kind of autumnal skepticism
The central message seems to be: It all depends. Grand theories
do appear from time to time, but they have no survival power
they are nibbled to death by case studies. There is no centr
core. And, to be sure, there is some truth to these complaints
though only if the standard of legal "science" is a universal, time-
less, and impossible one.
In any event, these are some of the reasons why the law and
society movement has not found a home in the law schools, how

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780 STANFORD LAW REVIEW [Vol. 38:763

ever much it deserves one. As a consequence, the law

world is seriously impoverished. Law and society studies a
essential ingredients to make a successful lawyer; but I do
how one can grasp the meaning of law within society except
the vantage point of social science. "Law" is a massive
presence in the United States. It is too important to be left t
lawyers-or even to the realm of pure thought.
Basically, the law and society movement has made, and
make, a major contribution, just by insisting on its way of lo
at law, together with its box of tools to use in carrying o
work and its simple but powerful ideas for arranging and exp
ing the work. Its angle is a kind of deliberate detachment
rating study of law from the values that are part of its subs
It is certainly true that no research design or interpreta
results can ever be totally "value free." Questions asked a
ways asked for a reason; in a sense, too, all measurem
lightly or heavily scented with the values of those whose
are on the switch. But the best of the work is at least aw
these limitations; the best scholars try to approach objec
And at its best, the law and society movement holds up to th
a mirror and a yardstick; it stands for clarity, honesty, and
in the study of legal institutions. How many of its rivals can
ously make that claim?

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