by Roger Cotterrell. Hampshire: Ashgate, 2007. 206pp. Hardback. $114.95/£60.00. ISBN: 0754625052. Paperback. $39.95/£22.50. ISBN: 0754625117.
Reviewed by Thomas Scheffer, FU Berlin, Emmy-Noether Group. Email: scheffer [at] law-in-action.org.
Some books are better read from end to start. Roger Cotterell’s LAW, CULTURE AND SOCIETY. LEGAL IDEAS IN THE MIRROR OF SOCIAL THEORY is one of these, because his argument is not developed from chapter to chapter, but tightened up and systematised only at the very end. Cotterell is a major advocate for the application of sociological thoughts to the understanding of legal doctrine. Or, as one previous reviewer, a legal scholar from Edinburgh put it: “It is now widely accepted that sociological inquiry is valuable and necessary to illuminate the social or historical processes that shape legal doctrine.” In this book, not unlike his previous publications, Cotterrell advocates the following idea: Law & Society creates a wrong analytical horizon. Why? There is no such thing as one unified and contained society; there are only various ideological efforts to imagine the nation state as community, in terms of instrumental relations, values, traditions or affection (p.166). Instead of a single integrated society, we are confronted with various communities, according to Cotterrell, with various modes of creating mutual trust under local as well as global conditions. Law in general contributes to and stabilises these various structures of mutual trust. State law, he argues, supports some (sorts of) communities – especially instrumental relations – while excluding others. But, Cotterell adds, there is much more to “law-and-community” than just state law.
In light of the conclusion, the reader can re-read the chapters. In Chapter 1, Cotterrell argues for the need to bring law and sociology together, while keeping their independence. Later he will assert that they are linked “only for specific purposes” (p.133). In this division of labour, the role for trans-disciplinary sociological inquiries is specified: They study forms of communal integration and the various contributions that legal norms can play to create foundations of mutual trust. In Chapter 2, Cotterrell discusses legal pluralism and why it is important to diverge from ideas of a unified law founded by one central institution (the state). There is no “single form of legal participation” (p.35). In Chapter 3, he discusses “why legal ideas (must) be interpreted sociologically.” His call for a sociological perspective must be seen in relation to his idea of communal involvement and the creation of mutual and sustained trust. The role of the sociological inquiry is classic: how, the question would be, is this community possible? How is it kept together? What are its bonds? Law serves as one integrating mean amongst others. Sociological inquiry means the “systematic interpretation” of law “as an [*305] aspect of social relationships” (p.55). In Chapter 4, Cotterrell introduces his concept of community as types of “collective involvement” (p.68). At this point he shows what he means by systematic by applying Weber’s method of the “ideal type.” He identifies four “ideal types,” as Weber did in his study of social action (and degrees of rationality): the instrumental, the value-based, the traditional, and the affective. Law guarantees systems of confidence, in the main, indirectly by sustaining and encouraging patterns of trust embodied in ideal typical forms of collective involvement or interaction” (p.75).
These four chapters build the first part of the book. They are followed by five chapters with an emphasis on legal culture and legal comparison. Chapter 5 discusses the shortcomings (less the potentials) of the concept of legal culture. Cotterrell rejects the broad notion of culture for its “imprecision and vagueness” (p.82). Relevant in his view is not culture as such, but cultural components of collective involvement. He rejects the broad concept of “legal culture,” preferring a focus on the ideological components of legal culture. And this is important: The focus is “on the power of the state legal system to produce structures of social understandings, attitudes and values among lay citizens, than on the ways in which these kinds of diffuse understandings, attitude and values shape the workings of the state legal system” (p.94).
In light of Cotterrell’s conclusion, the reader could work through the next chapters as well: Chapter 6 on “law in culture,” including a critique of the loose conception by Friedman; Chapter 7 on legal transplants, with an important critique of its lack of social foundation; Chapter 8 on “sociology and comparative law,” including a useful “list of reasons to compare law” (p.130); and Chapter 9 on “comparative law,” presented as an exercise that is better carried out as “interpretation.” The presentation of problems, issues, and areas of specialisation is impressive. He discusses system theory, legal hermeneutics, Habermas’ theory of the life world, and legal pluralism. However, the key ideas remain the same throughout these excursions: “Today, in legal studies, the social can no longer be thought of as an undifferentiated entity of some sort. We can no longer speak of law’s function in relation to ‘society’ as though law and society are monolithic entities confronting each other” (p.154). Cotterell repeatedly returns to his law-and-community perspective, and it serves as a solution to the various conceptual problems of legal scholars, of law and society research, and of comparative law.
Communities provide the valid context to understand (the function of) law. Cotterrell rejects the communitarian thinking that builds an opposition of law and trust, or law and belonging. Law does not undermine, but gives foundation to communities; it does not cut off communal bonds but strengthens and maintains them. This is why legal studies and sociological inquiry must go hand in hand. The first can dwell on the technical knowledge of doctrines and laws, while the latter can focus upon the reconstruction and explanation of social [*306] ties. Both together can explain how the local, as well as global, communities are built on law. Cotterell uses this relation to specify the role of legal culture, which nests in-between the two and can therefore not be reduced to legal institutions or to moral beliefs. Everything, it seems, falls into place. But do his broad and abstract conceptions still work once they are put to empirical inspection? And what is the place of the state, of individuals, or of conflicts in this integrative framework of trust and community?
There are more concerns that may stimulate a critical re-reading of Cotterell’s “mirror”: (a) In the name of legal pluralism, the book does not mention empirical studies on courts, disputes, legal discourse, or the legal profession. What if the working of the judicial apparatus impressed communities and their members in terms of chances, options, or resources? What if the observation of legal institutions would teach them about the scope and usability of law for strategic purposes? (b) While sticking to classic sociology, Cotterell brackets out new studies on post-social mechanisms (Knorr Cetina 1997), on human-machine interaction (Suchman 2007), and on socio-material assemblages (Latour 1999). Is it adequate to describe these practical connections as “social relations of community” that “are moral relations” (p.164)? (c) All communities, Cotterrell claims, are “slowly and steadily built. The key characteristic of such gradually evolved relations is that they are imbued with a high degree of trust” (p.73). Is it possible to capture the new social movements, the experimental forms of cultural-political demonstrations, or the situative media spectacles in this manner? There is a whole range of new forms of inter-activity that come about with new and mobile media, with electronic and audiovisual communication. These forms seem to resist Cotterrell’s descriptions of the “slow and steady development.” How does law-and-community relate to them?
Cotterrell’s book stipulates these ‘specific’ reservations and requests because of its wide range of abstract themes, problems, and pledges. The price to pay for his hasty discussions on law and social life is a lack of clarity and precision. In LAW, CULTURE, AND SOCIETY no empirical (ethnographic, anthropological, or discourse analytical) insights would slow down his train of thought. No attempts to further specify – not even by telling stories or anecdotes – his claims would control the expectations on the side of the audience. Cotterrell is too busy demarcating the disciplinary landscapes of law and social theory. And he knows how to play this game of generalisation and differentiation. A core example for this variation may serve his notion of “law.” It is treated as self-explanatory. It is not defined. It basically covers everything from dangerous driving regulations to constitutional doctrines, while at the same time he contends that the concept of “legal culture” should be restricted. The discussions of concepts carried out in this ‘theoretical manner’ cause some longing for thick descriptions or detailed cases. For now, the reviewer doubts that Cotterell’s law-and-community framework could stand the details of the [*307] everyday life, the struggles, and the workings of legal cultures.
Knorr Cetina, Karin. 1997. “Sociality with Objects. Social Relations in Postsocial Knowledge Societies.” 14 THEORY, CULTURE & SOCIETY 1-30.
Latour, Bruno. 1999. PANDORA’S HOPE: ESSAYS ON THE REALITY OF SCIENCE STUDIES. Cambridge, MA: Harvard University Press.
Suchman, Lucy. 2007. HUMAN-MACHINE RECONFIGURATIONS: PLANS AND SITUATED ACTIONS (2nd ed). New York and Cambridge UK: Cambridge University Press.
© Copyright 2007 by the author, Thomas Scheffer.