by David Nelken. Burlington, Vermont: Ashgate Press, 2009. 348pp. Hardcover. $154.95/£80.00. ISBN: 9780754628026.
Reviewed by Jeffrey R. Dudas, Department of Political Science, University of Connecticut. Email: jeffrey.dudas [at] uconn.edu.
“What,” asks David Nelken, “if law should be seen as a distinctive form of knowledge, even of social knowledge, and not just a source of authoritative norms and principles?” (Nelken 2009: 146; emphasis preserved) This question appears nearly halfway through BEYOND LAW IN CONTEXT; it works as connective tissue, yoking together the diverse essays that make up the volume. Published in 2009 by Ashgate Press, BEYOND LAW IN CONTEXT is an ambitious and impressive collection of essays that Nelken originally published between 1981 and 2007. These essays are at once of, and beyond, Nelken himself. Indeed, when considered as a whole, BEYOND LAW IN CONTEXT amounts to an intellectual biography of the law and society scholarly movement and, especially, that movement’s animating, even all-encompassing concern with the relationship between the enterprises of “law” and “society.”
But I am running ahead of myself. BEYOND LAW IN CONTEXT is, most obviously, a compilation of David Nelken’s considerable intellectual output over three decades. The book collects 15 essays – all of which were previously published in prominent law and society journals such as JOURNAL OF LAW AND SOCIETY, LEGAL STUDIES, and AMERICAN BAR FOUNDATION JOURNAL (now known as LAW AND SOCIAL INQUIRY) or in high-profile edited volumes. The specific topics addressed in the essays canvass a variety of concerns, ranging from the content of criminal law textbooks (chapter 7) and the vagaries of the 1965 British Rent Act (chapter 4) to more general topics involving the ubiquitous “gap” studies of a previous generation (chapters 1, 2, and 14) and the disciplinary tensions between legal and science studies (chapters 9 and 10). Each of these essays is stimulating and illuminating.
Given the uniformly high intellectual caliber of Nelken’s work, BEYOND LAW IN CONTEXT would arguably be a valuable read even if these essays were self-contained. But what elevates this book beyond mere compilation and makes it captivating is the way that these essays articulate both with one another (essays frequently reference previous ones) and, especially, with the larger intellectual enterprise that has consumed law and society scholarship since its beginnings in the late 1960’s and early 1970’s. That enterprise – for all of its diversity in method, concept, and topic – has typically involved debates over how to understand the manifold relationships between the spheres conventionally designated as “legal” and “social.” Nelken’s essays are critical “meta”-guides for understanding those debates, even as they are frequently prescient and, in retrospect, cutting edge [*542] interventions into the debates themselves.
The early essays that appear in BEYOND LAW IN CONTEXT are concerned with scholarly renderings of the “gap” between “law in the books” and “law in action,” between the formal content of governmental rules and regulations and their practice in both formal and informal legal arenas. Nelken persuasively situates gap studies within the tradition of legal realism, and the social engineering that animated it, that emerged in the works of such luminaries as Roscoe Pound, Karl Llewellyn, and Morris Cohen in the early part of the 20th century. Indeed, early legal realism scholarship mirrored both the content and form of the gap studies of the 1960’s and early 1970’s. Both traditions illuminated the distance between law’s promises and law’s realities in order, primarily, to illustrate the need for legal and, perhaps, policy reform.
More important for Nelken’s purposes is the formulation of the relationship between “law” and “society” that both realists and gap scholars shared. These scholars correctly revised the conventional, formalistic depiction of law and society, and law and politics, as distinct, hermetically-sealed entities. That convention – itself an artifact of a positivist conception that understood law as the commands of a paternal sovereign – envisioned law, as in Robert Bork’s later formulation, as rules and regulations that had “meaning independent of our desires” (Bork 1989: 143). Similarly, judges were conceived in this tradition as legal automatons that practiced strict neutrality in interpretation – neutrality that allowed them to discover “correct” legal outcomes (Brigham 1987). Realists exposed judging as an inescapably political enterprise that relied upon individual prerogative; gap scholars exposed the rules and regulations that make up law as political tools that inevitably favored some interests and disfavored others. Both realists and gap scholars saw promise in the politics of law; they each prescribed, sometimes implicitly, the use of courts in order to forward their preferred policy goals.
Nelken’s early essays, however, anticipate the conceptual difficulties involved in this shared project of seeing law as simply another form of politics. Stripped of any unique content, law was presented as an arena of struggle occupied by inevitably biased judges (whether for policy ill or good) and institutional structures that mirrored a society’s historical and current balance of power. Substantive justice was possible through law, argued realists and gap scholars; its absence signified the workings of unfair hierarchy.
As Nelken correctly argues in these essays, there was much to be gained by conducting such a “sociology of law” that traced the articulations between extra-legal and legal prerogatives. And, indeed, it is impossible to imagine a law and society scholarly movement that did not relentlessly subvert the conventional, untenable distinction between law and society found in the formalistic tradition. Yet Nelken’s essays also correctly foresee the conceptual and empirical dangers involved in the scholarly confluence of law with society and law with politics. Such confluence, in fact, slipped easily into the problematic depiction of law, as in the Marxist [*543] tradition, as epiphenomenal to the “real,” base conflicts that emerge from a society’s division of labor. This instrumentalist formulation – a logical outcome of denying all distinction between law and society – emerged prominently in the early 1980’s in the writings of radical law professors affiliated with the Critical Legal Studies (CLS) movement such as Duncan Kennedy and Peter Gabel.
Anticipating such a depiction of law as epiphenomenon, Nelken instead engaged the “relative autonomy” position identified with, in law and society circles, the scholarship of Isaac Balbus and, the subject of chapter 6, Richard Lempert. Yet here also Nelken foresaw, as would later Critical Race Theorists such as Kimberlé Crenshaw and Patricia Williams, significant errors; for the relative autonomy argument – which allocated some autonomous influence to the institutions and practices otherwise depicted as epiphenomenal to a society’s class-based conflicts – nevertheless depicted law, “in the last instance,” as reducible to class dynamics. In the middle essays presented in BEYOND LAW IN CONTEXT, Nelken thus begins to envision law as a unique form of knowledge, one made up of distinctive symbols and discursive conventions, with which people talk about and think about themselves and others. In such a conception, the “legal” is envisioned in predominately cultural terms, as a conceptual resource at once distinct from other modes of knowledge and the disciplines that interrogate them, yet persistently reliant upon those modes for its own popular legitimacy and intelligibility.
The later essays collected here articulate this ambivalent relation where “law” is simultaneously of and apart from “society.” These essays thus engage the “constitutive” relationship between law and society that has become a staple of the law and society scholarship of the previous 15 or so years. Such an approach, as has become clear, allows scholars, in Nelken’s words, to both “avoid unreflective importation into law of competing disciplines” and avoid a “revisionist and one-sided exaggeration of law’s independence from external influence” (Nelken 2009: 160).
Nelken’s volume thus tells us where law and society scholarship has been, how it got there, and where (potentially) it is heading. The individual essays are illuminating and stimulating; the threads that sew them together are crucial for understanding the law and society movement. BEYOND LAW IN CONTEXT is essential.
Bork, Robert H. 1990. THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW. New York, New York: The Free Press.
Brigham, John. 1987. THE CULT OF THE COURT. Philadelphia, Pennsylvania: Temple University Press.
© Copyright 2010 by the author, Jeffrey R. Dudas.