Roger Cotterrell speaks to us about his new book on Jurisprudence and Socio-Legal Studies: Intersecting Fields, published by Routledge (2024).
The idea behind the book is to connect two areas of research on law that are usually seen as entirely distinct – jurisprudence and socio-legal studies. Today they often seem even mutually hostile. Socio-legal folk rightly think of themselves as looking empirically at how law works (or doesn’t) – a down-to-earth approach often using social science methods, always asking what practical difference law makes, and what can be expected from it. From this perspective, jurisprudence can seem just airy, remote abstractions – as an American scholar once said, ‘a romp through the clouds.’ Conversely, when jurisprudence is treated as legal philosophy, its practitioners see themselves as viewing law’s essentials, its timeless concepts, while socio-legals are dismissed for only looking at its contingent aspects, pursuing studies that need an infinity of factual detail, usually missing the essence of law as a general idea.
These views are caricatures, but they represent widespread prejudices. My book argues that jurisprudence is not timeless, context-free legal philosophy. It is a theoretical resource for jurists who work in particular historical contexts, trying to understand how law in those contexts can be made to express values that citizens expect it to represent. Seen in that way jurisprudence needs to draw on empirical socio-legal research. Correspondingly, socio-legal studies need theory about legal doctrine that informs action, and jurisprudence can supply some of that. In recent Anglophone writing, jurisprudence and social science stand so far apart that they rarely speak to each other – a self-defeating and wasteful approach. My book aims to rebuild bridges that once existed but have collapsed because of the emergence and flourishing of modern Anglophone legal philosophy and the policy-imperatives of much socio-legal research.
I taught jurisprudence from my first year as an academic and carried on doing so throughout my career. But, for some time, I didn’t really appreciate what the subject was for. I enjoyed it and saw it as a kind of liberal study for law students, to help them to think about law in a wider, more imaginative way. Then, gradually, I began to see its potential differently – as a resource for thoughtful lawyers committed to promoting the wellbeing of the idea of law (which could go along with strong criticism of law as it actually existed). I thought there was a lot missing in the jurisprudence I had learned at law school. Hart’s Concept of Law was the wonder book in the field. But it seemed totally unconnected with the practical life of law. It was, like Hart himself, in thrall to philosophy rather than focused on the needs of jurists.
Soon after I started teaching law, I discovered that there was a research field called sociology of law, and I studied sociology. It gradually seemed obvious that jurisprudence must connect with values that citizens want to find in law – such as justice and security – and with the need to fit law to the precise needs of the society in which it exists. That made social science essential. For many years I wrote about sociology of law as social science, and also about jurisprudence as a way to explore law’s critical potential in pursuit of values. Eventually, the need to link these parallel studies seemed ever more pressing. My book Sociological Jurisprudence (2018) was a serious move in this direction of linking jurisprudence and social science. But I wanted to do more: to look carefully at the kinds of theory socio-legal studies requires and the resources that jurisprudence might bring to socio-legal studies. I wanted to explore what had been lost and what could be recovered. My new book is the result.
Like most of my books, this one originated in various essays. When I put them together, I was surprised to find that they all addressed quite directly, in different ways, the problem of relating jurisprudence and socio-legal studies. Perhaps I should not have been surprised. The need to find out how to get these fields of legal scholarship to talk to each other had been an obsession for years. But the important thing was to rethink everything to create a totally unified argument, and also to write a lot of new material that filled gaps.
In particular I wanted to rehabilitate some forgotten ideas. I wanted to retrieve some insights from continental European jurisprudence over the past century that has been almost entirely written out of contemporary Anglophone legal theory. The lack of attention in it to great writers like the French jurists Hauriou and Duguit, the international polymaths Gurvitch and Petrażycki, the German Jhering, the Austrian Ehrlich, and the Italian Romano, has impoverished jurisprudence in Britain. It is one among many signs of the enduring parochialism that haunts our current juristic thought. How many current writers on jurisprudence in the English-speaking world have read, or even heard of, these great jurists? Yet in continental Europe they are often revered figures in the canon of legal theory.
Parochialism is a disease that is certainly not confined to the English-speaking world of jurisprudence. Because law is still largely a subject for study inside national boundaries, jurists naturally focus most easily on home-grown products. But, everywhere, jurisprudence as the theory of jurists is the poorer as a consequence. Jurisprudence has to be very sensitive to local context but not confined within it. So, the second part of my book consists of chapters on several juristic theorists who are relatively unknown in the Anglophone world. They are chosen because their ideas can be readily linked to the interests of socio-legal scholars today. Put into a context of history, politics, and social change, the jurisprudence of these scholars can help to build the bridges that my book envisages between jurisprudence and socio-legal scholarship.
Although some of the book originates in earlier essays, they have all been modified quite drastically for its purposes. They became just a template on which a unified argument could be built. Alongside the book’s juristic studies, its first part focuses directly on the history, scope, and value-commitments of contemporary socio-legal studies. Today, I think I have an equal commitment to supporting these empirical social studies of law and to the possibilities of jurisprudence. I can’t say which of these fields is more important to me. They are just different means to explore the nature of law as a social phenomenon. The third part of the book looks at their parallel histories, their current common concerns, and their likely future interdependence.
Theory is perhaps much less a central unifying concern in legal studies than it was a few decades ago, but I am sure that it remains essential to provide direction and guidance for the numerous kinds of research on law that are now being undertaken. So, the chapters that focus on socio-legal studies aim to highlight the need for theory in this research. They consider the kinds of theoretical resources that are available and the juristic issues that socio-legal studies often imply. Key questions are: how far should social scientific research on law concern itself with values? How should studies of the relations of law and culture understand the concept of culture? Can culture be a concept relevant to law? What legal issues are involved in the idea of multiculturalism or cultural pluralism? How can socio-legal studies and jurisprudence make sense of the burgeoning debates around the idea of legal pluralism? And what is the relationship between juristic and sociological concepts of law?
These questions all indicate that theory is necessary to clarify issues that both jurisprudence and socio-legal studies have to address. But what kind of theory? Whether in jurisprudence or socio-legal studies it has to be empirically informed, and sensitive to empirical variation. The most helpful theory is not usually found in the context-free abstractions of legal or social philosophy, as some theorists claim. This is because the issues are never timeless. They are not a matter of discovering an essence of law for all times and places. They don’t ever require the study of law without careful regard to its specific historical and social settings. But they do point clearly to the benefits to be obtained from firmer alliances, at the level of contextually sensitive theory, between jurisprudence and socio-legal studies.