Law and Society Jurisprudence

Daphna Hacker - Tel Aviv University

 Introduction

My point of departure is Robin West’s claim that legal scholarship should strive to answer three questions: What is the law?  Why is the law what it is?  What should the law be?   I adopt her position that jurisprudence should be engaged in explicitly utopian, non-imitative, and nonadjudicative normative questions, which are part of one meta-question: “[H]ow might a decent law contribute to a humane and just society and world?”1  In this editorial, I wish to demonstrate the actual and potential contribution of the law and society movement to the creation of such normative jurisprudence.

In Part I of this editorial, I will analyze the work of Israeli scholars who identify themselves as part of the law and society community to demonstrate this community’s contribution to answering the three questions West argues should be at the heart of legal scholarship.  In Part II, I will identify three major problematic tensions within law and society scholarship.  In Part III, I will suggest ways that these tensions can be dealt with so that the law and society movement’s contribution to a non-imitative, normative jurisprudence might be utilized.

 Law and Society in Israel

It is extremely difficult to find one conclusive definition of the current field of knowledge of law and society scholarship.2 Hence, rather than attempting to provide an all-inclusive definition of the law and society movement, I ask what it is that Israeli scholars who identify themselves as part of this movement do.

The Israeli law and society movement is a vibrant and relatively organized community with its own association, annual meetings, and website.  The impact of this movement in Israel is evidenced by a very significant change that has occurred within law faculties in recent years: all law faculties now offer introductory courses in law and society or more specific courses dealing with certain aspects of law and the society in which it operates.  Another significant development is the fact that, in recent years, Israeli law faculties have hired faculty members and teachers who are trained in the social sciences, either solely or in addition to having a legal education.

The vitality of the Israeli law and society movement is also evident at the annual meetings of the American Law and Society Association (LSA).  Israeli scholars attend these meetings each year, and a few even hold leading positions within the LSA.

I chose to study the scholastic activity of those Israelis who identify themselves as part of the law and society movement by looking at the Israelis who participated at the LSA annual meeting that took place in Berlin in 2007—a meeting in which the Israeli Law and Society Association (ILSA) was reestablished.  This meeting attracted an exceptional number of forty-eight Israelis, most of whom proved their ongoing commitment to the law and society movement by also attending later LSA meetings.3

The study of the Israeli participants at the LSA conference in Berlin included obtaining all possible information from the conference book; searching virtually for the abstracts of the papers presented at the conference; and documenting the participants’ institutional affiliations, educational degrees, academic fields of interest, the courses they teach, and their involvement in nongovernmental organizations for social change (NGOs).  In addition, participants were contacted for missing information.

Out of the forty-five participants whose educational information we managed to gather, thirty-seven have a degree in law.  Of those with no legal education, one had all her degrees within the humanities, five had them within the social sciences, and two were trained in both.  Moreover, of the forty-five cases in which we managed to locate the participant’s academic institutional affiliation, thirty-three were from law faculties, one was a joint delegate of a law faculty and a social science faculty, one was a joint delegate of a law faculty and an interdisciplinary program, nine were from social science faculties, and one was from the humanities.  Hence, most of those who see themselves as part of the law and society community in Israel are, first and foremost, legal scholars embedded in the institutional framework of law faculties.  The dominance of legal scholars was also evident in the reestablishment of ILSA, which took place at the 2007 LSA meeting.  Although the driving force behind the organization and its chair for the next three years was Professor Menachem Hofnung from the Department of Political Science at the Hebrew University, five out of the other six board members were from law faculties and schools.

Notwithstanding this strong evidence of legal dominance in the movement, it is important to note that of the thirty-seven participants with a legal education, eight also have one or more degrees in the social sciences, one has a sociolegal degree, and eight have one or more degrees in the humanities.  Hence, while almost forty-two percent of the participants at the conference had only legal degrees and twenty-three percent had no legal education, many law and society scholars embody in their academic training an interdisciplinary attempt to combine law with other fields of knowledge.

The abstracts of the thirty-eight papers and one book presented by Israeli participants and the nine roundtables and sessions in which Israeli participants who did not present a paper took part as chairs, commentators, or discussants reveal a wide range of issues.  The issues most dealt with were labor rights; discrimination; the family; courts and judges; space; political bodies; and globalization. Other, less dominant topics, were legal education and methodology; culture and religion; property and capital; legal consciousness; mediation; law’s impact on behavior; transgendering; and torture and security.

Notwithstanding this variety of issues, a clear line connects more than half of the papers presented by Israelis at the 2007 LSA meeting.  This line involves West’s third question: What should the law be?  Moreover, correlating West’s call, the normative departure point of many of these papers is the meta-question: “How might a decent law contribute to a humane and just society and world?”  No less than twenty papers out of the thirty-eight presented dealt with the ways the law should be shaped, interpreted, changed, enforced, or overcome so that members of disempowered, excluded, discriminated, or exploited groups might enjoy justice, equality, freedom, and other basic human rights.

An examination of the participants’ involvement in NGOs strengthens the conclusion that many Israeli law and society scholars are committed to a more humane and just Israeli society.  In addition to the two participants who were employed by NGOs  at the time of the conference, at least twenty-one other participants are or were involved as founders, board members, or pro bono consultants in NGOs for social change, that focus on human rights and distributive justice.

West’s second question, “Why is the law what it is?”, is also one that preoccupies the Israeli law and society community, but less so than the third question.  One interesting finding is that this second question is a main motivation of the non-legal scholars who participated in the conference.  Out of the eleven papers that dealt with explanations of the current legal situation, only two were written by law faculty members with a legal education background (out of twenty-two participants with these characteristics).  Indeed, it seems that this second question, one that usually demands an empirical study to be answered, attracts those who are interested in the law from a historical, sociological, or political science perspective and have the required methodological tools to answer it due to their educational background in the social sciences.

The professional activity of the Israeli participants at the 2007 LSA meeting proves that, notwithstanding their preoccupation with the second and third questions that West argues should be at the heart of legal scholarship, they do not neglect the first question of “What is the Law?”  Out of the thirty-one participants who hold a position within a law faculty or school, eighteen teach doctrinal legal courses.  An additional six participants mention one or more doctrinal fields of law as one of their fields of interest.  Hence, it is clear that most of the legal academics that identify themselves as part of the law and society community consider the question of what the law is as an integral part of their work and are sufficiently regarded as experts in doctrinal analysis to teach it in their faculties and schools.

Moreover, the non-doctrinal courses taught by this group demonstrate the revolution it has brought into legal education.  Law students today can choose from a range of courses unheard of twenty years ago, such as “Therapeutic Jurisprudence,” “Multicultural Negotiation,” “Feminism in Literature and in Law,” and “Qualitative Methods for Law Students.”

 Three Major Tensions

 A.   Complexity and Confusion

The scholarship of the Israelis identifying with the law and society movement is more evidence of the law and society movement’s significant contribution to what is by now an almost taken-for-granted jurisprudential understanding of the law as a dynamic, interpretive, and political social institution, discourse, symbol, and cooperative behavior.  Indeed, without the law and society movement’s contribution to this understanding of the law, it is hard to imagine other nontraditional jurisprudential projects that have followed it, such as critical legal studies, feminist jurisprudence, and even law and economics.4

However, the “cacophony of voices”5 caused by the variety of questions, and ways to answer them, raises questions about this movement’s identity and future.

Moreover, this lack of clear boundaries can diminish the Israeli law and society community’s impact on law faculties, as is the case in the United States, especially when compared to the impact of the law and economics movement’s impact there.

 B.   Legitimization and Shallowness

In the United States, one central force in the integration of law and society scholarship into law faculties was the “quest for social reform.”6  Those who wished to use the law to engineer society co-opted the social sciences.

However, only fifteen out of the forty-five Israeli participants in the 2007 LSA meeting about whom we managed to collect full educational information had any background in the social sciences.  Not surprisingly, then, only seven abstracts mention classic social science methodologies, such as interviews, surveys, and fieldwork.  In the rest of the abstracts, the methodological part is the weakest link, and, in many cases, it is hard to tell what kind of a methodology was employed, if any.  Hence, it seems that much of Israel’s law and society scholarship does not rely primarily on independent social science research.  In addition, these findings raise doubts as to the ability of these scholars to read social science work and use it as a secondary resource.  Finally, one should point out the risk of these scholars performing shallow research that they are not trained to complete.

A different concern emerging from the findings—also related to the tension between legitimacy and shallowness—is what Sarat and Silbey call the “pull of the policy audience.”7  The warning from the subordination of the social sciences to the legal discipline is extremely relevant in the Israeli context because, as we saw, those who do law and society work are mostly connected to the legal institution.

Finally, in its struggle for legitimacy, the law and society community has to face the crisis of legitimacy within the social sciences themselves.  Many within the social sciences community have abandoned the positivist perception of science as apolitical and have delved into a reflexive analysis of science as an institution of power.8

 C.   Optimism and Pessimism

As we have shown, many Israeli law and society scholars tend to strive for an egalitarian and just society.  From such a normative standpoint, it is hard to understand the academic project of the law and society community without faith in the ability of the law to produce progressive social change.

However, it seems that in many cases the preoccupation of the Israeli law and society scholars with the ways the law discriminates against and harms the disempowered is not embedded in an optimistic view of the law’s ability to bring about justice and equality but in a pessimistic outlook that doubts the law’s capacity as an effective tool for reform.  Indeed, much of the law and society work was, and still is, aimed at pointing at the gap between the promises of equality and justice made by liberal legal systems and the financial, gendered, raced, and other unequal power relations preserved by these very systems.  Such a pessimistic standpoint is in tension with the legitimacy of the field as able to produce valid data to inform law reform and, moreover, with the law and society project as a whole because it questions the importance of studying the law if it is but a mirror of more dominant social forces.

 Facing the Challenges

The law and society community must maintain its flexible, open, and dynamic boundaries.  It is this openness that allows one to challenge the positivistic perception of the law and of science and to produce reflective and complex knowledge.  However, these flexible boundaries should not be mistaken for a lack of quality standards.  I find the no-scrutiny policy of the LSA an example of the kind of laxity that leads to low-quality sessions, with presenters who come unprepared or do not show up at all.  Although other methods, such as peer review in law and society journals, are employed to ensure excellence, the law and society community in Israel, as elsewhere, must make sure it does not become a platform for mediocrity.

Legal academia, for its part, must not only tolerate the confusion caused by law and society scholarship (as well as by other non-positivistic voices) but also embrace it as the condition for the proliferation of a non-imitative jurisprudence.  A discipline that is burdened by the necessity of training professionals must elevate itself with questions and ways of answering that are not subordinated to the ways lawyers and judges currently think and act, or it is doomed to become no more than a manual.

Furthermore, this openness of boundaries must not be confused for nihilism or even radical relativism.  I adopt here Galanter and Edwards’s position that the law and society community should distinguish itself from postmodern movements in the law by insisting that the “state of the world ha[s] to be validated by some appropriate method of investigation”.9  The realization that no research can be politically neutral and that every study—whether quantitative or qualitative, involves interpretation—should not lead to an abandonment of trustworthy, credible, transferable, dependable, and confirmed research.10  Hence, those who wish to join the law and society community should overcome the current failure of legal education to provide social science theoretical and methodological training and acquire it outside of law schools.  Legal academia, for its part, must offer such training, if not as a mandatory LLB course, then at least as an option for advanced students.

Moreover, to realize the law and society scholarship’s potential contribution to a non-imitative jurisprudence, law faculties must allow independent law and society research and provide the requisite resources.  Without such funding, law and society scholars might have to sacrifice their concerns to the interests of those who can provide the funds or be unable to conduct any empirical research whatsoever.  Moreover, the law and society community must insist on including scholars who are interested in the law as a social phenomenon but work outside law faculties, and hence are relatively independent of the policy audience.

Finally, Garth is right to insist on reimagining society and to believe that we can change social relations,11 even for those of us who have lost our belief in cause-and-effect science and in the ability of the law to engineer society.  One way to do so is to become a bridge between legal academia and life outside campus.  By challenging the ivory-tower practices of law faculties and developing ways that legal scholarship can become part of the society in which it functions, the law and society community can significantly contribute to a non-imitative, normative jurisprudence and carve an optimistic niche in a pessimistic reality.  The current Israeli political era, with its increasingly extremist nationalism, uncompassionate neoliberalism, and orthodox religiosity, makes this mission more urgent and important than ever.  Legal clinics, participatory action research, active membership in NGOs seeking social justice, and participation in governmental committees are some of the activities in which law and society scholars do, can, and should take part.  Moreover, this community should continue to develop new ways of making law an academic discipline relevant to the struggle for a more humane and just society.

Acknowledgments:

Copyright © 2011 Cornell Law Review.

Daphna Hacker is a senior lecturer at the Buchman Faculty of Law and the NCJW Women and Gender Studies Program, Tel Aviv University.

This editorial is based on Daphna Hacker’s article, Daphna Hacker, Law and Society Jurisprudence, 96 CORNELL L. REV. 727 (2011).

  1. Robin West, A Reply to Pierre, 97 GEO. L.J. 865, 874 (2009).
  2. Austin Sarat, Vitality Amidst Fragmentation: On the Emergence of Postrealist Law and Society Scholarship, THE BLACKWELL COMPANION TO LAW AND SOCIETY 1, 8 (Austin Sarat ed., 2004).
  3. Out of the fifty-two Israelis registered for the 2008–2010 LSA meetings, thirty participated at the Berlin meeting in 2007.  E-mail from Lissa Ganter to author, supra note 29 in full article.
  4. David M. Trubek, Back to the Future: The Short, Happy Life of the Law and Society Movement, 18 Fla. St. U. L. Rev. 1, 24–31 (1990).
  5. Malcolm M. Feeley, Three Voices of Socio-Legal Studies, 35 Isr. L. Rev. 175, 182 (2001).
  6. Id. at 175.
  7. Austin Sarat & Susan Silbey, The Pull of the Policy Audience, 10 LAW & POL’Y 97, 98 (1988); see also Elizabeth Warren, The Market for Data: The Changing Role of Social Sciences in Shaping the Law, 2002 WIS. L. REV. 1, 3 (2002).
  8. Trubek, supra note 4, at 34–36.
  9. Marc Galanter & Mark Alan Edwards, Introduction: The Path of the Law Ands, 1997 Wis. L. Rev. 375, 383.
  10. Egon G. Guba & Yvonna S. Lincoln, Epistemological and Methodological Bases of Naturalistic Inquiry, 30 EDUC. COMM. & TECH. J. 233 (1982).
  11. Bryant G. Garth, Strategic Research in Law and Society, 18 FLA. ST. U. L. REV. 57, 61 (1990).

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