Common Ground? Law and Society, Punishment and Society, and Social Theory

I have been thinking through framing an article I'm writing about a particular period of penal transition. Ironically, while I think of Punishment and Society as a subfield of Law and Society---or sometimes as bridge between L&S and Criminology---I do think that there are some projects that are more specifically P&S and less L&S. Barring an epiphany, my current project falls in this category. How is it that a project within a subfield doesn't fit easily within the larger field?


I thought a lot about the relationship between P&S and L&S two summers ago when I was prepping my Law and Society syllabus for criminology undergraduates. My goal was to pair a mainstream or civil law example from L&S and match it with a criminal justice/punishment example illustrating the same or similar themes. (It worked out pretty well eventually, and much better the following year after further revision.)

The first step was to think about the key aspects of L&S, identify the "canon" essentially. I reviewed Trevino's (1996) The Sociology of Law, Sutton's (2001) Law/Society, and now Calavita's (2010) Invitation to Law & Society. There are also some nice articles reviewing law and society's canon:  Garth and Sterling (1998) "From Legal Realism to Law and Society"; Seron and Silbey (2004) "Profession, Science, Culture"; Mather (2008) "Law and Society"; and Edelman and Galanter's "Law: Overview" encyclopedia piece. We can go back really far to Skolnick's (1965) "The Sociology of Law in America."  There are also edited volumes, like Sarat's (2004) Blackwell Companion (containing several of the pieces cited above), and various presidential addresses. I also reviewed different professors' field exam syllabi, and others' undergraduate and graduate versions of law and society classes to get a sense of the common segments or core areas. Obviously, it varied some person to person, and everyone tended to include a section that was particularly interesting to them, reflecting their own research.

In the course of my review, I started to think about the differences between L&S and P&S. I'll just focus on one right now: the influence of Social Theory.

Social theory is a common heritage for our two---dare I say it?---disciplines. The vast majority of L&S syllabi, field exams, and article overviews include a section on social theory--Durkheim, Marxists, Weber,... Ellias maybe..., Foucault, Bourdieu. For P&S folks, this heritage is recognizable. If P&S were a religion, I would argue Garland's Punishment and Modern Society is our Bible. But what is striking is, I think we use social theory in different ways. While social theory is often the starting point for both sets of scholars, punishment scholars have ended up with a very different focus than L&S scholars. And I think it's because we focus on some different questions---questions' whose heritage is more squarely based in this classic social theory.

This brings me back to my in-progress article: at the broadest level, my article focuses on penal change. I think of this as a fairly core P&S project. But I could not, for the life of me, think of a core area or canonical text in L&S that looks at legal change. (Legal history is another story, but I would argue it holds a similar position to P&S vis-a-vis L&S.) Some folks might become apoplectic at my statement that L&S doesn't really examine legal change. But my interpretation is that, to the extent L&S is interested in legal change, it looks at social change and how law plays a role in that. By contrast, P&S is often interested in why punishments change and how society plays a role in that. (To be sure, we also look at the effects of penal change on society.)

Perhaps I am splitting hairs. It could be an issue of perspective or definition. But I'm not sure it is. For example, a classic debate in L&S is can courts make a difference---can social movements cause change---should SMs or legal activists go through the courts? Rosenberg's main question was not how was Brown v. Board possible, but what effect it had.  At a more general level, this is a question about legal change, but it is about legal change in practice. To some extent, L&S scholars do not care so much if a right exists (though we would become apoplectic if these rights did not exist), but rather if the right is meaningful. And for a right to be meaningful, we have to get into its social context---we have to see if there is social acceptability and such.

By contrast, it seems to me, when P&S scholars study penal change, we are interested in what change looks like in practice, but possibly as a second order question (I write, as someone working on a book that includes many discussions of prison in practice). Instead, the first-order question is how the penal change comes about at all. And this is where our social theory heritage is stronger---I would argue---than it is in L&S. Durkheim's two laws of penal evolution outline the social mechanisms by which penal change occurs. Foucault examines the political preconditions for certain technologies of punishment. More recently, Beckett examines how politicians changed popular penal preferences and ultimately penal policy and Page examines the correctional officers' union's role in sustaining California's onward march to and through mass incarceration. We care about transitions.

Why is there this difference in L&S and P&S approaches? Seron and Silbey (2004) argue that L&S folks took their core questions from the legal realists who were interested in the gap between law on the books and law in action (see also Garth and Sterling), whereas Durkheim, Marxists, Weber, Elias, and Foucault focused much more on issues of "modernization and social change." While not mechanically applying the lessons of social theory, L&S scholars’ accounts are often heavily influenced by Foucault’s focus on power as an omnipresent and not-always-top-down phenomenon, Weber’s understanding of legitimacy and bureaucracy, and the Marxist concern for the Have’s oppression of the Have Nots. Increasingly, Bourdieu’s concept of the field has become an influential framework as well. (L&S scholars also draw from feminist theory and critical race theory.) However, while social theory remains in the background by informing scholars’ assumptions and approaches to research questions, social movements and organizational theory have recently become important influences in the foreground of more recent studies.

By contrast, I would argue P&S scholars remain more wedded to classic social theory, even while we are also turning to feminist theory, critical race theory, and (self-plug) organizational theory. Although studies drawing directly and heavily on these foundational thinkers are few and far between, many of our studies seem to share the same spirit: examining what drives penal change---and locating that change in some change in society. For example, even if we are not directly using social solidarity, civility, labor markets, or changing political regimes as our primary mechanism, we still locate penal change in big social (political, economic, cultural) changes like the emergence of neo-liberalism, the perceived failure of the welfare state, the role of the media and politicians' machinations, etc.

Our biggest arrow points from society to punishment, while L&S scholars' biggest arrow points from law to society: how law structures cognition, social practices, consciousness, inequality, etc.

The L&S focus on law on the books v. law in action lends itself less to an interest in legal change but on legal practice. I would argue that some of the core areas of L&S are processes---not necessarily processes of change, but processes that show the law in action: e.g., disputing, legal mobilization, legal endogeneity, judicial process. By contrast, punishment scholars have primarily focused on change over time or across space in the use or nature of various penalties, especially moments of development and innovation or decline and withdrawal. In some ways, this difference translates into a difference in units of analysis: L&S scholars often examine processes between people or groups while P&S examines state or national-level developments. Consequently, there is a much heavier emphasis on elites---politicians, judges, DOC directors, unions---than on ordinary people (except through public opinion surveys, which isn't exactly an individual level).

Someone reading this from the outside might think P&S and L&S have almost nothing in common. As my L&S syllabus eventually demonstrated, we do have a lot of common themes and interests with L&S. In fact, some of our strongest and most recent developments are, I would argue, squarely L&S, too. For example, I'm really excited by the increased attention on disagreements, gaps, variation and lags that demonstrate the inhomogeneity of penal trends and practice. Related to the L&S focus on law's constitutive and socially constructed nature, P&S scholars are moving to expand our definition of punishment to something closer to social control so we can stretch the boundaries of what we study from narrowly defined criminal sanctions to legal orders that act similarly to punishment but are not officially punishment. Finally, central to the L&S commitment to examining law and inequality, since around 2006, we've had tremendous interest in the social consequences of mass incarceration. But when I think about penal change as one of our core areas, I can't help but feel like, while it is L&S, it is not necessarily core to L&S.

I think it is for this reason that I am increasingly thinking of L&S as a venn diagram with a bunch of different subfields that are also subfields of other disciplines (history, sociology, criminology, political science, etc.), but are also more than a subfield, but a discipline in their own right. Increasingly, I think of P&S as the way to translate L&S ideas for a mainstream criminology audience. Certainly, that is not its only purpose or utility, but it is a way to make the world a more interdisciplinary place.