Philip Selznick by Krygier Martin;

Author:Krygier, Martin;
Language: eng
Format: epub
Publisher: Stanford University Press
Published: 2012-09-15T00:00:00+00:00

LAW AND SOCIETY IN TRANSITION

Though Law and Society in Transition is small, its ambitions are not. Most generally, they are to contribute to “a reintegration of legal, political, and social theory.”13 Central to this large enterprise is “to recast jurisprudential issues in a social-science perspective.”14 There are theoretical reasons to do this, and practical ones too.

Theoretically, it is crucial “to grasp the significance of variation.”15 Philosophical accounts of the concept of law tend not to do this. Staples of legal philosophy are built around universal answers to single questions: What is law? What is the relationship between law and morality, between law and coercion, law and politics, law and reason? And so on. Typically such questions are posed as though a single universal answer is appropriate to each of them: For John Austin, law is the command of a sovereign, while for H. L. A. Hart it is a system of two types of rules. For natural lawyers there is a necessary connection between law and morals, for legal positivists, not.

Selznick believes, by contrast, and thinks it a natural and fundamental sociological insight, that law and the relationships between it and other phenomena, like all social phenomena, vary in characteristics, presence, and salience. Moreover, these variations are not merely random or contingent but systematic and susceptible of explanation. Thus one turns to “a social science strategy [that] can more readily and explicitly recognise the plurality of legal experience.”16

Not only do philosophy and sociology need connection; as pragmatists had long taught, theory and practical consequences also will benefit from alignment with each other. Connecting theory and practice was of course Selznick’s long-standing aim and was concurrently becoming institutionalized in the JSP. That aim and that program both rested on the belief that “jurisprudence gains focus and depth when it self-consciously considers the implications it has for action and institutional design. Philosophical analysis, in turn, helps ensure that basic issues of policy are closely examined, not buried under unscrutinized assumptions and perspectives.”17

More concretely still, the book is an attempt to respond to challenges to the legitimacy of law that had emerged in America, and elsewhere in the developed world, most dramatically in the 1960s. From these tumults of criticism, questioning, response, and defense, emerged “a continuing tension between two approaches to law, freedom, and social control.” One was a “low-risk view of law and order” that is alive to the fragility of social orders, the centrality of law within them, the precariousness of “systems of authority and civil obligation.” It insists on obedience to law by citizens, strict observance of it by officials, and a strict separation among the institutions, values, and justifications that go into the making and evaluating of laws, on the one hand, and those appropriate to the interpretation, administration, and application of them, on the other. Contesting this view is a “high-risk view of law and order,” that “emphasizes the potential resilience and openness of institutions . . . is more careless of authority, more accepting of challenge and disarray,” values law “as a resource for criticism and an instrument for change .

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