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This chapter argues that we should resist imagining the law—anthropology relation as prefigured in the law/society distinction, since that very distinction is inaccessible except in so far as it is worked contingently in relation to the legitimacy of federal powers. If the judicialization of politics and the politicization of law are dominant keys in our age, then law and anthropology together are well placed to sustain the radical relativity of the law—society relation, its real-time timeliness, and the elusiveness of law's dominance within deregulation by attending to contests over the nature and limits of law wherever these are waged. Such affirmations of the nation are not consistently on one side or the other with respect to outcomes. Rather, they press a question on to the competition between cooperative and demutualized renderings of the public and their effects, as markets imagined as consumer-driven increasingly supplant political communities with the legal fiction of self-regulation.

This chapter reviews seven basic categories of thought in Western social and legal theory on the relationship between law and society: classical legal theory, natural law tradition, legal positivist tradition, custom-culture tradition, law and social organisation tradition, selective mirror tradition, and instrumentalist tradition. It appears that the Greeks conceived of positive (or ‘written’) law much as we do, in term of authoritative declarations of the state (keeping in mind that theirs was primarily a city-state, not the nation state of today). Their views are forerunners of the command theory of law, given its definitive formulation by John Austin in the early 19th century. Both Plato and Aristotle believed that the fundamental function of law is the maintenance of social order.

This chapter builds upon the conventionalist approach to law to develop a non-essentialist version of legal pluralism. The analysis proceeds largely in relation to sociological dimensions of legal pluralism, thereby complementing the predominantly legal theory discussed earlier. This and the previous chapter together present a new way of understanding the kinds of legal phenomena operative in society today, and of how they should be studied, in ways that depart from but are also continuous with legal positivism as well as sociological approaches to law.

Powerful as the mirror thesis is, a few voices have expressed caution or outright opposition. This chapter elaborates on concrete social-historical reasons to question the assumption that law mirrors society's customs and morality, as well as assumptions about the social order function of law. The discussion is divided into three sections, the first dealing with legal transplants, the second with the globalisation of law, and the third with the ‘gap problem’. There are two distinct versions of the gap problem: the gap between ‘law-in-the-books’ and ‘law-in-action’, and the gap between legal rules and what people in the community actually do.

This chapter ties all of the strings of the preceding argument together to set out the basic elements of the general jurisprudence. It specifies a replacement for the notion of society, and lays out a typology of sources of social order and a typology of kinds of law. It provides a unifying standard and the core enquiries around which the general jurisprudence is constructed. It also provides a list of tentative hypotheses regarding the relationship between law and society, both to identify fruitful lines of research and to indicate the edifying potential of the general jurisprudence.

This chapter presents theoretical challenges to the portrait of the relationship between law and society. Almost every major strain of Western legal and social theory has articulated, or taken for granted, an account of the relationship between law and society as one of close integration and association. It is widely and routinely assumed that law reflects and mirrors society, and operates to maintain social order. The chapter argues that the selective mirror and instrumental traditions, while they continue to hold onto mirror beliefs, had by implication taken the first steps down a path that ultimately leads away from the mirror thesis, at least as a taken for granted assumption about the nature of law. It articulates and challenges the two legitimating myths about the origins of law that dominate Western theory and consciousness, and examines the implications of the monopolisation of legal knowledge by professionals.

This chapter draws attention to the vital role of interdisciplinary perspectives in law, history, sociology, and political science in redirecting our understanding of the origins, development, and nature of the American state. It highlights the particularly formative role of an emerging theoretical literature concerning the character of statecraft in modern democratic regimes. The paper begins with an acknowledgment of the difficulty of the state concept as articulated in the diverse contributions of American history, political sociology, and American Political Development. It goes on to question the predominance of the essentially bureaucratic and Weberian model of the state that has governed thinking about and controlled discussion of the American state for the last two generations. It concludes by using the interdisciplinary perspectives that have recently emerged in socio-legal studies in the United States to generate an alternative approach to American state development that takes account of the nature of democratic rule as well as the fungibility of the state/society boundary.

Fundamental changes have occurred in the way in which theorists talk about and understand the relationship between law and society, changes that have taken centuries to develop and are the result of a cluster of philosophical, political, economic, social, and cultural factors. This chapter elaborates on several key changes. The instrumental tradition is a product of and has contributed to these changes. The chapter presents a theoretical challenge to the mirror thesis based on a law-society framework consisting of the following elements: custom/consent, morality/reason, and positive law.

This chapter proposes a conventionalist approach to the concept of law and comprehensively reconstructs legal positivism into what is called socio-legal positivism. This extensive discussion of legal positivism recognises the heritage of general jurisprudence as a legal positivist enterprise, and furthers a project begun in the book Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law. One of the key themes in this book was to infuse legal theory with insights from social scientific approaches to law, and vice versa. Socio-legal positivism attempts to accomplish this in an integrated fashion.

A formidable threshold task in the project to construct a general jurisprudence is to come up with a characterisation of the law-society relationship. This relationship is too complex and unruly to capture fully in a single formula, and can be approached from too many different perspectives. This chapter describes a working framework for the relationship between law and society, pared down to two basic components. The first component consists of two core themes about the relationship between law and society: the idea that law is a mirror of society and the idea that the function of law is to maintain social order. The second component consists of a breakdown of connections between three elements: custom/consent, morality/reason, and positive law. Every theory about law and society encompasses one or another or both of these components.

This chapter provides theoretical perspective on court activity in the early American republic, in general, and on plea bargaining, in particular. It describes the strengths and weaknesses of alternative theoretical perspectives on law and suggests that what the law does is establish the scope and limitations of state power, consolidate relations of citizenship, and shape forms of organizing. The chapter also discusses existing theories about law and society, including those of Antonio Gramsci, Michel Foucault, and Jürgen Habermas.

There are several ways of examining law in society. Such disciplinary approaches would include a historical approach, a political science approach, an economic approach, and approaches from other fields of social science like sociology, psychology, anthropology. Each of these approaches has its own aims and methods. This book uses an approach that is located within socio-legal studies or law-and-society, and this approach aims to understand law as a part of society as it has a distinct social form while it becomes interconnected with other social forms. The method for this approach consist of identifying the features of a legal order that are important in determining social facts that affect the actions of citizens and officials and examining the implications and meanings associated with these features.

The state of legal education in England had been a cause for public concern for some twenty years before the creation of the School of Law and Modern History at Oxford University in 1850. Such concern was greatly overdue. Until 1828 and 1829 when John Austin and Andrew Amos began lecturing at what was to become University College London, there had been for many years no effective public teaching of law anywhere. In 1833, the Incorporated Law Society was moved to begin the provision of courses for articled clerks. But there was little else. It was in these circumstances that in 1846 a Select Committee of the House of Commons was appointed to inquire into the state of legal education in England and Ireland. It reported in the same year and the evidence which it heard made plain, among other things, the emptiness of even such legal education as Oxford ostensibly provided.

All producers seek protection from the competition that is the defining characteristic of market economies. The first line of defence is control over entry. By the beginning of the nineteenth century, the Bar had long enjoyed professional status. It took the entire nineteenth century for the practising Bar to double, and it did not recover from the 25% loss suffered during World War I. After the Law Society required the first professional examination in 1836, the number of solicitors stagnated. However, the post-war era initiated a major transformation and starts at the Bar increased. In the late 1980s, however, the profession was concerned about a ‘recruitment crisis’, not overcrowding. Finally, the profession was no more able to control the ebb and flow of supply than Canute to halt the tide. Its efforts to do so during this decade further delegitimated its claim to speak in the public interest.

Evidently, legal orders has evolved in such a way that although some laws retain a basis of general standards like early common law, others rely on the rules that are being acted out by legislature. A debate exists, however, about the right balance between an open discretion and detailed rules that are easy for both the law-makers and law-abiders to understand. Various sets of social relations help provide the normative structure of law as some rules like those concerning contract and property possess clarity while the rules concerning the regulation of certain transactions adapt more discretion. In conducting a careful study of the normative structure of law, one must take into consideration the social formations involved. Legal theory and law-and-society are different because of the lack of qualities of a fully modern system.

The Introduction places the book in the context of the larger “law and society” literature and explains why the legal official at the center of the book, the muhtasib, is an ideal point of entry into the practice of law in Mamluk Egypt. The Introduction explains how this book follows in the line of studies that have used court records from historical Muslim societies and those that have used fatwas, the legal opinions of muftis. It discusses the sources used in the book and presents the book’s methodology, and then outlines the contents of the remaining chapters.