Social theory and law

Social theory embodies the claim that philosophical analyses, reflections on specific historical experience and systematic empirical observations of social conditions may be combined to construct theoretical explanations of the nature of society – that is, of patterned human social association in general and of the conditions that make this association possible and define its typical character. Social theory, in this sense, can be defined broadly as theory seeking to explain systematically the structure and organization of society and the general conditions of social order or stability and of social change. Since law as a system of ideas can also be thought of as purporting to specify, reflect and systematize fundamental normative structures of society, it has appeared as both a focus of interest for social theory and, in some sense, a source of competition with social theory in explaining the character of social existence.

The relation of legal thought to social theory is, thus, in important respects, a confrontation between competing general modes of understanding social relationships and the conditions of social order. In one sense, this confrontation is as old as philosophy itself. But as an element in modern philosophical consciousness it represents a gradual working-out in Western thought, over the past two centuries, of the implications of various ‘scientific’ modes of interpreting social experience, all in one way or another the legacy of Enlightenment ideas.

From the late eighteenth century and throughout the nineteenth century, criteria of ‘scientific’ rationality were carried into the interpretation of social phenomena through the development of social theory. These criteria also significantly influenced the development of modern legal thought. The classic social theory of the late nineteenth and early twentieth centuries, which established an enduring vocabulary of concepts for the interpretation of social phenomena, treated law as an object of social inquiry within its scope. It sought scientific understanding of the nature of legal phenomena in terms of broad systems of explanation of the general nature of social relationships, structures and institutions.

In the late twentieth century the relationship between social theory and law has been marked by fundamental changes both in the outlook of social theory and in forms of contemporary regulation. On the one hand, social theory has been subjected to wide-ranging challenges to its modern scientific pretensions. It has had to respond to scepticism about claims that social life can usefully be analysed in terms of historical laws, or authoritatively interpreted and explained in terms of founding theoretical principles. On the other hand, the inexorable expansion of Western law’s regulatory scope and detail appears, sociologically, as largely uncontrollable by moral systems and relatively unguided by philosophical principles. Hence, in some postmodern interpretations, contemporary law is presented as a system of knowledge and interpretation of social life of great importance, yet one that has ultimately evaded the Enlightenment ambition systematically to impose reason and principle – codified by theory – on agencies of political and social power.