An Analytical Map of Social Scientific Approaches to the Concept of Law

Abstract

An intractable puzzle brought almost to a standstill the development of theory in the social scientific study of law from the 1950s through the 1970s. The debate over a social scientific concept of law was the central focus of theoretical discussion during this period. The puzzle lies in the fact that the debate seemed incapable of resolution. There appeared to be almost as many concepts of law as there were theorists, with no apparent means to determine which concept, if any, was the correct one. Legal philosophers have also long been exercised by the question of what law is, as H. L. A. Hart noted on the very first page of The Concept of Law.' But a lack of agreement has not been as debilitating. Legal philosophers, especially those in the positivist tradition, have the luxury of focusing on state law. Many social scientists, in contrast, consider state law to be an unacceptable starting point because it does not comprise a scientific category, and more so because application of the state law model would result in the conclusion that many societies (historically speaking) did not have law. Especially for legal anthropologists, this smacked of Western ethnocentrism. This mix of scientism and concern about ethnocentrism resulted in analytical gridlock. Scientists who declared-at the outset of the enquiry-that 'No society is without law',2 were inevitably led to identify a different concept of law from those scientists who believed that whether or not particular societies have law should be an empirical question, one that can be answered in the negative. After decades of heated exchanges, with no apparent progress, scholars in the field became frustrated with the issue. The debate over what is law? was characterized as 'endless wrangling' which operated 'to the hindrance of more