Law, bureaucracy, and justice (original) (raw)

1985, Qualitative Sociology

If economics is called a "dismal science" because it is centrally concerned with the problem of allocating scarce resources, then the sociology of law ought to be dubbed "joyous" because of the abundance of law. Indeed, the expansion of law through the elaboration of individual rights, contractual relations, and the growth of administrative state institutions is much more than a reflection of changes associated with processes of modernization. Rather, law is a constituent feature of social change. Thus, although Malthus grossly overstated the view that population expands exponentially while food production expands arithmetically, his principles seem to hold with regard to the growth of law and social relations. Yet, beyond the common observation that the legalization of social life has dramatically expanded, scholars take differing evaluative standpoints and alternative methodological approaches to the analysis of law. While each of the books under review is concerned with different aspects of legal development and constitutes a valuable contribution to our knowledge and understanding of particular directions in legal change, a comparison of their central points of view and methodologies suggests both the varieties of legal scholarship and disagreements about policy alternatives. In Justice Without Law?, Jerold S. Auerbach, a historian at Wellesley College and the author of Unequal Jus rice, is primarily concerned with tracing the pattern of development of dispute settlement in American history. He demonstrates that there has always been a tension between relatively informal, community-based resolution in the United States and the resolution of disputes through litigation. Yet, the pattern of dispute settlement has become so dominated by the legal profession and litigation that efforts at nonlegal dispute resolution have tended either to become sources of unequal, inauthentic backwaters created for the convenience of the legal establishment or private enclaves of powerful interests that allow for minimal public scrutiny. While Auerbach is not an idolater of legality and is sharply critical