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Evaluation of Cotterrell's Views on Sociolegal Studies

Info: 1837 words (7 pages) Example Law Essay
Published: 12th Nov 2020 in Example Law Essay

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 In the article, Cotterrell talks mainly about how law connects with the sociolegal network. Cotterrell also talks greatly about how through his own personal experience, he has found and seen that most legal studies tend to focus on technicality instead of the fundamental questions about laws nature[1], sources and consequences as a social phenomenon or even talking about its moral grounds. In many law classes, it can be noted that professors will spend more time discussing the technicality of the law instead of talking about the moral grounds or even the consequences of this technicality. For example, if in class we are talking about a robbery case that is dismissed on a legal technicality because the police officers failed to issue a proper search warrant before searching the robbers house, many a times professors will focus on the issue of the technicality but not really dwell into the laws nature behind this technicality or even talk about the moral grounds of this issue. He discusses how like many other legal academics, he wants sociolegal work to break free from the world of legal scholarship and education and become a part of the fundamental world, as mentioned above, not just always focusing on the legal aspect and technicality of a problem, but also looking at the consequences the issue could cause on the world. He talks about how judges are forced to ride on top of these horses that helped give them the proper legal answer and many a times moral reasoning to a problem is anticipated to be put aside so that “…sophisticated legal thinking could begin.”[2], because apparently to come up with an answer to a legal issue, you need it to always be sophisticated and not something that could be seen as morally right, even if it seems obscure.

 Focusing on the main point of sociolegal studies, Cotterrell talks about how sociolegal scholarship needs more theory that addresses the nature of contemporary law and he talks about how contemporary law needs a theory to map and organize the sociolegal realm. It is here where we can really see that nowadays students are not being taught sociolegal studies in the proper way, because as I mentioned earlier, professors will talk about the legality of something and why it is a technicality, but they will fail to ask students about the sociolegal aspect of the case. In the other article assigned for this assignment, the author talks about the Doctrinal Method[3] and says how the article also touches on saying that the rules in clubs, schools etc.[4], are not always law but it might be interesting to think of them as law for some analytical purposes. Cotterrell also touches on the legal pluralist approach and talks about a number of things, including how they are a core of the sociolegal theoretical tradition, how a legal pluralist’s approach would not deny lawyers or policy makers views of the law but instead supplement, expand and interpret these views in a bigger picture kind of light. There are a number of problems with the legal pluralist theory, however the author does not dwell into the problems or provide potential for the exploration of them. Cotterrell also states that a legal pluralist approach does not force us to say that any rules can be or are law, but we can look at various rules and compare them to state law and see the comparisons between rules and the law. Legal pluralists focus mostly on the question of where the authority of the law resides and whether simple tests legal pluralists conduct explain the legal validity of the laws.

 Cotterrell also talks about Law as routine structuring. He talks about how lawyers have overemphasized many issues relating to law and distorted the social significance of the law[5]. Through this, he talks about how law is often thought of or immediately concluded to be displayed as criminal law or litigation. It is always, you do something bad, you should get punished for it, and while this is true, not all aspects of the law are criminal law. However, even in law schools, their main focus on education is using case-law, which always shows law as a dispute and disorder product, instead of showing as well the social significance that law has in a non distorted way. Cotterrell says that while this may seem like the case and even come off as the case, the situation and stories are completely different when you remove it from the courts and bring it to lawyers’ offices, corporate legal departments etc.[6] In these situations, the law that is used is not merely as a dispute and disorder product, but rather as a means to guide and structure relations, promoting security, limit risks and encourage trust, amongst other reasons. Cotterrell looks at Foucault and states that his idea and work done was to revolutionize the views of law, from being just an image of pathology to showing that law is a resource and convey its normality and pervasiveness.

 Next, Cotterrell talks about legal authority and transnational law. He mentions how the significance of these two ideas flow in two different directions; one being towards recovering a concern in sociolegal studies, and the other towards new perspectives that the state is making and enforcing.[7] He talks about Durkheim who stressed that the law is rooted in social life but did not have any concrete assumptions about the moral cohesions of modern societies. Durkheim said that law is a central concern for social science and said that it has a moral aspect, being apart of everyday values etc., and that without it, there would be emptiness if that moral resonance was absent.[8] He further says how Durkheim’s linking of law and morality is not taken seriously because critics argue whether such a framework even exists and if it does, they wonder how much law really has to do with it, can the law be criticized with societies moral code. In this section, Cotterrell says how sociolegal studies can be the main tool to rethink the law[9] and change aspects of the social in transnational and intranational contexts, which in the end can develop new conceptions of the law.

Throughout this article, I can say that with many points and his view I do agree with what he says. Cotterrell mentions that the law is often observed through the criminal law or litigation view[10] and I agree that this has been the case and continues to be. This is due to the fact that many people say that lawyers and people take the issue to court, they put the person who did something horrible away or charge them with something, therefore it is criminal law or litigation. Though it is true that both of these force the parties to go through the court systems, not all law is in this form. There is civil law, amongst others and many people remain uneducated or not properly educated to know that there is more to law than just criminal law and litigation.

I also agree that transnational regulation exists in limbo and that much of the legal force and validity depend on political sources[11], because they are the ones who basically give the go ahead or speak on behalf of the people on what would be the best and smartest laws in place to protect and prevent conflict. We can see that many a times transnational regulation waits for a “go ahead” sign from someone very powerful, like a Prime Minister, President etc. Unless something very horrible happens or something like the Corona Virus causes an uproar, there is not movement in this transnational regulation. We need to stop depending on political sources for pushing the movement of transnational regulation and rethink how it exists. Transnational regulation cannot always sit in limbo while we wait for the go ahead from a political source or someone of high authority or stature.

Furthermore, I agree that sociolegal scholarship should lead legal studies forward by changing the older views of law and society. You cant always live and follow the ways and rules of those before you. Society changes, times change, environments change. We used to punish people by hanging them and over the years, it has been seen that there have been errors in finding the guilty person, the person should deserve to rot in jail for their actions and not simply get off so easily without having to think about what kind of harm they caused. Times change and we cant always follow the old frameworks that used to be used. Especially in the legal realm, as times move forward, so should the law. Just because we did something one way for hundreds or thousands of years, does not mean that we should continue doing it that way. Look at the example of the minimum voting age in Canada. Throughout hundreds of years, the voting laws have changed so much, from giving women the right to vote, to giving various ethnicities the right to vote and giving the people whose land we are currently on their right to vote. Sociolegal scholarship needs to be more doctrinal, since we learn through history and the law. We have seen how much has changed over the years, youth getting more involved in learning about voting and elections etc., it is time to challenge that sociolegal scholarship and build it into something doctrinal and change the views of law into something that fits this century and this generation. He is right in saying that legal studies must develop a new form for theories.

In Short, I believe that the approach Cotterrell provides us with is a clearer picture of the law. He says that we need to step forward and change the way the law is seen, and I agree completely. We cannot keep following old rules or old standards because like I mentioned above, times change and so should the law and everything associated around the topic.

Bibliography:

  • Anthony Bradney, “Law as a Parasitic Discipline” (1998) 25:1 Journal of Law and Society 71
  • Roger Cotterrell, “Subverting Orthodoxy, Making Law Central: A View of Sociolegal Studies” (2002) 29:4 Journal of Law and Society 632

[1] Ibid at 633

[2] Ibid

[3] Anthony Bradney, “Law as a Parasitic Discipline” (1998) 25:1 Journal of Law and Society 71

[4] Supra note 1 at 638

[5] Ibid

[6] Ibid at 639

[7] Ibid at 640

[8] Ibid

[9] Ibid at 643

[10] Ibid at 638

[11] Ibid at 642

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