1 Donald Black, The Behavior of Law (New York: Academic Press, 1976).Google Scholar

2 It is interesting to note that the Law and Society Association was founded in 1964, a time coinciding with the coalescence of efforts to build a more systematic science of law.Google Scholar

3 On the legal realist's demystification and naturalization of law see Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935), and Lon L. Fuller, American Legal Realism, 82 U. Pa. L. Rev. 5 (1934).Google Scholar

4 During the middle of the nineteenth century, “legal science” was a “rhetorical monopoly of a status-hungry elite of legal thinkers.” Morton Horwitz, The Transformation of American Law 266 (Cambridge: Harvard University Press, 1977). But through its claim to a scientific, objective, and apolitical conception of law it was able to “extend its domain and to infiltrate into the everyday categories of adjudication.”Google Scholar

5 Durkheim was a French sociologist whose published work at the end of the nineteenth and beginning of the twentieth centuries became extremely important for the emergence of American sociological thought. Central to his approach was the view that “society” in general and “social facts” (e.g., religion, law, kinship systems, etc.) in particular, were the decisive forces in the organization of social life. In contrast to those of his day who worshiped “the individual,” Durkheim emphasized the power and binding force of social customs and institutions. Borrowing many of the biological metaphors that guided social thought during the last quarter of the nineteenth century, Durkheim depicted society as an “organism” that preserved its integrity through a series of integrative mechanisms (including law) and was transformed through a gradual process of social differentiation, During the 1950s and 1960s, this portrait proved increasingly attractive to American sociologists who sought a systematic explanation of' “social disorganization” on the one hand and the normative roots of legal rules on the other. It was within this context that the first systematic attempts to study law as a social phenomenon emerged in American society.Google Scholar

6 See Roberto Unger's Law in Modern Society (New York: Free Press, 1976) for a discussion of how law, state, and society are divorced in liberal legal theory.Google Scholar

7 Steven Spitzer, The Dialectics of Formal and Informal Control, in 1 Richard L. Abel, ed., The Politics of Informal Justice 167 (New York: Academic Press, 1982).Google Scholar

8 For an overview of this history see Elizabeth Mensch, The History of Mainstream Legal Thought, in David Kairys, ed., The Politics of Law 18 (New York: Pantheon, 1982).Google Scholar

9 This metaphor is employed by Allen Wood, The Marxian Critique of Justice, 1 Phil. & Pub. Aff. 244 (1972), in discussing the determinist misreading of Marx's writing on justice.Google Scholar

10 Paul Hirst, On Law and Ideology (Atlantic Highlands, N.J.: Humanities Press, 1979).Google Scholar

11 David Garland, Durkheim's Theory of Punishment: A Critique, in David Garland & Peter Young, eds., The Power to Punish 37 (Atlantic Highlands, N.J.: Humanities Press, 1983).Google Scholar

12 See, e.g., the work of F. James Davis, Law as a Type of Social Control, in F. James Davis et al., eds., Society and the Law: New Meanings for an Old Profession 39 (New York: Free Press, 1962); Kai Erikson, Wayward Puritans (New York: John Wiley, 1966); Black, supra note 1; Albert Bergesen, Social Control and Corporate Organization: A Durkheimian Perspective, in 2 Donald Black, ed., Toward a General Theory of Social Control 141 (New York: Academic Press, 1984).Google Scholar

13 For an early and important delineation of this problem see Talcott Parsons, The Structure of Social Action (New York: McGraw-Hill, 1937).Google Scholar

14 For the most pertinent presentation of his work on the subject see Piers Beirne & Robert Sharlet, eds., Pashukanis: Selected Writings on Marxism and Law (New York: Academic Press, 1980).Google Scholar

15 Boaventura de Sousa Santos, Popular Justice, Dual Power and Socialist Strategy, in Bob Fine et al., eds., Capitalism and the Rule of Law 151 (London: Hutchinson, 1979).Google Scholar

16 Emile Durkheim, The Rules of Sociological Method 143 (London: MacMillan, 1982).Google Scholar

17 See my discussion of “economism” in Steven Spitzer, Marxist Perspectives in the Sociology of La%, 9 Ann. Rev. Soc. 103 (1983).CrossRefGoogle Scholar

18 Discussions of Weber's relevance to the understanding of law may be found in David Trubek, Max Weber on Law and the Rise of Capitalism, 1972 Wis. L. Rev. 720; Piers Beirne, Ideology and Rationality in Max Weber's Sociology of Law, in 2 Steven Spitzer, ed., Research in Law and Sociology 103 (Greenwich, Conn.: JAI Press, 1979); Maureen Cain, The Limits of Idealism: Max Weber and the Sociology of Law, in 3 Spitzer, supra, at 53 (1980); and Anthony Kronman, Max Weber (Stanford, Cal.: Stanford University Press, 1983).Google Scholar

19 See, e.g., Alvin W. Gouldner, The Coming Crisis of Western Sociology (New York: Avon, 1970).CrossRefGoogle Scholar

20 See Steven Spitzer, Punishment and Social Organization: A Study of Durkheim's Theory of Penal Evolution, 9 Law & Soc'y Rev. 513 (1975); and Notes Toward a Theory of Punishment and Social Change, in 2 Spitzer, supra note 18, at 207; Leon S. Sheleff, From Restitutive Law to Repressive Law: Durkheim's The Division of Labor in Society Revisited, 16 European J. Soc. 16 (1975); Garland, supra note 11; W. Paul Vogt, Obligation and Right: The Durkheimians and the Sociology of Law, in P. Besnard, ed., The Sociological Domain: The Durkheimians and the Founding of French Sociology (Cambridge: Cambridge University Press, 1983).Google Scholar

21 For a presentation of the view that the study of law and society should be recast in terms of law and “societies” because “state law is integrally constituted in relation to a plurality of social forms” see Peter Fitzpatrick, Law and Societies, Osgoode Hall L.J. (forthcoming).Google Scholar

22 See the discussion of infrastructure and superstructure as it relates to theorizing about law in Spitzer, supra note 17.Google Scholar

23 One such popularizer was Kai Erikson in his well-known Wayward Puritans, supra note 12. For a critique of his appropriation of Durkheim see Lukes & Scull at 21.Google Scholar

24 A fascinating discussion of Marx's conception of social change is provided in Marshall Berman, All That Is Solid Melts Into Air (New York: Simon & Schuster, 1982).Google Scholar

25 For an appreciation of how Weber dealt with the anomalous development of legal innovation in England see 2 Max Weber, Economy and Society, ed. Guenther Roth & Claus Wittich, at 753 (Berkeley: University of California Press, 1978). On some of the problems with and the utility of Weber's “rationalization thesis” see Beirne, supra note 18; Spitzer, supra note 7; and Steven Spitzer, The Rationalization of Crime Control in Capitalist Society, in Stanley Cohen & Andrew Scull, eds., Social Control and the State 312 (New York: St. Martin's Press, 1983).Google Scholar

26 This position is developed in Theodor W. Adorno, Negative Dialectics (New York: Seabury Press, 1973).Google Scholar

27 Garland, supra note 11, at 59.Google Scholar

28 Some of whom include Georg Rusche & Otto Kirchheimer, Punishment and Social Structure (New York: Columbia University Press, 1939); Michel Foucault, Discipline and Punish (New York: Pantheon, 1977); and Peter N. Grabosky, The Variability of Punishment, in 1 Donald Black, ed., Toward a General Theory of Social Control 163 (New York: Academic Press, 1984).Google Scholar

29 See, e.g., Colin Sumner, Reading Ideologies: An Investigation into the Marxist Theory of Ideology and Law (London: Academic Press, 1979), and the work being done in the critical legal studies movement, some of which is discussed by Roberto Unger, The Critical Legal Studies Movement, 1983 Harv. L. Rev. 561.Google Scholar

30 On the hegemony of law see Stuart Hall et al., Policing the Crisis (London: MacMillan, 1978), and Edward Greer, Antonio Gramsci and “Legal Hegemony,”in Kairys, supra note 7, at 304.Google Scholar

31 See Charles Reich, The New Property, 73 Yale L.J. 778 (1964); Andrew Fraser, The Legal Theory We Need Now, 40–41 Socialist Rev. 147 (1978), and id., The Corporation as a Body Politic, 57 Telos 5 (1983); and Clifford D. Shearing & Philip C. Stenning, Modern Private Security: Its Growth and Implications, in 3 Michael Tonry & Norval Morris, eds., Crime and Justice 193 (Chicago: University of Chicago Press, 1981).Google Scholar

32 On the problems associated with historicizing the relationship between capitalism and law see Spitzer, supra note 7.Google Scholar

33 Richard W. Fox & T. J. Jackson Lears, The culture of Consumption (New York: Pantheon, 1983).Google Scholar

34 Frank Hearn, State Autonomy and Corporatism, 8 Contemp. Crises 125 (1984).CrossRefGoogle Scholar