Conceptualizations of law within social contexts

This work is at a cross-section of several disciplines, drawing on more fields than may be assumed at first glance. Initially conceived as a project combining law and history by virtue of the colonial context, the research’s emphasis on law’s effect on society requires attention also to be given to sociological theories.

The field is a well-established one. Sabine Frerichs identifies three generations of socio-legal thought, clarifying the various conceptualizations of Law which may arise when it is placed in relation to other disciplines.^[47] Frerichs observes that the idea of “Law and Society”, frequently applied as an all-encompassing label for scholarship on this subject, is in fact “misleading”, for it already assumes the two to be separate.^[48] Underpinning her identification of three generations within soci­ological legal theory is her classification of three approaches, which she condenses into the following headings: “Law in...”, “Law and...” and “Law as...”.

The first generation was, according to Frerichs, concerned with “law in soci­ety”, and characterized by a generally historical approach wherein law was pre­dominantly conceived as an integral part of society.^[49] Scholars such as Emile Durkheim, Karl Marx and Max Weber dominate this era. Most relevant to this research is the work of Karl Polanyi, who in his seminal contribution expounded upon the idea of “embeddedness”, which is discussed in more detail below.^[50] Frerichs deems the second generation, the “law and society” approach, as realist, influenced primarily by positivism, wherein sociology and jurisprudence are stud­ied with emphasis on how the two areas relate to each other.

This development towards a more constructivist approach in socio-legal thought has also been observed by other commentators. According to Roger Cotterell, progressive legal scholars have been become less concerned with the traditional perspective which queries how society produces law and instead ask how law produces society.^[53] This work finds itself falling into this category - for how colonial laws have shaped Mauritian society is indeed the overarching theme of this study. The question arises whether such research is sociological or legal. Cotterell observes that the field of socio-legal studies lacks clear demarcation, being not a definite sub-set of either discipline. However, he believes this ought not to be regarded as a shortcoming of the field, for “disciplinary boundaries should be viewed pragmatically; indeed with healthy suspicion. They should not be prisons of understanding.”^[54] According to Cotterell the issue is not whether socio-legal scholarship is valuable, but rather, what the benefits of such inquiries are, specifically for lawyers and others involved in legal processes.

Cotterell provides three “postulates” for a sociological interpretation in the legal context:^[55] firstly, law is to be regarded as “an entirely social phenomenon”, in the sense that it gives expression to social relationships. Secondly, that under­standing must be underpinned empirically, that is, through an examination of “historical patterns”. Finally, the assessment must be systematic, as opposed to anecdotal, for the aim is to draw broader conclusions from the specificities of a study. The work at hand follows this approach in method, if not by design. The subject of this research inevitably requires an analysis of trends in the coloniza­tion of Mauritius, satisfying Cotterell's second postulate. The first one is a given for any inquiry that ventures to assess law's impact on society. The third postulate finds expression in the final chapter of this work.

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