Timasheff - What Is Sociology of Law

N. S.
Timasheff's Sociology of Law

Author(s): David Schiff
Source: The Modern Law Review, Vol. 44, No. 4 (Jul., 1981), pp. 400-421
Published by: Wiley on behalf of the Modern Law Review
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N.S. TIMASHEFF'S SOCIOLOGY OF LAW
INTRODUCTION
AT the University of St. Petersburg in the years preceding the
October revolution a group of students known as the " Petrazitsky
group" emerged. The leading members of this group were G. D.
Gurvitch, P. A. Sorokin and N. S. Timasheff. All three may be
considered as revisers of Petrazitsky's jurisprudence, as well as
leading sociologists in their own rights. The contemporary revival
of interest in Petrazitsky's jurisprudence is likely to produce a
corresponding revival of interest in the major contributions to the
sociology of law of his former students.
Timasheff's wntings on the sociology of law span the period
from 1916 to his death in 1970, and draw heavily from develop-
ments in both the Continental and Anglo-American traditions.
(After leaving Russia in 1921 he lived and worked in Germany,
Czechoslovakia, France and the United States). Nearly as a
matter of course, theoretical research in the sociology of law seems
to demand at least one reference to Timasheff's writings. However
many of these references demonstrate a lack of understanding
of what Timasheff's sociology of law is. His approach was to analyse
law solely in terms of fact, to create a thoroughgoing realistic
theoretical model for the sociology of law.
This article attempts to draw out the key points of Timasheff's
sociology of law, and to present a critique of them. Serious
criticism is levelled at much of Timasheff's analysis; however, one
part of his theory is presented as being of continuing relevance
to the development of the sociology of law, as a contribution to
a social construction theory of law.
JURISPRUDENTIAL BACKGROUND
A number of contiguous themes appear in attempts to define or
or analyse or describe law as a diSerentiated and/or distinguishable
cateigory and/or phenomenon. One of these themes is to include
or exclude all of those closely related or peripheral " things 71
whose characteristics may be associated or dissociated in accor-
dance with the particular theory advanced. Within the tradition of
jurisprudential writings the central set of ideas subject to such tests
are law and values. Hence an underlying theme of jurisprudence
is whether it is either feasible and/or desirable to oSer a value-free
definition of law. Positivism within jurisprudence offers a number
of tenets among which are the propositions that there is no
necessary connection between law and any given set of values,
1 Such a variety of descriptive notions are utilised in theories dealing with these
questions, that it is difflcult to find an appropriate word or phrase, hence the
rather unhelpful and general word " things."
400
July 1981] N. S. TIMASHEFF S SOCIOLOGY OF LAW
401
and, that the study of law is possible and, even desirable, apart
from policy (value-based) considerations.2
These propositions become confusing when applied to the theory
of the jurist Hans Kelsen. His description of law locates law
structurally within a series of interconnecting norms deriving their
validity from a basic norm as a part of a coercive order. Values
of any kind are excluded, in the pursuit of an " osbjective " purity
of description, although the debate continues as to whether the
basic norm is free from such imperfection.3 However, law is
described as normative: propositions of an " ought-kind." The
link between norms within the system is validity, not efficacy;
the norms propose commands, permissions or authorisations4 of
what ought to be done, not what will occur. This sophisticated
theory attacks what appear to be two paradoxical problems. Can
law be described as value free? Yes. Can law be described in
factual terms? No. Laws (in terms of their content) are not facts
but norms (ought propositions), but such norms are value free.
But if values can be excluded at this descriptive level, why
cannot law be described outside ethical experience purely in real,
behavioural, factual terms? Because, according to Kelsen, such
attempted descriptions amount to definitions of society, not of
law.5 Law can be dif3erentiated from values, from considerations
within the scope of moral philosophy (first differentiation),6 and
social or psychological facts within the discipline of sociological
investigation (second differentiation).
The first differentiation is formulated by description of a legal
normative order as a coercive normative order whose primary
norms are stipulations to officials to impose sanctions. This
contrasts, for example, with a religious normative order whose
primary norms are directed to the general public and unconnected
with or not necessarily dependant on any stipulation as to human
enforcement. The second differentiation, of legal from social orders,
2 For a useful account of the tenets of positivism, see H. L. A. Hart, " Posi-
tivism and the Separation of Law and Morals " (1958) 71 Harvard Law Review
601-602, note 25.
3 Sce J. Stone, "Mystery and Mystique of the Basic Norm " (1963) 26 M.L.R.
3v50; R. W. M. Dias, " Legal Politics: Norms behind the Grundnorm " [1968]
C.L.J. 233-259; J. M. Eekelaar, " Principles of Revolutionary Legality " in Oxford
Essays in Junsprudence (2nd series), [A. W. B. Simpson, ed., 1973], Chap. 2; but, in
reply see H. Kelsen, " Professor Stone and the Pure Theory of Law " (196F65)
17 Stan.L.Rev. 1128-1157; and J. W. Harris, " When and Why does the Grundnorm
Change? " [ 1971 ] 29 C.L.J. 103-133.
4 Kelsen describes norms as " ought propositions " and gives to ought propositions
these extensive " directive " classifications.
5 H. Kelsen, General Theory of Larw and State, translated by A. Wedberg (1945),
pp. 2629, 176178; H. Kelsen, " Zur Sociologie des Rechts " (1912) XXXIV,
Archiv fur Sozialwissenschaft und Sozialpolitik 601-614 and " Eine Grundlegung der
Rechtssoziologie " (1915) XXXIX. ibid. 839-876.
6 " What distinguishes the legal order from all other social orders is the fact that
it regulates human behaviour by means of a specific technique . . . if we define law
simply as order or organization, and not as a coercive order (or organization), then
we lose the possibility of differentiating law from other social phenomena...."
H. Kelsen, General Theory of Iwaw and State, op. cgt. p. 26.
VOL. 44 (4) 2
402 THE MODERN LAW REVIEW [Vol. 44
was formulated by Kelsen as a criticism of Petrazitsky.7 TimasheS

represents Petrazitsky as arguing that the logic of a coercive system
involves an infinite regression from the person coerced back to
the coercer, back to his coercer, etc., until one can no longer
describe the acting individual as acting within a coercive system
because such action will be impelled by other motives.8 But, argues
Kelsen, rules of law are not @eefivc coercive assertions, they are
rules providing sanctions. Even if the rule conferring validity
within the order does not effectively coerce the application of
the sanction, its content incorporates a coercive element.9 At this
point the study of law as part o-f social reality and law as an
identifiable and differentiated phenomenon (sociology of law and
jurisprudence) part company. The tests of a sociological theory
of law and that of a jurisprudential theory are thereby distinguish-
able. The former depends on whether the theory adequately
presents legal reality as a part of social reality (without miscon-
struing either element), the latter is a presentation of a diSerentiated
or distinguishable reality per se (subject to one's understanding of
reality as wide enough to include the problematic notion of
" normative facts ").10 In presenting the main trends of Timasheff's
sociology of law, the above argued basic distinction needs to be
adhered to. For in defining law Timasheff is defining the social
reality of law and thereby postulating a specific relationship between
sociology of law and jurisprudence.
The following are the questions that will be dealt with in the
course of this article: What distinction does Timasheff draw
between sociology of law and jurisprudence; what methodological
and theoretical premises does he employ; how does he analyse
the major conceptual components of his sociology of law (namely
law, power and ethics); what is the relationship between his own
theory and that of others (particularly those within the same
tradition, namely Petrazitsky, Gurvitch and Sorokin) 11; and, thereby,
what relationship between legal and social reality does he postulate?
The major evaluative question to be considered is whether Tima-
sheff's sociology of law has anything significant to offer in terms
of the continuing development of the sociology of law.
7 Ibid. p. 28.
8 N. S. Timasheff, An Introduction to the Sociology of Law (hereinafter referred
to as " Introduction ") (1939, reprinted 1974), p. 264.
9 H. Kelsen, op. cit. p. 29.
10 For utilisation of notion of " normative facts," see L. Petrazitsky, Law and
Morality: Leon Petrazitsky (translated by H. W. Babb, introduction by N. S.
Timasheff, 1955), pp. 251-254 and many other references, for which see Index-
G. Gurvitch Sociology of Law (1947), p. 30; for critique of the feasibility of such a
notion, see N. S. Timasheff, " Law in Pareto's Sociology " (1940) 46 American
Journal of Sociology 139-149; for general jurisprudential critique, see A. V.
Lundstedt, Legal Thinking Revised (1956), Chap. I.
11 See B. Horvath, " Timasheff and Lasting Merits of the Petrazitsky School "
(1971) 21 Osterreichische Zeitschrift fur O#entlichs Recht 347-362.
July 1981] N. S. TIMASHEFF S SOCIOLOGY OF LAW 403
SOCIOLOGY OF LAW AND JURISPRUDENCE

In " What is ' Sociology of Law '? 9 12 Timasheff offers a definition
of the sociology of law in terms of its relationship with juris-
prudence.l3 Jurisprudence, he argues, is the study of the imposed
norms of conduct in force in a given country. Such study may be
analytic (involving explanation, elucidation, correlation and classifica-
tion of norms of conduct), historical (analysis of the development of
these norms) and/or comparative, or theoretical (studying the essence
or unchangeable patterns of these norms).l4 His definition of the
sociology of law is formulated in contradistinction to jurisprudence.
"There is another actuality, closely related to these norms,
but not studied in jurisprudence. This is human behavior in
society, in so far as it is determined by these norms and in so
far as it determines these norms or patterns of behavior." 15
The interplay between law and human behaviour is the primary
consideration of his sociology of law, and includes: how does law
determine behaviour; what forces determine the making, change
or repeal of legal norms; and, what relationships exist between
legal phenomena and other social phenomena.
These questions encompass what he suggests amounts to a
" science," 16 namely sociology of law.l7 This definition of the
sociology olf law leads Timasheff to construct distinct areas of
operation for sociology of law and jurisprudence. Sociology of
law as sociology amounts to a nomographic science,l8 jurisprudence
an ideographic science.l9 Sociology of law "...aims to discover
12 (1937) 43 American lournal of Sociology 225-235.

13 In Chap. II of An Introduction to the Sociology of Law (op. cit.) he further
elaborates by making use of general principles derived from sociological juris-
prudence and philosophy of law, as well as psychology. The first draft of " Introduc-
tion " was prepared in Petrograd, 191S20; original version 1920, Leningrad.
14 " What is ' Sociology of Law'?", op. cit. pp. 225-226; and " Introduction,"
pp. 23-25.
15 Ibid. p. 226.
16 For his view of sociology of law as a science, see later analysis of his methodo-
logical premises.
17 In " What is ' Sociology of Law '?", op. cit. Timasheff gives short accounts
and critiques of other statements as to the scope and purpose of the sociology of
law. He finds those formulated by H. Rolin, W. Schoenfeld, H. U. Kantorowicz,
J. Kraft, I. Kornfeld, E. Ehrlich, H. Kelsen, M. Weber, B. Horvath, L. Petrazitsky,
C. Lombroso and M. Rumpf somewhat unsatisfactory. The implications of his
holding this view are important. First, it is noticeable that the Continental tradi-
tion within the sociology of law has more general social philosophical and socio-
logical roots (see, especially, G. D. Gurvitch, L'Idee du Droit Soczal (1932) ) and sn
many ways predates the Anglo-American developments. Second, it indicates that
Timasheff held a distinctly dogmatic view of the characteristics of phenomena and
disciplines. This dogmatism is, perhaps, traceable to Aristotle's exegesis on definitions.
This criticism is not necessarily absolute: if it were so it would fall into the trap
which it aims to criticise. What remains important are the uses to which such
abstract definitions are put, not the definitions themselves, nor the right-wrong
character given to them by their authors.
18 " Introduction," op. cit. pp. 19 and 29.
19 Ibid. pp. 25 and 29. An elaborated distinction between nomographic and ideo-
graphic sciences is developed by Timasheff in " On Methods in the Social Sciences "
(1945) 6 The American Catholic Sociological Review 169-176.
THE MODERN LAW REVIEW [Vol. 44
' laws ' of a scientific nature concerning society in its relation to

law," 20 and TimasheS uses " laws " here to mean descriptions of
" causal connections between phenomena." 21 Jurisprudence's main
task is to find out "the logical interdependence between various
individual norms . . .logical analysis is therefore its chief method." 22
In this way, he conceives of sociology of law and jurisprudence
as complementary, but separate, disciplines,23 although he admits
that complete isolation of the two is neither absolutely possible,
nor desirable.24 In further illustrating the differences between
these two disciplines, he disputes attempts to encapsulate the one
in the other. In doing so he takes issue with Kelsen's (reputed) 25
denial of the possibility of a sociology of law as opposed to juris-
prudence,26 on the one hand, and Ehrlich's attempt to incorporate
sociology olf law into jurisprudence,27 and Gurvitch's attempt to
incorporate the philosophy of law into sociology of law28 on the
other.
Relying on neo-Kantian dualistic notions, the possibility of socio-
logical (causal-functional, ontological) study of law conceived of as
normative (axiological), has been questioned.29 Timasheff quotes
Kelsen as arguing: " A sociological concept o;f law is just as
impossible as a mathematical concept of a biological phenomenon
or an ethical concept of the physical phenomenon of the freely
falling body." 30 Timasheff's response is that even though the content
of legal norms may only be studied normatively (i.e. within a
structured system equivalent to a system of values): " . . . yet
values do act on the lives of mankind, determining their behaviour;
20 Ibid. p. 19, and " What is ' Sociology of Law '?", op. cit. p. 227.
21 " Introduction," Op. Cit. p. 19.
22 " What is ' Sociology of Law '?", op. cit. p. 226.
23 Ibid. p. 235.
24 " Introduction,' op. cit. p. 29.
25 See note 30.
2 6 S; Introduction," O p. Cit. pp. 21-23.
27 Ibzd. pp. 25-29.
28 N. S. TimasheS, " Fundamental Problems of the Sociology of Law " (1941)
2 The A merican Catholic Sociological Review 235. Timasheff's general evaluation
of Gurvitch can be found in " Gurvitch's Philosophy o Social Law " (1942) 17
Thought 709-722.
29 Namely the feasibility of anything but a normative study of law. This relates
back to Hume's analysis of the logical gulf between " is statements " and " ought
statements," fact and value, reality and validity. It can be argued that no logical
derivations in the world o actuality can be based on directive or evaluative
normative statements, thereby, no social outcome can be shown logically or causally
to derive from a legal norm. It might be argued that the pervasiveness of this
methodological problem is the underlying reason for many of the unsatisfactory
attempts to create a sociology of law.
30 " Introduction," op. cit. p. 22. Timasheff's translation is from H. Kelsen
" Eine Grundlegung der Rechtssoziologie,s' op. cit. p. 876. It is important that this
quote should not be seen as representative of Kelsen's general attitude to the
sociology of law, as Timasheff implies. It is quite clear that in General Theory of
Law and State, op. cit. Kelsen both admits to the possibility and quite extensively
discusses the sociology of law; for example his discussion of Weber's sociology of
law, pp. 171-178. Again, in ss Fundamental Problems of the Sociology of Law,"
op. cit. p. 233, Timasheff makes the same implication against Kelsen, relying on the
same limited sources.
thus values are forces and forces are the main object of causal
study. Law is an actuality." 31 Of course this conclusion begs the
questions as to how such values (E.e. legal norms) become part of
social reality, in what senses and ways they are represented in
behavioural patterns, and, how generalised " laws " of a causal kind
can be formulated to describe the interaction involved.32 It is signifi-
cant that, in formulating the sociology of law as a plausible disci-
pline, and having arrived at a view of how it complements
jurisprudence, Timasheff in fact comes very close to Kelsen's treat-
ment which he attempts to criticise. This is most apparent in
Timasheff's variance from Ehrlich's formulation of law as " living
law" 33 whereby from a sociological standpoint based on the real
determinants of human conduct and organisation, posited legal
provisions are only considered to be part of law to the extent that,
together with other norms, they are actually effective. Timasheff
disputes this attempt to integrate sociology into jurispmdence, for, he
argues, such a view substitutes jurisprudence for social science in
general: " To study legal acts without reference to law means to
study biology, politics, economics et cetera."34 Kelsen argues
similarly:
" Only by referring the human behavior to law as a system of
valid nolrms, to law as defined by normative jurisprudence, is
sociological jurisprudence able to delimit its specific object from
that of general sociology; only by this reference is it possible to
distinguish sociologically between the phenomenon of legal and
the phenlomenon of illegal behavior, between the State and a
gang of racketeers." 35
Both Timasheff (the sociologist) and Kelsen (the jurist) thereby

separate sociology of law and jurisprudence, and specifically con-
clude that the sociological study of law is dependent on an initial
description and analysis of legal norms by jurisprudence; substan-
tially elevating jurisprudence to a position of primacy. This, how-
ever, raises the question whether philosophy of law (as one branch
of jurisprudence) must be incorporated into sociology of law.
Timasheff argues that philosophy of law (" the integration of legal
phenomena into an entity . . .t) 36 iS not a scientific discipline, its
basic method being intuitive and its presenting knowledge non-
verifiable. He sees that some questions within the philosophy of
law may, with progress, be reformulated as susceptible to scientific
analysis (hence within sociology of law), but its main questions
31 " Introduction," op. cit. p. 22; and ss Fundamental Problems of the Sociology
of Law," op. cit. pp. 22-23.
32 Timasheff's answers to these questions are discussed later in this article
33 Ehrlich, Fundamental Principles of the Sociololgy of Law, translated by W. L.
Moll (1936), especially Chap. XXI; E. Ehrlich, " The Sociology of Law " (1922)
XXXVI Har.L.Rev. 13>145.
34 " Introduction," op. cit. p. 26.
35 General Theory of Law and State, op. cit. p. 177.
relating to the ends of law are evaluative and outside the area of
sociology of law (subject to the ends being given). This view seems
to conflict with Gurvitch's sociology of law.37 For Gurvitch, the
relationship between philosolphy of law and sociology of law is
predetermined by his view of the relationship between philosophy
and science, plarticularly centering on the same ingredient of reality.
Gurvitch's method is that of phenomenological reduction.38 Such
phenomenological reductioin is often explicitly, but necessarily
implicitly in opposition to the applroach of sociology as a science.
In effect it broadens the categorisation of " reality " so that any
statement incorporating " reality " is held to include a concept of
reality or, in other terms, to include both distinct epistemological
and ontological plositions.39 Gurvitch's variant of phenomenological
reduction makes it impossible tol isolate legal reality from social
reality, both being subject to the same philosophic scheme. Hence,
to Gurvitch, philosophy of law is an inevitable corollary to sociology
of law. However, although Timasheff's and Gurvitch's backgrounds
are similar,40 they diverge over sociological theory and therefore
over sociology of law. Timasheff simply does not accept Gurvitch's
phenomenological position, and clearly demarcates philosophy and
sociology of law.4l "The sociology of law will procure the best
means to the ends; but ultimate ends will forever depend on philo-
sophical, and not on scientific considerations." 42
Again it should be stressed that Timasheff sees the sociology of
law as separate from jurisprudence and philosophy of law, as
scientific, as based on casual-functional analysis and as being con-
cerned with the actuality of the determination of behaviour by
legal norms. Whether such a set of propositions is tenable depends
on the way in which he works them through. Nevertheless, his
rather dogmatic statements about the scope and nature of these
related disciplines have a general justification within his socio-
logical theory, and conception of sociology. He seemed to take a
synthetic approach to sociological theories, predetermined by his
goal of the iIltegration of sociological theory into a body of know-
ledge of empiric generalisations amounting to theoretical propo-
sitions.43 As a facility to this end, clarity in defining concepts in
37 G. Gurvitch, " Major Tasks of the Sociology of Law " (1941) 6 Journal of
Social Philosophy 197-215; G. Gurvitch, Sociology of Law (1947), especially pp.
1-52.
3 8 See P. Bosserman, Dialectical Sociology ( 1968), especially Chap. IV.
39 See, generally, R. M. Zaner, The Way of Phenomenology (1970); M. Natanson
The Journeying Self ( 1970).
40 Particularly their juristic training under Petrazitsky, their exnigrations from
Russia (although at different times) following the events of 1917-18, their developing
interests in sociological theory and sociology of law and their early academic posts
after leaving Russia.
41 The plausibility of Timasheff's stance will be discussed later in this article.
43 See especially, " Definitions in the Social Sciences " (1957) 53 American
Journal of Sociology pp. 201-209. For an account of himself, see N. S. Timasheff and
G. A. Theodorson, Sociological Theory: Its Nature and Growth (4th ed., 1976), pp.
333-339.
July 1981] N. S. TIMASHEFF S SOCIOL%Y OF LAW 407
concrete terms, was invaluable. If one accepts the plausibility of his

goal, the practicality of going about his task in the way he does
becomes apparent. It is still noticeable that a consistent effort is
often not made, within the sociology of law, to distinguish descrip
tive, explanatory and evaluative research and findings. On the other
hand it is, perhaps, unreal to propose these sort of distinctions. As
has already been demonstrated, a phenomenological stance towards
the sociology of law, or an ethnomethodological one, would find
such elemental distinctions implausible, indeed, those attempted
distinctions would themselves become objects of study.44
As part of appraising Timasheff's definition of law (in terms of
his sociology of law) his major theoretical and methodological
preferences will be evaluated. Timasheff sees law as a social
phenomenon 45 determined by the primary elements of ethics and
power; 46 he analyses its function as " that of imposing norms of
conduct or patterns of social behaviour on the individual will "; 47
he asserts that " the conformity of human behaviour to legal pre-
cepts, is not a postulate, not a desire of well-intentioned individuals,
but a fact of social life." 48 These three basic contentions which
underpin his sociology of law will be looked at.
LAW AS A SOCIAL PHENOMENON DETERMINED BY ETHICS AND POWER

Timasheff's argument is developed as follows. " Law is a cultural
force " 49 and united in the social phenomenon of law are ethics
and power. Ethical norms of conduct are not imposed exclusively
by law, just as social power is not organised exclusively to dominate
individuals by means of law. The relation between law, ethics and
power is such that, where ethics and power overlap "the over-
lapping section is law."50 He develops this approach to law by
diagnosing the role of social co-ordination. The imposition on or
recognition by individuals of patterns of conduct produces social
co-ordination.
"It is obvious that law is one of the instruments of social
coordination and that therefore legal order is a part of social
order.... It is equally obvious that legal order does not form
the totality of social order." 51
44 i.e the use of resource as topic, see generally H. Garfinkel, Studies in Ethno-
methodology (Prentice-Hall, Englewood Cliffs, 1967).
45 See N. S. Timasheff, " Law as a Social Phenomenon " in Readings in Juris-
prudence (J. Hall, ed. 1938), pp. 868-874.
46 " It is highly probable that the treatment of law as ethico-imperative co-ordina-
tion covers the cases of which most people think when speaking of law: legal order
is constituted by patterns of conduct enforced by agents of centralised power
(tribunals and administration) and simultaneously supported by a group-conviction
that the corresponding conduct ' ought to be.' " " Introduction," op. cit. pp. 1S17.
47 " What is ' Sociology of Law '? ", op. cit. p. 225.
48 " The Sociological Place of Law " (1938) 44 American Iournal of Sociology
206. N.B This article is redrafted as Chap. 1 of " Introduction."
49 " What is ' Sociology of Law '? ", op. cit. p. 225.
50 Ibid. p. 231.
51 " Introduction," op. cit. p. 1O.
408 THE MODERN LAW REVIEW
[Vol. 44
TasheS describes four possible types of social co-ordination.
Ethical crordination (rules socially approved of) as opposed to
non-ethical co-ordination (rules generally disapproved of by the
social group); imperative co-ordination (rules imposed by centralised
force) as opposed to non-imperative co-ordination (rules imposed by
equal interaction of group members). Four logical types emerge:
" (a) non-ethical and non-imperative, (b) ethical but non-imperative,
(c) imperative but non-ethical, and (d) ethical and imperative." 52
The first type is an impossibility in social terms. The second emerges
through custom and social morals, and is dependent on some notion
of group conviction. The third is enforced by despotic government
and is reliant on certain conditions of monopoly of power. The
fourth is created by law, thus giving the dual character to law of
ethical and imperative:
" At the same time legal patterns of conduct are supported by
centralised power and its coordinating activity and not merely
the mutual social interaction which produces and re-inforces
the ethical group conviction." 53
Before evaluating this treatment, it may be useful to look closer

at one of the elements, namely power,54 to see what model of
inquiry he is utilising. Legalistic discursions on power, he argues,
although useful, tend not to explain:
" how the state and personal or collective dominators actually
esercise their power.... In this connection, only the will to
dominate has been studied; the readiness to obey has been
negleicted. . . such procedure was necessarily valueless for
causal explanation of the actual power phenomenon." 55
Some of the words he uses, namely " actually," " causal," " explana-
tion " and " actual " demonstrate his methodological commitment
to a " scientific " model of sociological inquiry. To ask questions
about the two-way character of the power relationship, namely
dominance and submission, active and passive roles and dispositions,
does lead him into questions concerning individual or group cons-
ciousnesses, or psyches. But rather than abandon his model he
attempts to orientate these questions to the demonstrable, or
observable,56 to behaviouristic explanations, to the actual, that
which may be verified as cause and/or effect. He argues that the
central problem of the actuality of the power phenomenon can be
52 " The Sociological Place of Law," op. cit. p. 214.

53 Ibid. pp. 21F215.
54 The greater part of " Introduction " is taken up with elucidation of law's
function of social co-ordination based on the overlap of ethics and power, or ethical
and imperative co-ordination. The same arguments in a contracted form appear in
" Le Droit, L'ltthique, Le Pouvoir: Essai d'une theorie sociologique du droit,"
Archives de Philosophie de Droit et de Sociologie JuridEque (1936), Vols. 1-2, pp.
131-165; and for his analysis of power, " The Power Phenomenon " (1938) 3
American Sociological Review 499-509.
55 " The Power Phenomenon," ibid. p. 499.
56 See his " Observation in the Social Sciences " (1948) 9 The American Catholic
Sociological Review 1-13.
basic method for " studying legal phenomena as real phenomena 63
July 1981] N. S. TIMASHEFF S SOCIOLOGY OF LAW 40g
resolved by " an expression of the power phenomenon in simple

and well known types of behaviour."57 Consciousness of power
relationships transform themselves into " an active expression of
dominance-submission under proper conditions."58 This " active
expression" is the behaviour that ensues. He refutes theories that
attempt to understand systems of power (and, for that matter,
legal systems) as merely the sum total of subjective attitudes or
representations,59 by allying the various attitudes of those in power
or subject to power to the "objective " facts of particular
behaviours. Having so characterised power systems he is able to
formulate general theoretical propositions 60 (e.g. " Well developed
power systems are much more frequent in societies with advanced
differentiation than in primitive societies.6l Complex power systems
are able to carry on higher social functions.")62 The reasoning
adopted proposes a correlation between the social phenomenon of
power and certain observable behaviour through tendencies derived
from states of conciousnesses. In this reasoning, the actuality of
power has become " objectivised," and concluding theoretical pro-
positions between sets of social facts have become available for
hypothesis and verification.
Behaviourism in sociology and social psychology may take a
number of different forms. The form adopted by Timasheff appears
to be a reaction to that of his teacher, Petrazitsky. Petrazitsky's
was: " The introspective method-simple and experimental ' self-

knowledge '-is the sole means of observation, and of the immediate
and reliable cognition and study of legal and moral phenomena." 64
Such an approach leads Petrazitsky to the claim that ideal patterns
(which to him include law) are merely imaginary,65 or as Hager-
strom puts it " mystical forces and bonds," 66 or in Olivecrona's
analysis of legal rules " ideas of imaginary actions by people in
imaginary situations." 67 Timasheff disputes these positions by
arguing that:
" Such propositions may be empirically refuted if it is found

that the acceptance for guidance of legal patterns is equivalent
to the formation, in numerous persons, of standardized beha-
vior tendencies (habits) corresponding to the demands of
law.ss 68
57 " The Power Phenomenon," op. cit. p. 500. 58 Ibid. p. 502.

59 And thereby breaks with the psychological tradition of his teacher Petrazitsky.
See B. Horvath, " Timasheff and Lasting Merits of the Petrazitsky School," Op. Cit.
60 See note 43.
61 N.B. Close links to both Comte and Durkheim, both in substantive argument
and methodology, e.g. their treatments of " social facts."
62 " The Power Phenomenon," op. cit. p. 509.
63 Law and Morality: Leon Petrazitsky, op. cit. p. 17.
64 Ibid. p. 14. 65 Ibid. Chap. II.
66 A. Hagerstrom, Inquiries into the Nature of Law and Morals (translated by
C. D. Broad, 1953), p. 16.
67 K. Olivecrona, Law as Fact (lst ed., 1939), p. 29.
68 " Fundamental Problems of the Sociology of Law," op. cit. p. 242. Mead has
410 THE MODERN LAW REVIEW
[Vol. 44
Does Timasheff's behaviouristic social explanation of law include

an appreciation of " the inner experience " of individuals, or, does it
misconstrue such experience? In postulating a relationship between
law and imposed unified patterns of behaviour,69 law as a combina-
tion of ethics and power, and law as a social cbordinator, he is led
to an analysis which associates " normal behaviour " with the ideal
behaviour and the patterns of obligation that law imposes. Hence,
all behaviour not in conformity with legal norms he defines as
" abnormal behavior." 70 Further, " the process of imposing
behavior patterns is social co-ordination, and the result of cb
ordination is social order." 71 It can be suggested that this anaylsis
misconstrues the relationship between law and behaviour, and, in
its logical developments can be seen to be inaccurate. Also, that in
some ways his logic is predetermined by his classification of law as
ethico-imperative coordination, which is evidence of a theoretical
approach to " order" which is based on the assumption that order,
to be order, must be " good " order.
The argument that the behaviour patterns that the law imposes
will produce either social co-ordination, or social order, can be
strongly contested. For that argument allows no place for the
possibility that the law may, by preferring one alternative to
another, be socially divisive; nor that, by issuing inconsistent direct-
tives, it may produce confusion and thereby social tension. To take
the example of race relations legislation in Great Britain: the
various enactments adopted to deal with the question of relations
between groups of different races could be shown to have imposed,
in some ways, patterns of behaviour of a divisive rather than co-
ordinating nature. In 1968, the Immigration Act, s. 1, had the
practical impact of authorising immigration officials to act in a
racially prejudiced way; the Race Relations Act 1968, s. 2, com-
manded them not to discriminate in the execution of their duties.
Although the normative content of various enactments might not
conflict and by technical reasoning may always be interepreted as
not conflicting, the resultant social behaviour is by no means
guaranteed
order.
to participate in creating social co-ordination or social
Other even more striking examples of this effect are laws which
impose greater burdens on one section of the population than another
or burdens on one section for the benefit of another section.72 It
pointed out that a behaviouristic approach to social psychology is distinctly tenable.

" Social psychology is behaviouristic in the sense of starting off with an observable
activity . . . But it is not behaviouristic in the sense of ignoring the inner
experience of the individual . . . On the contrary, it is particularly concerned with
the rise of such experience within the process as a whole." G. H. Mead, Mind,
Self snd Society (The Works of George Herbert Mead, Vol. I, 1962), pp. 7-8.
69 " The Sociological Place of Law " op. cit. p. 207.
70 Ibid. p. 209; " Introduction " ibid. p. 9.
71 Ib7d. p. 209- " Introduction " ibid. p. 9.
72 A classic example of this, in reverse form, is the use of positive discrimination
laws. The Supreme Court of the U.S.A. recently reversed their previous rulings on this
would certainly be difficult to argue that the various attempts to

legislate in the field of industrial relations in Great Bntain recently
have, in fact, produced order One l?ossible conclusion might be,
that if they were obeyed they might produce order. This is pro-
posing no more than that obedience to law is the basis of social
order, and even that is a large assumption which many would not
accept. So, to analyse behaviour in conformity with legal norms as
"normal behaviour" and that not in conformity as " abnormal
behaviour," is to deduce a generalisation which is inappropriate
and can thus have little, if any, explanatory value. The imposition
by a government of laws not in conformity with the mores of the
population, or a significant part of the populations has repeatedly
been shown to be a relatively ineffective use of such laws. There is
little doubt that in certain well-documented cases73 the normal
behaviour patterns were contrary to the normative patterns incor-
porated in the legal provisions. One would have to give the phrases
"normal behaviour" and " abnormal behaviour" unacceptable
meanings for them to cover these cases. Even the more apposite
phrase " deviant behaviour " is invalid in cases where the attempted
imposition of laws is in direct contradiction to socio-ethical con-
victions and the behaviour patterns of the bulk of the population.
Such an analysis is misleading. It relies on a behaviouristic attempt
to account for the reality of legal phenomena without seriously
confronting the question of how disposition or attitude to legal
norms determines that behaviour. The drawbacks associated with
such a perspective are pointed out by Schutz's arguments 74 that:
those who behave in the same way may give different meanings to
their actions; intentional inaction (that which the obsener has no
means of perceiving) is as much part of social reality as intentional
action; and, particularly:
". . . the postulate of sensory observation of overt human
behavior takes as a model a particular and relatively small
sector of the social world, namely, situatiolns in which the
acting individual is given to the observer in what is commonly
called a face-to-face relationship. But there are many other
dimensions of the social world in which situations of this kind
do not prevail.... If I read an editorial stating that France
fears the rearmament of Germany, I know perfectly well what
this statement means witholut knowing the editorialist and even
without knowing a Frenchman otr a German, let alone without
observing their overt behavior." 75
subject in Bakke's case. See review by R. Dworkin, " The Bakke Decision: Did it
Decide Anything," The New York Revtew of Books, Vol. 25, No. 13 (1978), pp. 2>25
but see his earlier review " Why Bakke has no Case," The New York Review of
Books, Vol. 24,No. 18 (1977), pp. 11-15. For an account of earlier cases see R.
Dworkin, Taking Rights Seriously (19477), Chap. 9 " Reverse Discrimination "
73 e.g. Prohibition laws in U.S.A., Isratl Marriage Age Law 1950 (see Y. Dror
" Law and Social Change " (1959) 33 Tul.L.Rev. 80>801).
74 A. Schutz, Collected Papers 1: The Problem of Social Reality (1962), pp. 4>66*
75 Ibid. P- 55
THE MODEE LAW REVIEW [Vol. g
412
Schutz's criticisms are even more generally applicable to TimasheS,

in that he presents a critique of the " scientific " school of sociology
within which Timasheff falls.76 Timasheff presents his sociology
of law modelled on the plausibility of gaining knowledge of the
actions of men: " on the evidence supplied by their overt behavior
just as it is possible to discover and know the atomic constitution
of water on the evidence supplied by the physical and chemical
behaviour of that substance." 77 To this extent he purports to
achieve objective explanation where there is none.78 Indeed, he
claims that: " The sociology of law is the only science which might
discover objective and not purely subjective and conjectural limits
for the phenomenon of law." 79 In this he overestimates the
potential olf sociology, and underestimates the limitations of
behaviouristic explanation. However, even though his tendency
is towards behaviourism as an explanative model, he never totally
discards Petrazitsky's introspection model, nor the symbolic charac-
ter or social meaningfulness of behaviour associated with law.80
Indeed there are seeds in his later writings that suggest that he
no longer accepted as nearly natural, that human beings do conform
their behaviour to legal norms, but made that problematic opera-
tion the focal point of his interest.8l It is being suggested that
Timasheff's sociology of law emerges from the manifest lack of
sophistication with which traditional jurisprudence attempted to
appreciate law as a social phenomenon, took a distinctively dog-
matic sociological turn, presenting an idealistic and programmatic
picture in his Introduction to the Sociology of Law, only to dis-
solve into its elements by paying more acute attention to lawfs
apparent reality and the enterprise of creating its reality, later in
his life. It may be that the sociology of law, as sociology, is today
running a similar course. If this is the case that the picture
remains blurred despite attention to many of the details, it may be
that we should change channels; or, that what solciology makes
available to the study of law cannot of itself account for legal
reality as a part of social reality.
That Timasheff was concerned with order is clear from a cur-
sory reading of his writings but, as already suggested the nature
76 As argued earlier. 77 A. Schut, op. cit. p. 51.

78 This amounts to a general critique of ' >sitivism " within sociolo. See D.
Walsh, " Varieties of Positivism " in P. Filmer et al., New Directions in Socio-
logical Theory (1972), pp. 37-55; A. Schutz, op. cit.; A. Schuts, " Common-Sense
and Scientiflc Interpretation of Human Action " in Collected Papers I, op. cit. pp.
3z7; D. Silverman, The Theory of Organisations ( 1970), Chap. 6; and, more
generally, P. L. Berger and T. Luckmann, The Social Construction of Reality
(1966); P. Winch, The Idea of a Social Science and its Relation to Philosophy
( 1958); Explanation in the Behavioural Sciences (X. Borger and F. Cioffi eds.,
1970); P. McHugh, Defining the Situation (the organisation of meaning in social
interaction) (1968).
79 " What is ' Sociology of Law'?", op. cit. p. 234.
80 " Introduction," op. cit. pp. 3241.
81 Especially "The Social Reality of Ideal Patterns" (1944) 3 Journal of Legal
and Political Sociology 6S83.
of ethics, or in part. . . 83 A number of theoretical undercurrents
of social order which he describes suggests the coexistence of order

and "good " order, as somehow implicit within each other. This
becomes apparent in the course of his book "An Introduction
to the Sociology of Law," especially in its Part IV. He promotes
arguments developing two central propositions. First, that legal
rules are both recognised and obeyed by those subject to them.
For example, he asserts that non-violation of legal rules is
achieved through processes within social groups, not merely through
the activity of power centres.82 Secondly, that legal rules are recog-
nised and supported by those in power, which includes the idea
of " self-limitation" whereby: "If the fact of self-limitation
disappears the legal structure is broken either in its entirety, if
the power center has emancip\ated itself completely from the bonds
are present in these propositions. His classification of social group

is naturalistic and not subdivided into conflicting units. In this
sense, his notion of social group is self-organised around a con-
census, a social equilibrium: that equilibrium is supported, but
not created by the state. His notion is underpinned with evaluative
precepts. Rheinstein argued that the broad meaning that Timasheff
gives to the term " ethics," in defining law as ethicoimperative
co-ordination, is: " caused by a desire of the author to withhold
the euphonious epitheton ' law' from the revolutionary commands
of the Bolsheviki and other ' despotic ' regimes." 84 These crlticisms
have been disputed by Timasheff.85 He claims that " no legal system
has ever existed in which at least a large part of the fundamental
rules would not have been directly recognised by large numbers
of citizens as conducive to the common good." 86 In accordance
with this claim he continued to hold to the view that social
reality demonstrates an " ethical substructure of law," 87 and that
the commands of despotic rulers, even though they may create
order, do not create that social co-ordination "which usually is
called law." 88 This limited defence is hardly convincing. However,
it points to a crucial problem which the sociology of law must
face up to. The problem centres around a classification of law
82 " Introduction," Op. Cit. pp. 245-259.
83 Ibid. p. 259.
84 M. Rheinstein, " Two Recent Books on Sociology of Law " (194041) 51 Ethics
220. In fact, Rheinstein sees the whole of Timasheff's book " as an attempt to prove
the correctness of this definition " (p. 222), i.e. law is ethico-imperative co-ordination.
In similar vein, Morgenthau suggested that: " one cannot help wondering whether
the objective or ' generic ' meaning of ' ethics ' has not been replaced here by the
term's accepted meaning (in the sense of morals) in order to distinguish between
good, that is, ' legal,' and bad, that is, ' illegal or despotic ' domination." H. J.
Morgenthau, Book Review (1940) 49 Yale L.J. 1511, note 3. F. S. Cohen, Book
Review (1940) 53 Harv.L.Rev. 707-710, presents this criticism of Timasheff in even
stronger terms.
85 Especially " Fundamental Problems of the Sociology of Law," op. Cit. pp.
24S247.
86 Ibid. p. 246.
87 Ibid. p. 246.
88 Ibid. p. 247.
as a set of normative propositions, whose comples functions 89 are

such that merely studying the effects of the organisation of force
(i.e. sanctions) which attempt to ensure some degree of eEective-
ness, will leave a large part of law's social reality unconsidered.
For, even if the over-riding scheme for law was considered to
be the exercise of power, within the parameters of such an eser-
cise lie a range of functions inexplicable purely in terms of
centralised coercion. In these telms, classification of law's effects
as ethico-imperative has much to commend it. However, such a
classification can easily transform the object of the study into
validation rather than description. These arguments can now be
followed up by considering TimasheS's two further contentions.
LAW S FUNCTION AS THE IMPOSITION OF PATTERNS OF SOCIAL

BEHAVIOUR ON THE INDIVIDUAL WILL
Timasheff presents a consistent picture of the coalescence of the
social behaviour of human beings and the models of conduct con-
sidered by them to govern their behaviour90 in all societies.9l In
his sociology of law he describes this coalescence as an actuality
and sees law (with other social forces) as functioning towards such
an achievement. Uniformity is a product of legal rules, uniformity
both in behaviour and in sentiment within social groups. His
hypothesis which facilitates such an argument is that " similar
conditions acting on men of essentially similar nature produce
similar effects," 92 Legal uniformity as an " imposed " uniformity
thereby emerges in social life. There are a number of distinctive
traits to his analysis of law's functioning in these terms.
He clearly aligns himself with the view that regulatory norms
can be imposed on individuals' wills. Such a view coincides with
those who see law as a primary social educator.93 It rests on a set
of interactions of a stimuli-response, active-passive character
which Petrazitsky described.94 In dealing with the mechanism of
control through legal rules Timasheff departs from Petrazitsky.
Timasheff emphasised the role of enforcement through political
organisation, which Petrazitsky tends to discount, because of his
(Petrazitsky's) insistence that "legal facts" can only be under-
stood as " mental events ".95 However, such a departure does
not preclude Timasheff from an inquiry into how the means of
social control " actually produce uniformities in human con-
89 See Y. Dror, " Prolegomenon to a Social Study of Law " (1960) 13 Journal of
Legal Education 132.
90 Such " models of conduct " are the basis of his definition of " ethics."
91 See his application of this to " primitive " societies or " early " societies, " Law
as a Social Phenomenon," Op. Cit.
92 " Introduction," Op. Cit. p. 6; " The Sociological Place of Law," op. cit. p.
206.
93 e.g., R. Pound, Social Control through Law (1942).
94 See Timasheff's introduction to Law and Morality: Leon Petrazycki, op. citv
especially pp. XXXVI-XXXVIII, and Chap. III.
95 Ibid. p. 212.
duct," 96 which inquiry is primarily socio-psychological. He presents

an account of the conditions under which " ideal patterns " (which
include legal regulations) 97 become a part of " social reality,"
namely when: " among the members of the social group, speci-
fied ' reactive tendencies' or 'readinesses to behave' have been
formed and have not been destroyed by subsequent processes
running in the opposite direction." 98 Under these conditions he
postulates a relationship between learned behaviour tendencies
and legal norms. Within this relationship are the seeds of an
understanding of the structural conditions necessary for the trans-
formation of ideal regulatory patterns into real societal regulation.
The role of force might, in these terms, be seen to be only one of
the pre-conditioning characteristics of legal enterprise. All such
pre-conditioning characteristics prepare for the " internalisation "
of legal normative standards as standards of behaviour on which
law ultimately rests. TimasheS suggests that:
"The social reality of ideal patterns forming the system of
societal regulation consists in the existence, in the members of
the corresponding group (or at least in many of them) of stan-
dardized and therefore practically identical reactive tendencies,
inducing them to respond in a stereo-typed way to specific
situations." 99
FU11 understanding of such a proposition would amount to an

advance in the sociology of law.
THE CONFORMITY OF HUMAN BEHAVIOUR TO LEGAL PRECEPTS

AS A FACr OF SOCIAL LIFE
Jerome Hall proposed that:

" The basic hypothesis upon which a sociology of law rests is
that rules are potent conditioning factors as regards the con-
duct both of lay population and officials-that rules make a
difference that is ' sufficient ' in degree and importance to
engage serious intellectual interest." l
Timasheff responded that: " In actuality the proposition is more

than a 'basic hypothesis': it is the statement of an observable
fact." 2 Timasheff here presents a relationship between law and
96 " The Social Reality of Ideal Patterns," Op. Cit. p. 71.

97 It is important to note that although he still holds the view that law is ethico-
imperative coordination, in this later article (ibid.) he describes why he used the term
" ethics " (note 1) and in so doing implies a significant alteration in its meaning for
him. Ethics is designated as equivalent to a reflective " standard of right," a dis-
positional concept, rather than one which incorporates any given set of values. An
ethical disposition merely suggests that normative standards are relevant coordinating
conditions, and thereby that " group conviction " implies the disposition of a group
in terms of a social attitude. It does not imply that the content of such a social
altitude should conform to any given standard of ethics.
98 " The Social Reality of Ideal Patterns," op. cit. p. 73.
99 Ibid. p. 82.
1 J. Hall, " Criminology and a Modern Penal Code " (1963) 27 The Journal of
Criminal Law and Criminology 3. 2 " Introduction," op. cit. p. 6, note 7.
TlIE MODE LAW REVIEW
416 [Vol. 44
social behaviour whereby the sociological study of social behaviour

is equivalent to the sociological study of legal norms. What
obscures this appearance is nothing more than the dMerent modes
of presentation of these two studies. The context of both studies
is the same, only the form in which they appear is distinct. But,
is TimasheS right, can such a statement of fact be supported?
Or is 3Hall's
ment? basic hypothesis a more accurate relational state-
Timasheff's claim rests on a number of distinctions. First, a

distinction between " the legal and pre-legal stages in the develop-
ment of society." 4 So, whereas there may be " societal regulation
of behaviour in primitive society," this is not legal regulation
which requires "The imposition of patterns by active power
centres."5 This view of the modernism of legal regulation 6 iS
self-supporting, in the sense that the type of function which,
according to Timasheff, law is supposed to perform, probably
requires those institutional arrangements associated with the
modern state. Secondly, it presents a methodological distinction
of a distinctly jurist kind. It can be argued that law claims to
determine the quality of all behaviour by disallowing some
behaviour and permitting other behaviour. Its claim is one of all
pervasiveness.7 One is legally entitled to do any act not forbidden
by the law. From this conceptual premise the deduction may be
made that behaviour not conforming to legal precepts is part of
the actuality of the conformity of behaviour to law. It relies,
however, on cognisance of legal precepts by the population at
large. One can see how Timasheff arrives at such a view. In
defining law as ethico-imperative, and thereby as supported within
the social network or culture of the group, he has implied some
degree of cognition on the part of the population at large. In this
way illegal behaviour xs 4' abnormal behaviour " and legal behaviour
" normal behaviour." 8 SO, he argues: " At the periphery of
social order are acts carried out with the intention of avoiding
imposed patterns; but acts incompatible with established patterns
no longer belong to the social order." 9 It has already been argued
that Timasheff's definition of law as ethico-imperative may be
doubted, and theroby his analysis of the actuality of the deter-
mination of human behaviour by legal precepts. In addition the
consensual model adopted by him, grounding law in culture in
advanced societies is questionable. It is ironical holw close it is
3 See,
67, on
note 240. this dispute, J. Stone, Social Dimensions of Law and Justice (1966), p.
4 s;
5
Law Ibid.
as a Social Phenomenon,"
p.
op. cit. p. 872.
872.
6 See " The Social Reality of Ideal Patterns," op. cit. pp. 6S67. For a contrary
view, see e.g. B. Malinowski, Crime and Custom in Savage Society (1926)* E. A.
HoebelS The Law of Primitive Man: A Study in Comparative Legal Dynamies (1954).
T8
See,"e.g. J. Raz. Practical Reason and Norms
Introduction," op (1975),
cit. pp. p.
149-154.
9.
9 Ibid. pp. 9-10.
ultimately, to Gurvitch's phenomenological reduction of law to

a societal neotic mind.l It falls within the continental tradition
of legal philosophy which has attempted to understand law in
terms of some overriding common set of values.ll However, the
piecemeal nature of legislative programmes in western societies,
the complexities of pressure group interaction behind legal changes,
the bolstering up of the structural conditions of capitalist econb
mies, all belit this over-generalised relationship between law and
behaviour. It is particularly inappropriate to the legal regulation
of property in capitalist societies. The typology of Timasheff's
theory would seem to be most easily applicable to criminal legis-
lation. However, the law relating to the criminal deprivation of
others' property has become exceedingly comples, not easily
publicisable, by no means universally known, understood or
grounded in group conviction.l2 The case which Timasheff attempts
to present, namely that in advanced societies the conformity of
human behaviour to legal precepts is a fact of social life, cannot
be verified by the evidence he presents. Nor, for that matter,
is it potentially verifiable. Law is an ought statement, it is a
set of normative ideas which exist in the heads of those who
make, apply or feel obligated to them. Behaviour or regularity
is a matter of fact, but you cannot derive that behaviour (that
fact) from a law (that norm), the fact and the norm are mutually
non-logically derivative. Equally, in logical terms, the fact that
a sanction will be applied is not derivative from the legal norm
that it ought to be applied. Can it logically be deduced, or can
it be explained as an effect, that someone acted in a particular
way because of a particular law (the cause)? The answer is no.
Social research cannot demonstrate a causal relationshipl between
the application of past or future sanctions, the premise of a legal
norm, and the effect of compliance or non-compliance.l3 No logical
deduction can be based on a directive statement (such as a law).l4
Logic, and cause and effect, require to be premised by descriptive
G. Gurvitch, Sociology of Law, op. cit. pp. 4048.

11 See, e.g. R. Stammler, The Theory of Justice (translated by I. Husik, 1925);
G. Del Vecchio, The Formal Bases of Law (translated by J. Lisle, 1921).
12 An example in Great Britain is the difficulty involved with formulating fraud
provisions within the Theft Acts, particularly ss. 15, 16 and 19 of the Theft Act
1968. S. 16 (i) remains in force, but s. 16 (ii) (a) is repealed and replaced by the
new offences of ss. 1, 2 and 3 of the Theft Act 1978. These enactments alone are
by no means adequate to deal with " white-collar frauds." Resort has to be made
to the offences of conspiracy to cheat and defraud, Companies Act 1948, s. 332,
Prevention of Fraud (Investments) Act 1958, etc.
13 There are standard ways in which this dilemma, between is and ought, can
be circumvented. In philosophical terms, " if " clauses may be used; in sociological
terms " operational definitions " may be formulated for research purposes. Neither
of these is, however, able to resolve the problem. For example, I agree with David
Silverman's argument that " attempts to construct operational definitions of different
forms of the family (for example, nuclear, extended) and then to establish social
structural causes and effects of such forms are logically misguided." P. Filmer,
et al., New Directions in Sociological Theory, op. cit. (1972), p. 5.
14 But, see A. Ross, Directives and Norms (1968), for development of an appro-
priate logic of normative statements, namely deontic logic.
statements. Hence an equation between social control and social

order may be formulated, but to include legal control in such
an equation is a reformulation inconsistent with logical analysis.
Since, in view of these arguments, law's impact cannot be
measured,ls because it cannot logically be said that law causes
behaviour either in conformity to or deviant from it, then one
cannot analyse social behaviour (as Timasheff attempts) as law
governed. Clearly, it is nonsense to talk of law compelling
obedience, as there is no natural consequence of obedience to law
following the making of a law. Even though there is something
necessary and obvious in the idea that some correspondence
between law and behaviour exists, it is no justification for the type
of relationship suggested by Timasheff. Is Hall's " basic hypothesis "
more acceptable? It is, but still leaves two foundational questions
to be answered: how does law affect behaviour, and how can that
effect be measured in order to explain what law does? These two
questions are foundational because without an understanding of
their elements, propositions, such as Timasheff's, are inadequate.
However, as demonstrated earlier, one can find in Timasheff's later
writings on the sociology of law that he pays more attention
to questions of this kind.
LEGAL REALITY AND SOCIAL REALITY
Tlmasheff's writings on law are conceptually programmatic. They

are not the detailed empirically descnptive statements that he
suggests they are,l6 even though they include numerous instances
of historical or sociological application. As with Sorokin's and
Gurvitch's sociology of law, Timasheff's is replete with encyclo-
paedic references in social philosophy, political philosophy, juris-
prudence and sociology;l7 for amalgamation of theoretical discourse
was a necessary precondition of his integrative enterprise. Such
an enterprise is now barely conceivable. We are perhaps more
aware of the distancing of language and tradition now, than Tima-
sheff and his contemporaries were, or were willing to admit. The
diSerent contexts within which law operates may make statements
15 This can appropriately be argued if the sociology of law is conceived of

within the confines of a sociology of knowledge: " . . the methodology of the
physical sciences is inappropriate for the sociology of knowledge because important
items of knowledge are existentially determined in concrete historical situations,
hence incapable of being measured quantitatively and interpreted on an absolute
scale." E. A. Tiryakian, " Existential Phenomenology and the Sociological Tradi-
tion (1965) 30 American Sociological Review 676.
lfi Especially less so than his contemporary Sorokin. See, e.g. P. A. Sorokin
Social and Cultural Dynamics (1937), Vol. II, Chap. 15; P. A. Sorokin, Society
Culture and Personality: Their Structure and Dynamics ( 1947), Chap. 14. For
critique, see N. S. Timasheff, " Sorokin on Law, Revolution, War, and Social
Calamities " in Pitrim A. Sorokin in Review (P. J. Allen, ed., 1963), pp. 247-275.
17 Unfortunately such massive knowledge, in Timasheff's case, is not without its
lapses. He, unlike Gurvitch, mistakenly calls Sinzheimer a Dutchman (" Introduc-
tion," op. cit. p. 60) presumably because Sinzheimer's book De Taak der Rechts-
soziologie was published in Harlem in 1935.
J@y 1981] N. S. TIMASHEFF S SOCIOLOGY OF LAW 419
incorporating the optimistic notion of law as the embodiment of

human achievement towards a determined "good" order increas-
ingly debatable. Timasheff's summation 40 years after his first
writing on the sociology of law that:
". . . the modern views oaf the social system may offor an
adequate conceptual scheme for the analysis . . . of the total
system insofar as it is influenced by law as an instrument of
peace essential for the survival and development of society" 18
may well appear unrealistic.

The framework of his writings is underpinned by reasoned
discrediting of the structure of power and its influence on social
life in the U.S.S.R. since 1917. His detailed critique of Soviet
" legality" over the whole period of his writing,l9 together with
his interest in the sociology of religion,20 circumscribes his analysis
of the sociology of law. In ideological terms he never seems to
stray far from a concensus based order, incorporating religious
freedom, demo-cratic political institutions and legal (restraining
both power holders and subjects) supremacy. This ideological
stance is embodied within his sociology of law, which may there-
fore be seen as organising knowledge as justification for or legiti-
mation of a distinct set of political ideals.2l For Timasheff then,
the initial context within which legal reality operates, is a social
reality structurally centred round harmonious social relations
progressing towards their embodiment within legal principles. On
the continuum of legal development mechanisms for the expression
of power are restricted by societal disposition, the social norms
engendered by social organisation. The primacy of law's derivation
through social forces,22 political organisation being only one of
those forces, which restrains law within the confines of collective
norms, represents for Timasheff actual description of law and
consequent validation olf its human purposes. A particular brand
of political sociology is thereby integrated into Timasheff's soci-
ology of law. Although such an analysis may seem to be a criti-
cism, a denial of " objectivity," it may equally be interpreted as
representing a more self-critical approach than others' attempts
to exclude the dimension of political sociology.23 However, to
exclude the role of political conflict in the sociology of law,24 as
18 " Growth and Scope of the Sociology of Law " in Modern Sociological Theory
(H. Becker and A. Boskoff, eds., 1957), p. 449.
19 See, The Works of Nicholas S. Timashe#, An Annotated Bibliography, A Le
Play Research Monograph (J. F. Scheuer ed., 1971), and G. Bobich, Sociologie et
Droit dans l'oeuvre d'un grand penseur europeen (1971). 20 Ibid.
21 See generally, D. L. Phillips, Abandoning Method (1973), Chap. 1, " Socio-
logists and their Knowledge."
22 Continuing the tradition of Spencer and Durkheim.
23 Potentially both Durkheim and Gurvitch's sociologies of law are open to this
criticism.
24 An example of the inappropriateness of attempted theorising which excludes
the dimension of political conflict is Y. Dror, " Law and Social Change," op. cit.
pp. 787-802.
420 IHE MODERN LAW REVIEW [Vol. 44
TimasheS attempts, is a serious shortcoming in his theory for-

mation. Petrazitsky demonstrated that the social reality oif law is
founded on the premise that law is nothing more than an existence
in the minds of those who have such experiences.25 Sorokin stuck
closely to Petrazitsky's theorzr in defining " law norms," 26 while
TimasheS attempted to add the role of enforcement through
political organisation. Whereas Petrazitsky's radically intuitive ideas
placed the reality of law at the individual psychological level of
ethical impulsions, Timasheff attempted to extend these ideas to
formulate a descriptive sociology of law. While, in so doing, he
seems to have ended up with conclusions interrelating law and
behaviour which can be severely criticised,27 the questions he asks
have a continuing significance. His attempt to concretise as an
understandable functioning part of social reality, the normative
propositions adopted by those in positions of political power, as
represented in his desire to understand " the social reality of ideal
patterns," 28 an exercise which he demonstrates is not solely
sociological, remains central to research and theory formation
within the sociology of law. However his commitment to producing
theoretical " scientific" answers to such questions was a serious
impediment. Laws operate in such a variety of political and social
contexts, grafted on to social stnlctures and organisations at
dif3 ering stages of growth and heterogeneity. Laws are replete
with meaning. But the findings of a descriptive sociology of law
which observes the actualisation of legal norms in social structures
social behaviour, social control, social order, social change or what-
ever are likely to be piecemeal, and of individual rather than
general relevance. Timashef3's understanding of socialogy as a
discipline presupposes his overestimation of the potential findings
of a descriptive sociology of law. It is his conceptual framework
directing questions towards how ideal norms are ei3ectuated through
socio-psychological processes into the everyday world of co-
ordinated activity and surface-level order, which is of continued
importance. The foundational questions of a sociology of law are
about predispositions. Which social structural arrangements or
social norms predispose the society towards adherence to legal
norms, on the one hand, and which characteristics of legal
norms determine their relevance (manifest or latent) in society,
on the other? It is now possible to see that legal mechanism
without coercive enforcement may in certain circumstances be
more readily acceptable and thereby more effective than with such
enforcement. It can be shown that orientation towards legal norms
25 Law and Morality: Leon Petrazycki, op. cit. Chap. II.

26 Social and Cultural Dynamics, Vol. II, op. cit. p 526, note 4; Society, Culture
and Personality: Their Structure and Dynamics, p 71, note 3 Hence Sorokin's
definition of " law norms " includes all imperative-attributive norms, and is thereby
wider in scope than most definitions.
27 As earlier in this article.
28 Op, CZt.
is more part of the socialisation processes within certain social

groupings than others.29 The sort of inquiries which Timashei3's
sociology of law anticipates are likely to prove fruitful. Ironically,
despite Timashei3's death in 1970, he may still have a significant
impact in these developing areas: for he left an incomplete
manuscript for a new book on the sociology of law, which, if
published, could prove extremely informative.
DAVID SCHIFF *
29 See generally J. L. Tapp (ed.), "Socialization, the Law, and Society" (1971) 27
The Journal of Social Issues, 1-234.
* Lecturer in Law, London School of Economics.

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N. S.

Timasheff's Sociology of Law

was formulated by Kelsen as a criticism of Petrazitsky.7 TimasheS

SOCIOLOGY OF LAW AND JURISPRUDENCE

12 (1937) 43 American lournal of Sociology 225-235.

' laws ' of a scientific nature concerning society in its relation to

Both Timasheff (the sociologist) and Kelsen (the jurist) thereby

concrete terms, was invaluable. If one accepts the plausibility of his

LAW AS A SOCIAL PHENOMENON DETERMINED BY ETHICS AND POWER

Before evaluating this treatment, it may be useful to look closer

52 " The Sociological Place of Law," op. cit. p. 214.

resolved by " an expression of the power phenomenon in simple

was: " The introspective method-simple and experimental ' self-

" Such propositions may be empirically refuted if it is found

57 " The Power Phenomenon," op. cit. p. 500. 58 Ibid. p. 502.

Does Timasheff's behaviouristic social explanation of law include

pointed out that a behaviouristic approach to social psychology is distinctly tenable.

would certainly be difficult to argue that the various attempts to

Schutz's criticisms are even more generally applicable to TimasheS,

76 As argued earlier. 77 A. Schut, op. cit. p. 51.

of social order which he describes suggests the coexistence of order

are present in these propositions. His classification of social group

as a set of normative propositions, whose comples functions 89 are

LAW S FUNCTION AS THE IMPOSITION OF PATTERNS OF SOCIAL

duct," 96 which inquiry is primarily socio-psychological. He presents

FU11 understanding of such a proposition would amount to an

THE CONFORMITY OF HUMAN BEHAVIOUR TO LEGAL PRECEPTS

Jerome Hall proposed that:

Timasheff responded that: " In actuality the proposition is more

96 " The Social Reality of Ideal Patterns," Op. Cit. p. 71.

social behaviour whereby the sociological study of social behaviour

Timasheff's claim rests on a number of distinctions. First, a

ultimately, to Gurvitch's phenomenological reduction of law to

G. Gurvitch, Sociology of Law, op. cit. pp. 4048.

statements. Hence an equation between social control and social

LEGAL REALITY AND SOCIAL REALITY

Tlmasheff's writings on law are conceptually programmatic. They

15 This can appropriately be argued if the sociology of law is conceived of

incorporating the optimistic notion of law as the embodiment of

may well appear unrealistic.

TimasheS attempts, is a serious shortcoming in his theory for-

25 Law and Morality: Leon Petrazycki, op. cit. Chap. II.

is more part of the socialisation processes within certain social

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