The Program on Negotiation

The definition of sociology, my major back at school, is somewhat difficult to pin down.  Seems like a pretty basic thing to know, and yet I’ve always had a hard time figuring out exactly how to word it, despite having been in classes for three years now.  According to the trusty department website, sociology “examines the ways in which the forms of social structure and various social institutions affect human attitudes, actions, and opportunities.”  I have understood sociology in terms of healthcare; in terms of race, gender, and class; in terms of business; in terms of politics.  But for some reason, I never really thought about the sociological aspects of law.

This might just be due to my own romanticized notions about law, stemming from watching way too many episodes of Law and Order’s Ben Stone arguing cases as Assistant DA in the early 90s.  But while I know that laws themselves often result from and bring about societal change, I thought that the practice of lawyers is supposed to be immune from those societal factors.  My understanding is that once the law is set, it is the lawyer’s job to enforce that law, even if outside influences or cultural norms discourage it. 

But even if this is true, it seems that lawyers are still forced to navigate outside influences, pressures that are external to the actual negotiation or court session.  The research that I’m doing on ethics in dispute systems design centers on this exact problem.  How may lawyers who are conducting dispute system design processes face ethical dilemmas?  Where do their role as lawyer and their role as neutral come into conflict?  Should lawyers involved in dispute system design be constrained by the same rules as lawyers acting as advocates? 

Granted, in this case the lawyer’s objective is not to settle a specific case or argue on behalf of a client.  But it is to create a mechanism by which disputes can be resolved, and where perceived wrongdoing may be challenged.  In a dispute systems design situation, the lawyer’s objective is, in the most basic sense, to make a law. 

This means that a lawyer must take stock of the contextual and societal factors inherent in the environment, and their dispute resolution system must strike a balance between accommodation of these norms and objectivity in the face of competing interests.  Not an easy task, especially when you take into account the fact that lawyers are also bound by their own Model Rules of Professional Conduct, which may themselves conflict with a lawyer’s position as neutral dispute systems designer. 

But maybe that’s where law as a discipline is inherently sociological:  while lawyers are bound to enforce the law at all costs when acting as advocates, they are not so constrained when designing dispute resolution systems.  Because disputes arise out of culture, it has to be a lawyer’s job to perform the task of a sociologist:  to examine those “forms of social structure and various social institutions” that are causing conflicts. 

I realize here that I’m really only confirming the stereotype that sociology is a mushy major (“Everything is sociology!”).  But viewing the potential dilemma of lawyers as dispute systems designers in a sociological way could open up a whole new set of questions about the connections between law, neutrality, society, and culture. 

This entry was posted on Thursday, August 2nd, 2007 @ 11:07 am on the category PON Intern - Sara. You can follow any responses to this entry through the RSS 2.0 You can leave a response, or trackback from your own site.