| Chapter 2: | The Sociology of Freedom of Speech |
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approached from the perspective of idealised codes and statutes but may only be understood as an expression of beliefs that cannot be separated from the manners, morals, customs, and history of the nation. However, Savigny was not a common law enthusiast. He believed that the discovery of a nation’s law was not with the judges but with legal scholars. 5 More recently, Professor Vincenzo Zeno-Zencovich has written that freedom of speech “varies according to both time and space” and is “shaped by the community where it is expressed”.6 Similarly, the expression-related tort of defamation has been termed a “distinctively sociological tort.”7
Defamation law is particularly suited to a sociological analysis. Defamation is an unusual tort in that the wrongful actions of the perpetrator (speaker or publisher) are directed toward third parties and not the victim. This is an atypical situation because in most legally cognisable activities, the harm is inflicted on the victim directly.8 For example, while a battery consists of a punch or blow directed to the body of the victim, defamation does not consist of diminishing what the victims think of themselves but rather are injuries to victims caused by the speaker or author making third parties think less of the victims––an injury to reputation in the community and not to character or self-esteem itself. Indeed, a key element of defamation is publication to a third party. The relationship between the individual and how the individual is viewed in the broader community invites a sociological analysis.9
The formal relationship between sociology and law is, however, essentially a twentieth-century phenomenon because sociology did not really emerge as a distinct social science until Emile Durkheim and Max Weber effectively carved out the territory of this new discipline in the late nineteenth and early twentieth centuries. From the viewpoint of the legal profession, the value of sociology might be defined as the utilisation of sociological concepts to assist in evaluating and even creating legal policy and doctrinal law. From the perspective of the sociologist, the issue would be somewhat reversed, and law would be considered as a constituent element, like popular culture or government, that falls within