| Chapter 2: | The Sociology of Freedom of Speech |
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he was one of the classical social theorists, he did not treat law systematically and never developed an actual theory of law. Although the dominant theoretical resources derived from Durkheim and Weber,15 the applications of sociology of law continued to rest primarily in the hands of legal scholars––in other words, lawyers have put sociology to work to solve issues that legal theory alone could not satisfactorily resolve. One explanation for the dominance of legal scholarship is the “craft mysticism that surrounds law and thus renders it relatively impenetrable to the sociologist.” 16 The discussion in this chapter falls somewhere within the broadest parameters of the sociology of law or the sociological movement in law.
Since its emergence as a distinct social science in the late nineteenth and early twentieth centuries, sociology has yielded many theoretical approaches. Unlike the natural sciences, new sociological theories do not displace the old but the theories may coexist. Emile Durkheim (1858–1917) was selected as the sociological theorist to inform this discussion of free speech because unlike many other theorists, Durkheim presents comprehensive or self-contained explanations and rarely leaves open questions. In other words, he squares his theoretical corners and is not fuzzy around the edges. In popular parlance, Durkheim was a bit of a know-it-all. Since the intention is to use sociology to assist in enlightening legal and philosophical issues, theoretical models that leave open questions, even if more fascinating to contemporary sociologists, detract from the essential issue. Furthermore, and not to be overlooked, “Durkheim’s writing is direct, concise, and comprehensible.”17 Using a metaphor from physical science, Durkheim presented an approach which has broad application but perhaps does not answer all questions under extreme conditions; just as Newtonian physics fails as velocities approach the speed of light. To resolve all possibilities, sociology may require the complexity of more contemporary theorists like Talcott Parsons or Jurgen Habermas just as physics at the speed of light calls upon Albert Einstein.
Unlike Weber, Durkheim was not a lawyer. Furthermore, Durkheim did not treat law systematically in a single work but, unlike Karl Marx,