| Chapter 2: | The Sociology of Freedom of Speech |
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is, in a sense, an instrumental justification that subsumes individual autonomy arguments found in the constitutive justification. Second, the sociological explanation is, by definition, directly linked to real-world situations and, while perhaps lacking the elegance or clarity of the philosophers’ logic, represents freedom of speech as it must exist in modern highly developed societies. Third, the sociological argument presents an opportunity to connect doctrinal law with theory. Fourth, both Weber and Durkheim argued that sociology explains why and how different kinds of societies correlate with different kinds of laws.4 An essential aspect of the sociological argument centres on the intimate relation between laws and local societal values or norms. For example, while England and the United States are both modern industrial states, they are not identical in terms of history and culture and, consequently, their laws should not be expected to be the same but should be expected to be similar, and this expectation is borne out by reality. Fifth, the sociological explanation accommodates balancing free speech rights with rights to reputation and privacy.
In sum, a sociological explanation may be considered as either an independent basis for freedom of speech or, as the missing link––the Realpolitik that unites philosophy with doctrinal law. Before undertaking a sociological explanation for freedom of speech and because sociological theory is not the traditional language for explaining freedom of speech, it is necessary to become conversant, if not comfortable, with some of the language and theoretical models employed by Durkheim and his more contemporary colleague, Habermas.
Sociology and Law
Even before sociology was established as a discipline, the groundwork supporting a sociological approach to law was established in the early nineteenth century by the German legal scholar and philosopher, Friedrich Karl von Savigny. In response to legal theorists who supported codification as a natural system of law, Savigny argued that law could not be