Introduction: the theory problem in law and society
It is not controversial to say that the field of law and societyFootnote 1 suffers from a theory problem.Footnote 2 Concerns over the state of theory in law and society are far from new, whether they deal with the failure to integrate and synthesize across multiple reigning theories within some subfields (Jacob Reference Jacob1983), the lack of a general theory (Friedman Reference Friedman1986), or the “backing away from macrostructural analyses and from theory in general” (Calavita Reference Calavita2002, 7).Footnote 3 Scholars across the field and over time have decried the dearth of multiple robust theories to structure the field. As economist Robert Ellickson (Reference Ellickson1991, 118) noted, “[l]aw and society scholars have been handicapped because they do not agree on, and often don’t show much interest in, developing basic theoretical building blocks.” Nearly a decade later, political scientist Austin Sarat (Reference Sarat and Sarat2004, 8) similarly acknowledged that “law and society research appears eclectic and noncumulative. It is neither organized around a single central insight nor an agreed-upon paradigm.” Another decade later, sociologist Sida Liu (Reference Liu2015, 2) noted, “[a]s the scholarly trajectory of ‘law and society’ moves from social science disciplines toward a more or less autonomous interdisciplinary field, it has gradually drifted away from its central theoretical foundations, mostly notably in social theory, and become a large agglomeration of empirical studies with a thin theoretical core.” As others have put it, our scholars are excellent at piling on, but we are not building (see, for example, Jacob Reference Jacob1983, 408, 413; Friedman Reference Friedman1986, 766, 779). Essentially, the field is stuck in a state of producing theoretically informed, high-quality empirical research at a more detailed scale or in new contexts, but the production of new, high-quality theoretical insights about law and society at a larger scale has stalled.
The need for high-quality theories to help structure the field is especially important now. The law and society field has grown dramatically over time, especially in the last several decades: the topics covered in the field have proliferated, while the number of people who identify as law and society scholars has likewise increased. Although this expansion is an exciting development and reflects the field’s successful institutionalization, it also leads to concerns that the center will not hold (see, for example, Sarat Reference Sarat and Sarat2004; Morrill et al. Reference Morrill, Edelman, Fang and Greenspan2020). Sarat (Reference Sarat and Sarat2004, 8) noted two decades ago that “while law and society research and scholarship is vibrant and vital, the field is experiencing a period of pluralization and fragmentation.” This development also entailed the “disintegration and fragmentation of existing definitions and boundaries of law and society research” (6). Reflecting on the field’s expansion, sociologists Carroll Seron and Susan Silbey (Reference Seron, Silbey and Sarat2004) debated the existence of, and need for, a canon that might keep the field together, coherent, and ultimately useful (see also Seron, Coutin, and Meeusen Reference Seron, Coutin and Meeusen2013). Since then, however, law and society has followed the tendency seen in other maturing fields to become a fragmented collection of subfields (see, for example, Ericson and Carriere Reference Ericson, Carriere and Nelken1994).Footnote 4 Research within these subfields increasingly speaks more to those works within their particular topical areas and less to other subfields (see, for example, Sarat Reference Sarat and Sarat2004; Liu Reference Liu2015). As a result of this expansion and fragmentation, combined with the lack of theoretical development, the field lacks both synthesisFootnote 5 and multiple strong theoretical architectures to scaffold the field.
Underlying these critiques of what Sida Liu (Reference Liu2015, 2) calls “stagnation in theoretical development” is a general lack of “big theories” about law and legal phenomena. Confusingly, when scholars make these and other critiques, they point to different theoretical deficiencies, sometimes using different terms (grand theory, general theory, high theory, social theory), which themselves have unsettled and conflicting definitions.Footnote 6 For our purposes, “big theory” refers to theories that are intended to explain some features of a large-scale or widely experienced social phenomenon in ways that are expected to be generalizable across time or space. Our definition is similar to Jonathan Turner and David Boyns’s (Reference Turner, Boyns and Jonathan2001, 353) definition of grand theory, which they say “seeks to explain a large social landscape, or in a more contemporary vocabulary it tries to link macro- and micro levels of reality.” They further explain that “[t]he more of reality to be examined, the more ‘grand’ is the theory” (354). Said another way, big theory is not incremental but, rather, represents a leap in knowledge either by generating useful new insights or by bridging multiple smaller but important insights; it is ambitious. Importantly, big theory cuts across empirical contexts. While each subfield can have its own set of big theories, truly ambitious big theory traverses and integrates subfields—it is the theoretical tissue that connects a disparate and fragmented field. When done well, big theory provides a common vocabulary, generates new questions that can be explored in multiple contexts, and showcases what it is about law and society that is useful to a broad audience.Footnote 7 This type of theory is what the field needs to thrive.
In this article, we seek to explain the relative dearth of big theory in contemporary law and society scholarship and what it means for the future of theorizing within law and society. After reviewing extant explanations for the decline of big theory across multiple academic fields, we offer a basic model of knowledge production that we call academic dialecticism (drawing on the classic thesis-antithesis-synthesis structure of Hegelian evolution). We argue that the process has been interrupted by the interaction of various empirical, normative, pedagogical, and practical or structural factors. These factors, we argue, have dissuaded scholars from moving onto a new stage of innovative research and incentivized them to continue to pursue smaller-scale, less innovative studies. To illustrate this argument, we use the law and society subfield “punishment and society” (one of law and society’s largest subfields) as a case study to illustrate how the standard phase within academic dialecticism of critiquing past theories has stalled under the weight of the various factors now facing the field.
Ultimately, we argue that punishment and society—and its parent field, law and society—suffers from a kind of stalled academic dialecticism. Like many other disciplinary and interdisciplinary fields, the field of punishment studies started with big theories of macro-level changes in punishment and in society (thesis). As the field grew, much of the newer research identified problems with those big theories (around the same time that grand theories lost their cachet across academic disciplines) and, instead, theorized at the micro and meso levels, often pitched as critiques of the earlier big theories (antithesis). While this phase was an important course correction, providing valuable critique, the field may have overcorrected, as we have not experienced the expected proliferation of theories that blend the two approaches (synthesis) or even the advent of new, significant debates—that is, the resolution phase signaling a completed Hegelian dialectical process has yet to occur. Instead, the field has stalled in the antithesis or critique phase. Although the punishment and society field illustrates this dynamic most vividly, we see these trends in law and society more generally as well as in other fields. In closing, we offer a path forward to an era of scholarship that enjoys a healthy balance of big and middle-range theory.
The problem: the decline of big theory in and beyond law and society
Is it a problem?
Before we explain some of the causes of big theory’s decline, we must first address whether this is indeed a problem worth discussing. As should be clear, we see high-quality big theory as a good thing for the field, and, thus, we see its decline as a problem. Big theory is the resin that helps connect diverse subfields and topical spaces, bridging myriad case studies together. Such theories foster intellectual curiosity and debate; they energize the field; they provide new frameworks to apply, extend, test, or critique. Such theories are also associated with “big questions,” the types of questions that are not only important for policy but also, more simply, for our understanding of how our world works (Calavita Reference Calavita2002). For many of us, such theories are what made us excited about the field to begin with—the theories that gave some of us “goose bumps” or made us feel compelled to learn more (5). In a large sense, they are a recruiting tool for the field, in addition to an analytical tool for our research. They tell us what it means to be a law and society scholar and what our field has to offer the world. Thus, for multiple reasons, we view the dearth of powerful big theories as a disheartening and disappointing development. We also suspect that this dearth is one of the reasons behind a kind of boredom and even anomie that many scholars in the field feel, as we hear in panel discussions, discussant comments, and private, informal conversations at various annual conferences.Footnote 8
It is also important to clarify that our concern is with theoretical stagnation, not with stagnation in the field more generally. By many measures, law and society is a thriving field: its membership is growing, the topics covered have expanded, the research and researchers are more globally representative than they once were, and its ideas and concepts have moved well beyond its primary specialist journals into other journals. We know much more about law, broadly construed, in many more times and places than we did even a decade or two ago.
Against this background, the relative lack of theoretical innovation (as opposed to extension and application) appears even more striking. What novel insights have we learned from this expansion? What theories help us make sense of this diverse and eclectic array of findings? Where are the theoretical frameworks that help us link disparate parts of the field together? Where are the energizing theories that excite the whole field, generate significant debates, and help us to understand the law and legal phenomena in a new light? Given the massive expansion of the field, why are we seeing only a few examples of generative works, sometimes confined to the presidential addresses at the Law and Society Association (LSA) (see, for example, Nielsen Reference Nielsen2024), amidst a sea of works that offer smaller theoretical extensions instead of a whole host of competing paradigms? Are all the low-hanging fruit taken, and is there little left for new scholars to uncover? Without big theory, can we overcome the increasing tendency for scholars to silo themselves into their own subfields (or sub-subfields)? For all of these reasons, we see the decline of big theory as an important, problematic development in need of explanation.
Common explanations for grand or general theory’s decline
The decline of big theory does not stem from current preference (see the commentaries in Savelsberg et al. Reference Savelsberg, Halliday, Liu, Morrill, Seron and Silbey2016) nor from a lack of original ambition. As incoming editor of the Law & Society Review (LSR) in the early 1970s, legal scholar Marc Galanter (Reference Galanter1973, 7) wanted the field to generate “a coherent social scientific understanding of the legal process” (see also Silbey Reference Silbey2000, 870). And, yet, that venture halted at some point. To be sure, the field has changed tremendously over the years: the transformation of the original law and society project, the institutionalization of the field, the internationalization of law and society, and the rise of other national or regionally specific fields of law and society (see, for example, Trubek Reference Trubek1990; Sarat Reference Sarat and Sarat2004; Morrill et al. Reference Morrill, Edelman, Fang and Greenspan2020; Chua et al. Reference Chua, Engel and Liu2023). But that does not tell us why big theory has fallen out of favor or why law and society scholars have become less theoretically ambitious over time. In this section, we explore other scholars’ compelling explanations.
First, however, it is important to note that the decline of big theory—especially under the banner of grand or general theorizing—is not unique to law and society.Footnote 9 This style of theorizing lost its cachet across diverse fields in the twentieth century’s last decades. For example, its decline is well known within sociology. As sociologists Turner and Boyns (Reference Turner, Boyns and Jonathan2001, 353) have put it, “the term ‘grand theory’ now carries negative connotations as something that failed scholars like Talcott Parsons once did, a half century ago.” Noting the apparent contradiction with the field’s continued “worship” of the classic social theorists (frequently, the core of the sociology degree’s required reading), they explain that “it appears that we like our early masters to be grand theorists, but in the age of specialization, we stand in their shadows rather than on their shoulders.” More than its absence, the outright rejection of big theory has extended to other, interdisciplinary fields as well. As another example beyond law and society, several decades ago, science, technology, and society scholar Stephen Fuchs (Reference Fuchs1993, 948) noted, “[a]t present, the field of science studies is rather indifferent or even hostile toward general theory. It appears satisfied with adding case study upon case study, and then doubting the very possibility of knowledge and representation altogether.” Commentators have made similar criticisms of the field of organizational theory, which some argue has not seen significant theoretical development since the 1970s—simply, smaller-scale extensions—leading to a debate over the health of the field (G. Davis Reference Davis2015; Lounsbury and Beckman Reference Lounsbury and Beckman2015). Taking a different tack, globalization scholars Paul James and Manfred Steger (Reference James and Steger2014, 420) noted that the concept of globalization became popular “at the same time that generalizing theory—or at least ‘grand theory’—lost its pre-eminence in academia,” suggesting that scholars were turning to something like a grand theory (without using those terms) just as classic grand theories had been delegitimized. Thus, we are not alone in this experience.
These trends across the social sciences are well known to, and presumably influence, law and society scholars as they are often situated in multiple disciplinary and interdisciplinary fields. Indeed, in the early 2000s, multiple law and society scholars noted the decline of high-level theorizing across the social sciences and in law and society (see, for example, Calavita Reference Calavita2002; Cotterrell Reference Cotterrell and Sarat2004; Seron and Silbey Reference Seron, Silbey and Sarat2004). As Carroll Seron and Susan Silbey (Reference Seron, Silbey and Sarat2004, 30) explained it, “[o]ver the last decade or so, across the social sciences there has been a turn away from large-scale theory development and abstract modeling to more situated and contextualized analyses of sites of social action.” As law and society scholars incorporate social science into their research, they bring with it other fields’ distaste for grand or general theorizing.
More than importing these objections, however, law and society scholars have likely been responding to whatever changes caused this distaste to begin with. Indeed, a leading explanation that these scholars offered is that social change itself reduced the scholarly appeal of big theory. Drawing on Jean-François Lyotard (Reference Lyotard1984), legal theorist Roger Cotterrell (Reference Cotterrell and Sarat2004, 19) attributed this decline, and the “loss of faith in ‘grand narratives,’” to the advent of postmodernity and all that came with it. That is, scholars now live
in a fluid, rapidly changing, intensely self-questioning and uncertain (Western) world: the coming of “a new age of radical rootlessness and doubt.” This applies not only to comprehensive systems of thought such as Marxism and the great religions, but to general theories of “society” as a stable, integrated totality, to political ideologies of all kinds, and to the very idea of “science” as the progressive unveiling of truth. All are said to flounder on the rocks of patent social contingency and indeterminacy. (19; internal citations omitted)
These changes, Cotterrell (Reference Cotterrell and Sarat2004) explains, help us understand the cultural turn to the fine-grained, the particular, and the contingent that has dominated much of law and society research (see Seron and Silbey Reference Seron, Silbey and Sarat2004). For Cotterrell (Reference Cotterrell and Sarat2004, 19; internal citations omitted), the decline of grand narratives has resulted in “a new privileging of ‘local knowledge’ and a perception of the failure or pointlessness of all attempts to generalize broadly about social change or social phenomena.” Others describe these changes as a general declining faith in the social sciences as tools for good or tools to uncover truth (see, for example, Trubek Reference Trubek1990). Essentially, we are savvy enough today to recognize, as sociologist and then–LSA president Kitty Calavita (Reference Calavita2002, 6) did, that “there are probably no universal laws because there are probably no universals in a social world that is fragmented and forever shifting.” Instead of remaking big theory to accommodate this complexity, however, scholars tend to avoid anything resembling big theory, perhaps because the decline of grand theory, grand narratives, general theory, and other forms of high-level theorizing has other sources as well.
Grand theory has also declined across the social sciences for empirical, normative, pedagogical, and practical (structural) reasons that are well known to law and society scholars. As early as the 1950s, grand theory was coming under attack for being so abstract as to be virtually useless; calls to use a “sociological imagination” required its exclusion (Mills [Reference Mills1959] 2000). Feminist scholars joined the conversation to denounce high theory as highly abstracted as it utilizes the “fathertongue” that sanitizes women’s “lived experiences” (Smith Reference Smith1990). The move away from grand theories can also be credited to the rise of standpoint theory (P. Collins Reference Collins1986; Smith Reference Smith1990; Harding Reference Harding2009) and a general emphasis on highlighting lived experience, which is central to critical race theory as well and has been exploding in popularity across fields in recent years (see, for example, McIntosh and Wright Reference Mcintosh and Wright2019). Across these arguments, particularities and localization of knowledge are prioritized over theory from above, which critics argued resulted in abstracting or removing people away from their bodily experiences and felt realities.
As we shall discuss more below, there has also been a growing recognition of the micro–macro divide or the way in which theories may appear true at the macro level but do not hold up on the micro level and vice versa. However, whereas some other fields saw this conflict creating a need to explore connections between the two levels (see, for example, Kemeny Reference Kemeny1976; R. Collins Reference Collins1988), in others, it has been viewed as evidence of big theory’s failure. Relatedly, we know that many of the classic and foundational social theories were simply empirically wrong. Scholars have demonstrated multiple factual errors in classic grand theories, and many of their hypotheses have been falsified.Footnote 10 Although others have argued that we can still learn from and update these theories rather than abandoning them entirely (see, for example, Garland Reference Garland1990; Rojas Reference Rojas2017), it has become easy for some scholars to dismiss classic grand theories and even the project of grand theorizing. Moreover, graduate students are not taught how to theorize at the grand level (Swedberg Reference Swedberg2014)—arguably, a legacy of C. Wright Mills’s ([1959] Reference Mills2000) distaste for grand theory (Tarifa and Zhupa Reference Tarifa and Zhupa2014).
Combining both empirical and normative concerns, there is also a growing recognition that classic grand theories were Eurocentric and employed colonialist thinking (Go Reference Go2020). Many grand theories were concerned with the changes wrought by modernity (circa 1750), primarily on Europe and often in comparison to those societies that appeared (to white Europeans) perennially premodern. These biases—for example, seeing Indigenous societies as simplistic and primitive and European society as complex, civilized, and advanced—are partly responsible for some of the empirical falsehoods underlying these theories. However, for some scholars, these biases are also normatively problematic, further tainting the grand theory project. Grand theories are seen as employing not only inaccurate thinking but also outmoded, inappropriate thinking and assumptions. Indeed, the fact that classic grand theory is associated with long-dead, white, European men (W.E.B. DuBois was long excluded from the list of classic theorists) is sometimes viewed as problematic and further reason to dismiss the enterprise. Particularly as the last decade saw the rising practice of “decolonizing” our syllabi, which well-meaning scholars often defined as adding women and people of color to a syllabus (for an Indigenous critique of these and related symbolic practices, see Tuck and Yang Reference Tuck and Yang2012), teaching what was perceived as inaccurate, outdated classic grand theory became highly debated or even a liability.Footnote 11
Finally, even if scholars wish to participate in the increasingly discredited enterprise, there are practical (and increasingly structural) reasons for scholars to avoid creating their own high-level, grand theories. For one, high-level theory is not necessary for a scholar to have a strong career or construct popular research as middle-range theory has become a powerhouse for theoretically minded scholars. Popularized by Robert Merton (Reference Merton1967) as a bridge between grand theory and detailed empirical study, middle-range theory allows scholars to pursue theoretically informed empirical research—our field’s gold standard today. Middle-range theory allows scholars greater flexibility to take into account the unique contexts of their research sites or highlight mechanisms that link broader context to the fine-grained particular, a possible bridge between the macro and the micro (see, for example, Morrill and Mayo Reference Morrill, Mayo and Susan2015, 20–22). This style of research is of course safer: it both engages with higher-level theories, giving it a certain amount of status in the field, and makes a theoretical contribution, albeit a small one. But safest of all, by being carefully detailed and heavily grounded in empirics, it is harder to argue with. The resulting “rich and nuanced” theoretical contribution “lack[s] the possibility of being refuted” (Besbris and Khan Reference Besbris and Khan2017, 148). By contrast, a higher-level theory runs the risk of being “nibbled to death” by scholars pointing out the myriad exceptions to an otherwise compelling theory—a point that historian and former LSA president Lawrence Friedman (Reference Friedman1986, 779) made nearly four decades ago but is still true today.
Middle-range theory’s ability to help scholars satisfy the reigning preferences for theoretically informed empirical research is related to other career considerations—namely, (increasingly) high-speed productivity. As Seron has noted, “[t]he pressures of academic production have been ratcheted up to a level that does not encourage the time it takes to read widely, reflect, and pause before entering the publishing cue—and, this all begins in graduate school itself where one is expected to have top tier publications prior to entering the job market” (Savelsberg et al. Reference Savelsberg, Halliday, Liu, Morrill, Seron and Silbey2016, 1032; see also Liu Reference Liu2015). Against these standard pressures, we can add the additional space and time needed for innovative theorizing. For many scholars, the resources needed to get there may not be worth the cost, particularly if there are few incentives to theorize at the grand level.
Another practical and structural consideration is the influence of funding and policy concerns on what scholars study. Law and society scholars have long cautioned about the influence of top-down exogenous forces on the field. Sarat and Silbey (Reference Sarat and Silbey1988) warned of the “pull of the policy audience,” which can influence not only what topics scholars choose but also how they understand the law, what methodologies they use to study it, and what type of theories they posit. We would add that writing for policy audiences—which these days means not only work commissioned or funded by governmental actors and non-governmental organizations but also studies that lend themselves to news coverage or that are useful for activists and advocates—does not lend itself to high-level theory, which can appear less relevant than an empirical result on some timely, narrowly defined practical question. Additionally, as Joachim Savelsberg, Ryan King, and Laura Cleveland (Reference Savelsberg, King and Cleveland2002) have illustrated in several studies, funding mandates can also shift the focus of and theories used in academic research; through funding opportunities, dominant political preferences can seep into research (see also Savelsberg, Cleveland, and King Reference Savelsberg, Cleveland and King2004). We would again add that funding mandates, with their focus on documenting and solving specific (funder-defined) problems as well as their tight timelines for results, do not lend themselves to high-level theory, nor do they require it. Finally, as higher education becomes more dependent on newsworthy research findings and fundable research programs, scholars may be subtly and not so subtly encouraged to think smaller.
It is worth noting that there may also be higher-level structural reasons for our field’s move away from big theory—namely, the maturation of the field itself (Fuchs Reference Fuchs1993). Essentially, we have spent several decades in a period of “normal science”—that is, of accumulating knowledge instead of identifying revolutionary new insights that change how we previously researched (Kuhn [Reference Kuhn1962] Reference Kuhn2012). As then-editors of the LSR Timothy Johnson and Joachim Savelsberg (Reference Johnson and Savelsberg2016, 6) put it, there has been “a shift” in the law and society field “from scholarly entrepreneurs to bureaucrats, from innovators to normal science scholars, and from generalists to specialists.” Indeed, although normal science has not dominated all of law and society’s subfields (Dudas Reference Dudas2004), it does seem to have descended upon law and society overall. As with middle-range theory, it is easier and safer—encouraged even (see, for example, Rubin Reference Rubin2021b)—to solve small-scale, and, therefore, manageable, theoretical or empirical puzzles, which is the staple of normal science, according to Thomas Kuhn ([Reference Kuhn1962] Reference Kuhn2012), an endeavor that does not require high-level theorizing. Again, this situation is not unique to law and society as other fields are maturing, changing, and facing similar pressures. Across the social sciences, “a new timidity is evident” (Turner and Boyns Reference Turner, Boyns and Jonathan2001, 353), most clearly found in “the proliferation of over-specialized theories” rather than in big theory (376).Footnote 12
The field’s maturation creates another structural contribution to big theory’s decline: as the range of knowledge grows, it becomes harder for scholars to keep up, encouraging them (by necessity) to focus on smaller and smaller slices of that knowledge instead of integrating across larger swaths of knowledge (see also Luker Reference Luker2008). Recall the point stated earlier that generating big theory requires reading a diversity of works, often in more than one discipline, and is thus more time expensive, which also means fewer publications: as the literature grows, reading widely becomes even harder, and big theory is further dis-incentivized. Indeed, a recent study reviewing research in multiple fields found that “growth of knowledge,” and the resulting increased burden in keeping up with it, results in less “disruptive” or innovative work (Park, Leahey, and Funk Reference Park, Leahey and Funk2023). We would argue that it is not just the burden of keeping up but also, in combination with the pressure to publish, the tendency to choose easier pathways to publication. We can see how this tendency further encourages scholars to think small: increasingly, scholars motivate their studies by reference to an empirical gap in the literature—that is, by the novelty of the context or population under study rather than by the theoretical contribution. In the pressure to publish amid a sea of articles, it is far easier to claim empirical, rather than theoretical, novelty. But the empirical novelty claimed often becomes smaller and more specific; it is harder (but more exciting) to generate innovative theory that spans empirical settings, but such work is not encouraged by a time-strapped, competitive environment. Together, these structural explanations may thus explain not only big theory’s decline but also its continued disappearance, and they are consistent with the general perception of theoretical stagnation in multiple fields.
A case of stalled academic dialecticism
The move away from big theory both within and beyond law and society is, we argue, overdetermined. Scholars have identified empirical, normative, pedagogical, practical, and structural reasons behind a shying away from big theory, but we believe these factors often work together to cause this outcome. In this section, however, we illustrate how one factor contributes to a field’s theoretical decline against the backdrop of these other factors. We show how our collective belief in the complexity of phenomena—birthed from our rejection of grand and generalizing theory—discourages our efforts to theorize a complex phenomenon at a large scale—that is, to generate big theory about such phenomena. We argue that the interaction of two factors—theoretical developments that embrace complexity at a time when small-scale theorizing is incentivized by our publishing structures—is most responsible for big theory’s decline. We offer a theoretical model to show complexity’s impact on our theorizing, which we then illustrate with a case study.
Like others (see, for example, Kuhn [Reference Kuhn1962] Reference Kuhn2012), we see academic scholarship and theory development as a dialectical process. In particular, we expect academic dialecticism to follow the standard Hegelian pattern of thesis, antithesis, and synthesis—a status quo, a critique, and a harmonized result. In an ideal-typical academic dialecticism, academics would embark on one set of research programs for some period (thesis). As is common in academic scholarship, the theories they generate inspire applications and extensions, but these theories and others inspired by them also provoke disagreements and competing models. Academics argue and point out problems with the original research, perhaps calling for a new set of research programs, which they and others then execute (antithesis). With multiple competing paradigms on offer, a new generation of scholarship seeks to reconcile the contradictions in the field to better make sense of the underlying phenomena. Perhaps they return to the original research programs, armed with the tools of the newer research programs, taking into account the original goals and the newer critiques. Ultimately, they create a new set of research programs that proceed in a more effective manner than either of the two preceding programs because it combines the best of each and addresses their limitations (synthesis). Although idealized here, this heuristic describes several vibrant fields.Footnote 13
We anticipate some standard features of these phases. Importantly, within each stage, there are competing theories, but they proceed with similar shared assumptions—it is those shared assumptions that form the basis of their respective phase. Each phase will overlap to some degree, of course, with the thesis phase lingering and working alongside (for a time) the antithesis phase; change does not occur overnight. And fields are never entirely homogeneous. But the general thrust of each phase, or its associated body of scholarship, can be apparent. How long each phase should last will depend on the field and its social context, and we take no stance on what factors lead one phase to give way to the next. But how long each phase should last in a healthy field can be determined by the pace of new insights and when it feels to those within the field that saturation has occurred—that the new studies are generally making increasingly incremental progress without significantly increasing knowledge.
Law and society scholarship is not a healthy field in our view but one suffering from stalled academic dialecticism (SAD). In a field suffering from SAD, academics are stuck in one phase, simply proceeding with more of the same style of research, without moving on to another phase. In the case of law and society, we argue that, after a generative period of field-defining research, we have become stuck in the antithesis phase critiquing earlier attempts at big theory and the assumptions that underlay them. We argue that the standard academic dialectical process has been interrupted by the previously discussed reasons—especially, the practical and structural factors—to prevent the cycle from continuing. Instead of critiques of big theory serving as an antithesis that will later be folded into a synthesis, the various incentives to shy away from big theory have extended the antithesis phase past its point of utility and discouraged the coming of the third phase.
For one, big theory is so belittled that scholars are dissuaded from even attempting to offer something resembling such a theory, even when new big theories could address critiques of grand or general theory and build something stronger and more effective, even revolutionary. Instead, scholars are incentivized to nibble away at the edges of a problem but in a field where there are numerous problems to explore in myriad contexts, which leads to fragmentation (see, for example, Fuchs Reference Fuchs1993). Indeed, we argue that critiques of big theory have become a cottage industry; because these critiques are much easier to generate than offering new theory—particularly, given the earlier structural problems that we mentioned above—we see a range of critiques, instead of a new era of scholarship, continuing well after scholars began complaining about the field’s stagnation.
While this development can be seen at the level of the field of law and society and across its multiple subfields, we illustrate this dynamic by zooming into a law and society subfield—punishment and society—where this dynamic is especially apparent before returning to the broader field. (For a fuller explanation of our choice to use punishment and society as a case study, see the Appendix.)
Stalled academic dialecticism in punishment and society
Thesis: the grand theories of mass incarceration and the punitive turn
It is well established that punishment and society in its current form (for example, since its founding in the 1990s) took as its main focus the rise of mass incarceration and its attendant policies (see, for example, Garland Reference Garland2018). Beginning in the 1970s, incarceration rates across the United States began rising, eventually leading to levels that were historically and internationally unprecedented (Garland Reference Garland2001b). More internationally focused scholars sought to explain a growing punitiveness (in policies, rhetoric, and incarceration rates) perceived across various Western and, especially, English-speaking countries, particularly the United Kingdom and Australia. Whether focused on the United States or certain Western countries, scholars referred to these changes more globally as the punitive turn, the punitive revolution, or the new punitiveness (see, for example, Pratt et al. [Reference Pratt, Brown, Brown, Hallsworth and Morrison2005] 2013; Savelsberg Reference Savelsberg2018). For many scholars publishing around 2000, there was a clear shift in how punishment functioned across the Western world, what some called a new “postmodern” or “late modern” style of punishment (see, for example Simon Reference Simon1995, Reference Simon2001; Garland Reference Garland1996; Lynch Reference Lynch2000a, Reference Lynch2000b; O’Malley Reference O’Malley2000; Pratt Reference Pratt2000a, Reference Pratt2000b; Vaughan Reference Vaughan2002). One early account bears special mention due to its longevity and influence: Malcolm Feeley and Jonathan Simon (Reference Feeley and Simon1992) described what they saw as the “new penology” in which risk management and general managerial tendencies had taken over important facets of the criminal justice system, leading to a shift from diagnosing and treating troubled individuals to controlling and managing risky populations.
Explaining these puzzling phenomena became the central focus for scholars across a range of disciplines—sociology, criminology, political science, anthropology, and law—including many law and society scholars. In the late 1990s and early 2000s, punishment and society scholars developed multiple influential accounts that are as close to grand or general theories as most scholars get in recent decades—what we are calling “big theory” given their ambitious explanations of nationwide or international penal trends linked to social phenomena at a similar scale. Feeley and Simon (Reference Feeley and Simon1992) explained the new penology by reference to significant changes in society at large, including shifts in the economy, labor market, poverty levels, and (relatedly) systems of discipline available to control the expanding “underclass.” Likewise, turning to social theory, David Garland (Reference Garland2001a) offered his theory of the “culture of control,” arguing that large-scale changes affecting the Western world (but especially the United States and the United Kingdom)—including globalization, economic changes, political changes, growing crime rates, and growing uncertainty generally—made governments incapable of protecting their citizens from crime (and other social harms) and delegated the work of crime control to citizens. Citizens, now especially wary of crime, invested in (superficial) crime prevention strategies. Governments, meanwhile, simultaneously overcompensated for their own weaknesses by overperforming superficial crime control functions such as incarceration and greater police presence (for an international account of the role of existential anxiety and punitiveness, see J. Young Reference Young1999; for a theory that incorporates environmental threats with other existential threats, see M. Davis Reference Davis1998). Similarly, Loïc Wacquant ([Reference Wacquant1999] 2009a, Reference Wacquant2009b) argued that large-scale changes in Western societies (especially but not only the United States), including the decline of the welfare state, led to an increase in joblessness and poverty, leading political and social elites to respond with harsher criminal justice policies and restricted welfare policies (and new, more punitive workfare policies) to contain and control this undesirable and politically dangerous population (see also Beckett and Western Reference Beckett and Western2001). In these and other accounts, the United States was viewed as the site with the most powerful social causes and, therefore, the largest penal effects—mass incarceration and its epiphenomena.
Focusing more on the United States itself, scholars beginning with Katherine Beckett (Reference Beckett1997) developed theories that explained how political changes within the country, following the successful civil rights movement, led politicians to use crime politics as a tool to get elected: politicians could use crime control as a dog-whistle to curry favor with racist white voters. Building on this idea, Simon (Reference Simon2007) also showed how the success of “tough on crime” politics for politicians spilled over into schools, workplaces, and families, shaping the expectations for management and leadership and ultimately changing the policies, choices, and practices that structured American lives.
Toward the end of this fertile period, the rate of big theoretical accounts slowed. Even so, one group of scholars continued to take seriously the idea of a significant change that needed explanation. However, instead of using mass incarceration as a dependent variable to be explained, they saw it as an independent variable whose effects needed to be documented and theorized. Thus, these scholars demonstrated the effects of mass incarceration on racial inequality in the country (and the policies that created and sustained it) (Western Reference Western2006); the life course of undereducated Black people, the hardest hit group (Pettit and Western Reference Pettit and Western2004); incarcerated people’s neighbors, children, and families’ material and social circumstances (Clear Reference Clear2007; Wakefield and Wildeman Reference Wakefield and Wildeman2013); voting and elections (Manza and Uggen Reference Manza and Uggen2006); and the labor market (Western and Beckett Reference Western and Beckett1999). In doing so, they linked a substantial penal trend to other aspects of society, now with the causal arrow pointing away, instead of toward, mass incarceration.
The last gasp of big theory emerged later, for a few years, when a small group of scholars focused on the apparent decline of mass incarceration and its underlying policies like tough-on-crime politics, which were often linked to the intervention of the economic recession and the growing cost of these entrenched penal policies (Clear and Frost Reference Clear and Frost2014; Gottschalk Reference Gottschalk2014; Aviram Reference Aviram2015; Dagan and Teles Reference Dagan and Teles2016). Again, the focus was linking large-scale penal developments to large-scale developments in society generally.
Common characteristics
This incredibly generative scholarship shares several important features that we describe as indicators of big theory. First, for the most part, these works took mass incarceration and its epiphenomena as a central focus—the subject whose rise or apparent fall, or whose consequences, needed explanation. In doing so, they mirrored how classic grand theories of punishment took the decline of capital punishment and the rise of the prison in the late eighteenth century as their central problem to explain. Likewise, classic grand theories were most interested in the effects of modernity on European societies, while many works within this period were interested in the effects of postmodernity (or late modernity, in some versions) on Western societies—in both cases, looking to shifts in punishment as the ultimate consequence of such historically significant social changes. Second, given the scale of these changes in criminal justice and society, much of this work operates at the international or national level, discussing trends either in national politics, across the United States, or across countries; aggregating the observed trends at the scale of populations, they constitute macro-level analyses. Third, these works offer sweeping (if carefully documented) causal claims about these macro-level developments, explaining historically significant changes to penal policy. For these reasons, we characterize these studies as big theory.
Antithesis: the empirical case against big theories of punishment
Starting almost at the same time as the big theories mentioned above but more significantly by the late 2000s and 2010s and continuing into today, multiple strands of research have questioned these earlier theories and the assumptions on which they were built, including their grandness and generality. Complexity, often used as a vehicle to challenge or simply sidestep the need for high theory (see also Healy Reference Healy2017), became the watchword of this new genre. For these later scholars, the true picture was more complicated and nuanced than such earlier theories could allow or account for. These newer studies identified important limitations in earlier accounts and greatly extended our understanding of penal trends and phenomena. Their critiques fall into multiple categories, including identifying penal variegation, geographical or jurisdictional variation, and gaps between theory and practice, but they are united in undermining some of the assumptions or claims of the earlier big theories. While these studies made important theoretical contributions to the field, and they reflect some of the best punishment and society work published in the last several decades, they are indicative, in our opinion, of a move away from big theory. Rather than offering new causal accounts, they offer more detailed descriptions of penal change.
Penal variegation
One of the earliest countermoves to these generalizing theories about mass incarceration and the punitive turn was a body of works that argued that the very penal trends that scholars were documenting and trying to explain were not so simple as rising punitiveness. A group of scholars argued that, rather than a punitiveness turn or revolution, there was greater continuity over time than the above theories allowed for. This continuity stemmed, in part, from the observation that punishment (penal policy) itself is always a mix of lenient and harsh, rehabilitative and retributive, correctional and custodial, managerial and emotional (see, for example, O’Malley Reference O’Malley1999; Brown Reference Brown2002; Hallsworth Reference Hallsworth2002; Garland Reference Garland, Blomberg and Cohen2003; Penna and Yar Reference Penna and Yar2003; Matthews Reference Matthews2005; Zedner Reference Zedner2006; see also Lynch Reference Lynch2012; Xenakis and Cheliotis Reference Xenakis and Cheliotis2019; Matthews Reference Matthews2020). Some scholars offered new metaphors for describing this variegation, including “hybridized” (Hannah-Moffat Reference Hannah-Moffat2005), “braided” (Hutchinson Reference Hutchinson2006), and an “assemblage” (Maurutto and Hannah-Moffat Reference Maurutto and Hannah-Moffat2006). Since then, scholars have added even more metaphors for penal complexity, including “tinting” (Dabney, Page, and Topalli Reference Dabney, Page and Topalli2017), “bifurcation” (Seeds Reference Seeds2017), “layering” (Rubin Reference Rubin2016), and “palimpsest” (Quinn, Canossini, and Evans Reference Quinn, Canossini, Evans, Harmes, Harmes and Harmes2020). Other scholars demonstrated the continuation of rehabilitation, long described as being heartily rejected since the 1970s (Bosworth Reference Bosworth2007; Robinson Reference Robinson2008; Phelps Reference Phelps2011; Goodman Reference Goodman2012; see also Dagan Reference Dagan2023). To theorize the punitive turn as such was thus problematic because, as these scholars demonstrated, the punitive turn was too black and white a concept when the reality was a showcase of technicolor.
Geographical/Jurisdictional variation
Another important strand demonstrating problems with earlier generalizing accounts is found in studies that demonstrated variation in penal policies and practices across geographical and jurisdictional units, requiring more complicated explanations to account for this variety. For example, Vanessa Barker’s (Reference Barker2009) three-state case study demonstrated how the different political structures of each state mediated public opinion in ways that led to different penal policies. Mona Lynch’s (Reference Lynch2010) historical study of Arizona’s penal policy and practice demonstrated not only how Arizona was an outlier to national trends for much of the twentieth century (for a similar illustration in Illinois, see also Jacobs Reference Jacobs1977) but also became a trendsetter for the rest of the country near the end of the twentieth century. Elsewhere Lynch (Reference Lynch2011) argued for the importance of bringing in the local level into scholarly analyses of punishment (see also Campbell Reference Campbell2018). Other scholars took up the call for exploring local variation within distinctive penal epochs by creating multiple historical case studies of states like Texas (Perkinson Reference Perkinson2008; Campbell Reference Campbell2011, Reference Campbell2012), California (Page Reference Page2011; Goodman Reference Goodman2012, Reference Goodman2014; Campbell Reference Campbell2014; Reiter Reference Reiter2016), Florida (Schoenfeld Reference Schoenfeld2018), and Pennsylvania (Rubin Reference Rubin2021a). In several of these case studies, we also see how even states are too opaque a unit of analysis, leading Ashley Rubin and Michelle Phelps (Reference Phelps2017) to argue for “fracturing the penal state” and avoiding treating states and state-level actors as monoliths (see also Lynch Reference Lynch2011). Although most of these studies have been qualitative, Phelps (Reference Phelps2017) quantitatively demonstrated state-level variation across the country by showing how the relationship between mass incarceration and “mass probation” was different across states.
More recently, scholars have moved beyond the state level to an even more fine-grained level to appreciate the differences between different types of population centers. Ruthie Gilmore (Reference Gilmore2007) and Lisa Miller (Reference Miller2008) were among the first to break states into their urban and rural or suburban constituencies and argue how each area had different interests, which then played out in state-level politics, often at the expense of urban areas. Since then, scholars have expanded their attention on rural locations, taking “place” seriously, demonstrating how rural areas have experienced mass incarceration remarkably differently than urban areas (Eason Reference Eason2017; Hall Reference Hall2020; Beckett and Beach Reference Beckett and Beach2021; Simes Reference Simes2021; Perdue Reference Perdue2023; Zhang Reference Zhang2024).
Looking beyond the United States, scholars have pointed to global variation as well. The standard Western conceptualization of punitiveness is largely associated with US and UK penal systems (Aas Reference Aas2012), both known for being “exceptionally punitive in comparison with other western democracies” (Lohne Reference Lohne2021, 4). As many theories were generated based on developments in the global North, they are of limited utility for theorizing about the global South; as such, they can hardly be considered general theories (see Sparks et al. Reference Sparks, Sozzo, Brandariz, Gallo and Melossi2020, including commentary from Sozzo Reference Sozzo2023). Some scholars have moved to develop a “Southern Criminology,” which takes into account the topics and lessons that are more salient in countries within South America and elsewhere in the global South (see, for example, Carrington, Hogg, and Sozzo Reference Carrington, Hogg and Sozzo2016). However, other scholars, noting that the global North –global South distinction sets up a false binary, have increasingly pointed to English-speaking Western countries that do not conform to the standard picture of growing punitiveness, including Scotland (McNeill Reference McNeill2019), Ireland (Brangan Reference Brangan2020; Brangan, Black, and Healy Reference Brangan, Black and Healy2022), and Canada (Maier Reference Maier2020). These works point to the importance of divorcing an association between archetypal Western penal structures from the United States and the United Kingdom as they oversaturate the literature as models yet do not reflect the variety of punitiveness found within the global North, let alone the global South. In doing so, they contribute to the push away from generalizing claims across jurisdictions common in earlier big theories to recognize penal variation across smaller scales.
The gap between penal policy and practice
Finally, another thread that emerged in reaction to the early scholarship on the punitive turn came from scholars who pointed out that, however harsh, managerial, or retributive penal policies had become, practice was often another thing entirely. To some extent, this was not a new finding, reflecting both law and society’s notorious gap between law on the books and law in action (see Pound Reference Pound1910; Gould and Barclay Reference Gould and Barclay2012) and lessons from historical studies in which prison administrators, for example, publicly supported rehabilitative practices but followed managerial tendencies behind closed doors (Jacobs Reference Jacobs1977; Rothman Reference Rothman1980; see also Goodman, Page, and Phelps Reference Goodman, Page and Phelps2015; Rubin Reference Rubin2021a). Now, however, instead of administrators or line staff rejecting rehabilitative policies, it is the policies associated with the new punitiveness (and, especially, the new managerialism)—historically, policies that law enforcement and corrections personnel were predicted to favor—that did not exist on the ground (Lucken Reference Lucken1998; Lynch Reference Lynch1998, Reference Lynch2000a; Hannah-Moffat Reference Hannah-Moffat1999; Cheliotis Reference Cheliotis2006). In this way, big theories of penal change—focused on policy change that did not fully reflect actual practice—overstated the change, theorizing something closer to a mirage, and missed the important determinants of the penal experience.
Common characteristics
Perhaps even more than the earlier generation of research, these critiques have become a virtual cottage industry for scholars. Some commonalities in these large and growing literatures bear emphasizing. First, each of these accounts seeks to complicate the earlier, general, national, or international picture of punishment (especially in the United States and across Western countries). They problematize the idea of a single phenomenon to be explained like mass incarceration, pointing instead to a kaleidoscope of policies and practices that constantly change and are difficult to pin down long enough to generate a coherent account. Second, much of this research is conceptually rich, creating new metaphors and catchphrases that can be applied to numerous historical and geographical settings, but they are not theoretically rich in the tradition of grand or general theories, laying out complete pictures across national or international settings, multiple time periods, or multiple areas of criminal justice as we saw with, for example, “the culture of control” or “governing through crime.” Ultimately, they lack clear theories about the causes or causal mechanisms behind large-scale penal change and, instead, bite off a smaller chunk of penal change without linking it to a broader trend or making the case that broader trends are too ephemeral to theorize. Third, much of this literature focuses on the micro or meso level—that is, individual organizations and neighborhoods, counties, or states—rather than focusing on macro-level developments visible at and across the national or international level or connecting what happens at the macro and micro levels. This sort of smaller-scale work is necessary and helpful for rounding out our understanding of punishment and penal change—and to lay the foundation for future big theories of punishment—but it is not enough on its own for a field to thrive. While they improve our sense of what change looks like across space and time, they fail to provide coherent theories by not identifying consistent drivers of that change. Consequently, while, early on, the critique posture was enormously generative and exciting, several decades in, it is time for a new phase of research, one that clarifies and explains the increasingly messy picture instead of further complicating it.
Little synthesis: a case of stalled academic dialecticism
With these useful critiques of the generalizing theories of mass incarceration and the associated punitiveness, scholars could generate new theories that complicate earlier narratives but still generate general theories of penal trends. Under a healthy academic dialecticism, we should see a new (synthesis) stage characterized by this sort of productive combination of the two earlier stages of big theories (thesis) and the critiques thereof (antithesis). However, punishment and society scholarship currently lack the expected proliferation of synthetic theories that blend the two approaches to research. Instead, we are stalled in the critique phase, offering more (and more elaborate) accounts of punishment at the micro and meso level (often showing errors in earlier macro-level accounts) without returning to research at the macro level that enables big theory.
Importantly, while there is no proliferation of such theories, there are a few exceptions in which punishment and society scholars have produced high-level synthetic theory—that is, offering general accounts of macro-level phenomena while recognizing the messy complexity at the micro and meso levels. Michael Campbell and Heather Schoenfeld (Reference Campbell and Schoenfeld2013) created a political sociology of punishment that blends the state-level approach with temporal trends at the national level to account for changes in US penal policies over the last half century (see also Schoenfeld and Campbell Reference Schoenfeld and Campbell2023). Looking at penal trends across the country over US history, Philip Goodman, Joshua Page, and Michelle Phelps (Reference Goodman, Page and Phelps2015, Reference Phelps2017) offered an “agonistic” account: using Bourdieusian field theory (see Page Reference Page2011, Reference Page, Simon and Sparks2012), they show how penal change results from shocks to the penal field that shift the resources and influence of various penal actors, each with their own goals and motivations for promoting one penal policy or another. Their account thus reconciles how such conflict over penal policy, which often shapes the messiness at the micro and meso levels, can exist when the national picture seems so coherent. Ashley Rubin (Reference Rubin2015, Reference Rubin2019) applies neo-institutional theory to penal policy, arguing that temporal and spatial variation in penal trends, as well as gaps between penal policy and punishment in practice, can be explained by diffusion trends of what she calls “penal templates.” Using examples throughout US history, Rubin demonstrates that these templates are innovations that begin in some states, often at times of great social upheaval that is visible at the national level, and spread to other states around the country. Even those states that do not necessarily need such tools adopt them anyway to secure their legitimacy by conforming to penal trends. This work thus theorizes how social changes can have an impact, but it is mediated by field-level dynamics (see also Rubin Reference Rubin2021a).
Most recently, two scholars have turned to international comparisons rather than historical change to make sense of American penal exceptionalism. Lisa Miller (Reference Miller2016) compares the United States, the United Kingdom, and the Netherlands to explore the role of different political institutions in mediating the impacts of social changes on penal politics and policies. Garland (Reference Garland2020) theorized that the extreme levels of punitiveness in the United States reflect a globally unique combination of weak social controls (leading to high levels of violence) and a preference for strong penal controls (which are weak preventers of crime). These theories represent some of the few exceptions in which scholars attempted high-level theorizing in the last decade or so.
Notably, Garland (Reference Garland2018, 14), the field’s founder, is optimistic about these developments, seeing emerging theories as just the beginning. Pointing to the work of Campbell and Schoenfeld (Reference Campbell and Schoenfeld2013) and Goodman, Page, and Phelps (Reference Goodman, Page and Phelps2017), he explains that “second-generation scholars are beginning to take stock and explore the broader consequences of their historical research, developing new syntheses and rethinking more general historical narratives and sociological accounts in the light of them” (Garland Reference Garland2018, 14). But it is notable, given the growth of the field, that, in his survey of where punishment and society has gone, Garland could only point to a handful of scholars doing this work.
Despite Garland’s optimism, we argue that, given the massive growth of the subfield, there should be far more scholars and theories to point to rather than a handful of exceptions. Indeed, the insights that scholars have raised over the last decade or two, which trouble the earlier grand theories of mass incarceration, should have provided enough inspiration to establish far more new grand theories that take those critiques into account. Such new theories could also move beyond theorizing mass incarceration. Significant changes have taken place that could be theorized at the macro level with grand theoretical narratives, including the (heterogeneous) drop in incarceration rates, the return of tough-on-crime politics, the (relatively) widespread or at least newly visible calls for decarceration or abolition, the greater public awareness of mass incarceration, the international exportation of penal policies and practices, the growing overlap of immigration control and criminal justice, and the nascent popularity of Scandinavian-style prisons within the United States (and other countries). Nor are these developments too new for theory development: while some of these changes are still fairly recent, others are entering their second decade, suggesting that scholars have had ample time to theorize them. What explains the proportional dearth of such theories within the subfield of punishment and society?
Beyond exceptions: treating complexity as a challenge, not a roadblock
We argue that critiques of the last two decades, in combination with the other factors we highlight above, have effectively made contemporary scholars overly hesitant to return to big theory: punishment scholars have effectively made the case that punishment is a complex social institution and that it is difficult to theorize in generalizable ways (Garland Reference Garland1990, Reference Garland2018). It is not just a general distaste for grand theory and its associations with long-dead colonialist European men or a general turn away from general theorizing; in a context in which demands for research are higher and the expectations for theoretical payoffs are lower, the incentives to demonstrate how big theories are wrong far outweigh the incentives to generate new big theories. While the first phase of punishment and society research witnessed scholars generating big theories relating penal and social change that were reminiscent of the grand theories of old, the subsequent critiques have doubled down on penal complexity and the problems with big theories. Increasingly, scholars have turned to analyzing smaller scales where empirical and theoretical accuracy stands a greater chance of success. The result is much smaller, incremental improvements in the tradition of normal science rather than the exciting, but risky, high-level theories. Instead of taking a big swing that could be generative for the field or that may miss big, scholars are taking smaller swings that are more likely to achieve modest levels of success without doing much to move the field forward (for example, offering more details and nuance but not changing our understanding). In a subfield that is so focused on micro- and meso-level phenomena and middle-range theories, often disconnected from each other or a larger framework, we wish to see more work like that generated by some scholars aiming for complete theories pitched across levels (including the macro level) and intended to be more generalizable as discussed above (see, for example, Campbell and Schoenfeld Reference Campbell and Schoenfeld2013; Goodman, Page, and Phelps Reference Goodman, Page and Phelps2017; Rubin Reference Rubin2019; Garland Reference Garland2020; Schoenfeld and Campbell Reference Schoenfeld and Campbell2023). Ultimately, we urge scholars to view the complexity of punishment (and legal phenomena generally) as a challenge to theorize rather than backing away in defeat.
Returning to the larger field of law and society
We have illustrated the problem using the subfield of punishment and society, but this situation is not unique to punishment and society, although, as a subfield, it may be easier to see. Across law and society, a similar dynamic has taken place, although with proportionately fewer attempts (over the course of law and society’s history) at general theories of law and beginning much earlier than in punishment and society. Even writing multiple decades ago, legal historian Lawrence Friedman (Reference Friedman1986, 779) summarized it well: “Grand theories do appear from time to time, but they have no survival power; they are nibbled to death by case studies.” Moreover, theoretical frameworks that have been popularized in law and society and that have generated the most research—for example, legal consciousness, legal pluralism, legal cynicism, procedural justice—tend to embrace the micro level rather than the macro level and prioritize messy variation rather than offering more general theories (for exceptions that aim higher, see Laurie Edelman’s [Reference Edelman2016] theory of legal endogeneity and the theory of relational rights put forth by Laura Beth Nielsen [Reference Nielsen2024]). In some law and society subfields, critique may be less common than applications and minor extensions of existing theory without the creation of new theoretical frameworks. The result in some cases is that, instead of interesting and energizing debates between competing perspectives, we see a kind of watering down of the original theory in less incisive applications of the original, as Silbey (Reference Silbey2005) noted of the highly popular legal consciousness framework two decades ago (for an exception, see K. Young Reference Young2014; Young and Chimowitz Reference Young and Chimowitz2022). Indeed, Silbey’s call for contemporary legal consciousness studies to move beyond the experiential level and to tether consciousness to the continuation of hegemony, as earlier studies did, which could have enabled big theory, has largely gone unheeded (Heyer, Rubin, and Talesh Reference Heyer, Rubin and Talesh2025). Indeed, some legal consciousness scholars defend this development, noting that the untethered version has enabled the extension of the concept to more diverse populations and settings, thereby enabling its explosive growth (Chua and Engel Reference Chua and Engel2019). This pattern is common in other fields like sociology “where concepts become less and less specific as they are applied to more and more disparate research projects” (Besbris and Khan Reference Besbris and Khan2017, 148). As in sociology, when new extensions to existing theories emerge in law and society, they resemble a kind of Zeno’s theory, with progress becoming increasingly incremental.
As we have illustrated with our case study of punishment and society, complexity and nuance have become the watchwords of these new studies, which carve out novel variation rather than crafting theoretical integration. Indeed, the legal consciousness literature offers a useful example of the same dynamic that we show in the punishment and society subfield. Most such research is incremental, enumerating the many different legal consciousnesses that exist, the different ways in which they shape and are shaped by identity, the many ways in which people resist the law (often without meaningful success), and the many norms that prevent someone from mobilizing the law (Chua and Engel Reference Chua and Engel2019). Where are the bold claims? Where are the full-fledged theories that unite the many different consciousnesses, identities, strategies, and norms and that explain how they fit together or work against each other, under what conditions, and why?
Indeed, it is worth pausing and asking whether law and society does not lend itself to big theory. Given the history of the field and the greater role of legal realism with its middle-range focus than grand social theory, one could argue that law and society is not conducive to big theory, perhaps explaining the dearth of grand theory that many important law and society figures have bemoaned, as illustrated above. However, we argue that there is nothing inherent to law and society that should make big theory repugnant or less useful. Instead, analyzing social and legal change—both whether and how law can bring about social change or how social change impacts the law (see, for example, Rosenberg Reference Rosenberg1991; McCann Reference McCann1994; Edelman Reference Edelman2016)—which is such a key consideration in the field, lends itself to big theory. Meanwhile, those subfields focused on the micro level, like legal consciousness, could contribute to these theories by linking up micro-level developments with macro-level developments at a broader scale instead of carving out more variation in narrower contexts.
Because so few scholars are rising to meet that challenge, however, the field has become rather lopsided with much more work focused on the middle range, often explicitly or implicitly motivated by criticizing prior big theories, than on generating complete theories, let alone big theories. To be sure, there will always be fewer big theories than applications, extensions, or critiques. This ratio represents a balanced field or a healthy intellectual ecosystem: as noted above, an important function of big theories is to generate debate in the field. A related function is to create a set of hypotheses or expectations to test in diverse contexts, creating research agendas for other entrepreneurial scholars, especially junior scholars looking for a gateway project into the field. A properly functioning academic dialecticism offers the excitement that follows the emergence, initial application, and tweaking of new theoretical frameworks and, ultimately, the competition of multiple frameworks. But, at some point, the field becomes saturated, and the pace of new insights slows, each becoming too incremental to generate excitement, and the field is no longer a healthy ecosystem. As the field becomes increasingly lopsided, producing more of the same, often within specific silos, it can become rather tedious and, ultimately, dangerous for the field. That situation is what we have called a case of stalled academic dialecticism, which we argue characterizes our field.
Conclusion
Within the field of law and society, we see various and long-standing expressions of discontent with the state of theory, social theory, and grand theory and, more generally, the proportional lack of exciting and innovative theoretical research (see, for example, Friedman Reference Friedman1986; Ellickson Reference Ellickson1991; Calavita Reference Calavita2002; Sarat Reference Sarat and Sarat2004; Liu Reference Liu2015; Johnson and Savelsberg Reference Johnson and Savelsberg2016). However, it is not enough to acknowledge that we have a theory problem; nor can we rush to a solution. Before we can fix the problem, we must understand why it exists and where it comes from since the cause can shape our available solutions. We have sought to explain the dearth of “big” theory in law and society. After reviewing several known sources for this uninspiring state of normal science across many fields, we have argued that our field suffers from what we call stalled academic dialecticism. Specifically, following the earlier embrace of big theory, we see the rise of various critiques of that approach. However, rather than following a traditional Hegelian dialectic applied to research production, in which a new wave of research would combine both the aspirations of big theory and the lessons from critiques of big theory, we are seemingly stalled in the critique phase. Essentially, we are stuck offering more, and more specific, analyses of legal phenomena, demonstrating nuance and variation, rather than building new frameworks that can account for variation but still make generalizable causal claims. We have argued that the focus on enumerating complexity or variation at a time when scholars are incentivized to publish more, and more quickly, has been a dangerous confluence for the field: there is a nearly infinite trough of nuance from which scholars can draw. The result for the field has been the production of more of the same, generating a feeling of “stuckness,” which we believe accounts for some of the dissatisfaction in the field. But this dissatisfaction can be alleviated.
Despite this “stagnation in theoretical development” (Liu Reference Liu2015, 2), we argue that there is reason for optimism. Precisely because the field contains a wealth of high-quality, theoretically informed empirical research, it is ripe for next-generation insights and theoretical development. We therefore echo Liu’s (Reference Liu2015) call for more social theory (as well as earlier scholars’ calls for more theory generally) in law and society research (see, for example, Calavita Reference Calavita2002). However, whereas Liu (Reference Liu2015) sought to invigorate theoretical development by offering a new “powerless” approach to studying law and legal institutions, we close by offering a modest formula for constructing big theoretical insights. What do works by Goodman, Page, and Phelps (Reference Goodman, Page and Phelps2017), Garland (Reference Garland2020), and Nielsen (Reference Nielsen2024) have in common? They acknowledge the complexity of the legal phenomena, but they nonetheless generate coherent accounts explaining the phenomena and, because they draw on examples in the existing literature, these accounts are portable across time, place, or topic. We highlight two features of this research and how it becomes a model for big theory.
First, these scholars embrace the expectations of the third phase in a Hegelian dialectic; this phase is synthetic in the sense that it takes the best of the two prior phases and leaves the rest behind. To generate exciting theoretical insights, scholars can adopt the earlier aspirations of big theory but learn from its critics; they should not only provide generalizing theories that account for the macro level but also recognize—and seek to explain—the messiness or differences that exist across the micro and meso levels; in doing so, their accounts should span the micro and macro levels, taking into account the valid critiques and lessons of the last several decades.
Second, scholars can synthesize extant research to generate their own theoretical frameworks. Galanter’s (Reference Galanter1974) article—the LSR’s most highly cited article and the subject of a retrospective special issue decades later, among other honors—offers an example of how to utilize extant studies to generate groundbreaking theory. As Silbey (Reference Silbey1999, 799), then-editor of the LSR, explained of Galanter’s article, “it attempted to theoretically synthesize the results of the accumulating body of empirical research on law that the Review had been publishing since its inauguration 8 years earlier.” This willingness to synthesize the wealth of extant research is necessary to generate new big theories in the field that traverse places, times, populations, or topics, as done by Goodman, Page, and Phelps (Reference Goodman, Page and Phelps2017) and Rubin (Reference Rubin2019). It also offers a means of bridging subfields and breaking scholars out of their respective silos as good synthetic work requires reading across subfields and topics (see Heyer et al. Reference Heyer, Rubin and Talesh2025).
A strong field is characterized by a diversity of types of research rather than complete homogeneity. First and foremost, our call for more big theory is not a call for everyone to conduct big theory: we neither expect nor encourage all research to follow this approach. This would be equally unwise and as unsatisfying as the current state of affairs. Nor are we calling for some scholars—those who wish to generate big theory—to conduct this type of research alone and never engage in other varieties. The point is not to repeat the excesses of previous stages in field development. Rather, we call for ending the de facto, self-imposed moratorium on big theory so that we can have a richer diversity of types of theories and levels of analysis rather than a virtual monopoly of middle-range theory at the micro and meso levels. Individual authors alone cannot make these changes: the field itself—including tenure and promotion committees, journals, reviewers, and conference organizers—must also take steps to encourage a variety of work. In doing so, the field should support a thriving ecology of theories and levels of analysis rather than a monoculture of smaller-scale theorizing that has been its staple in recent decades. As we have outlined multiple factors that have caused this problem, the field will need a multifaceted solution to address it.
For the field to continuously (and coherently) expand, innovate, and remain a recognizable collective, its scholars must develop multiple rich theories capable of explaining the law’s formation, evolution, and role as a social institution. Such theories foster connection across discrete studies, enabling us to extend insights beyond a given case context or topic, thereby bridging the field and providing useful social knowledge. Although often overlooked in policy spaces, big theory underpins social change: it helps us understand the world, which is a prerequisite for actionable change. Ultimately, we argue that the law and society field needs to make space for scholars to move onto the next stage of literature development—a return to big theory’s aspirations, but a return that honors the lessons demonstrated by big theory’s critics—to avoid perpetual theoretical stagnation and fragmentation.
Appendix: Motivating Our Case Study
We selected the subfield of punishment and society for three reasons. First, the punishment and society field offers a kind of best-case scenario (Shapiro Reference Shapiro2013) for big theory. Even more than in law and society generally, grand theory has been central to punishment and society research and the creation of the subfield itself. Most of the celebrated grand or general theorists (for example, Émile Durkheim, Karl Marx, Max Weber, Norbert Elias, and Michel Foucault) either spoke directly about punishment and penal law or their early followers adapted their theories to punishment (Garland Reference Garland1990). In particular, Garland’s (Reference Garland1990) compilation of the classic grand social theories as they applied to punishment has played a significant role in the teaching of punishment and society and the tenor of its research (for an example of how social theory remained influential in the subfield more than twenty years later, see Sparks and Simon Reference Sparks and Simon2012). By contrast, despite the large role of law in Durkheim, Marx, and Weber’s classic social theories, social theory played a much smaller role in the foundation of law and society, whose roots lay more in legal realism (see, for example, Seron and Silbey Reference Seron, Silbey and Sarat2004, 33). As we discuss, many early punishment and society works that became foundational texts for the subfield in the late 1990s and early 2000s followed in this vein of grand or general social theoretical approaches to explaining punishment. Because grand social theory started off at such a height in punishment and society, it also has farther to fall, making it an extreme case that will helpfully illustrate the mechanisms behind these changes (Seawright and Gerring Reference Seawright and Gerring2008; Rubin Reference Rubin2021b).
Second, as a subfield of law and society, the punishment and society field is newer and smaller, so it is easier to see and summarize briefly the dynamics at play. Punishment and society, as it is recognized today, began in earnest in the 1990s, with the publication of Garland’s (Reference Garland1990) text and the founding of the journal Punishment & Society in 1999. During the following decade, punishment and society was established enough to become a collaborative research network of the LSA in 2007 (first called Punishment and Social Control and renamed Punishment and Society in 2016). By contrast, law and society was established in the 1960s, which witnessed the first meetings of the LSA and the creation of the LSR, with the Law & Social Inquiry and Law & Policy journals created in the following decade. Additionally, the law and society field is necessarily a much larger and more complex field and, therefore, difficult to summarize with great accuracy in the space of an article’s findings section.
Third and finally, the punishment and society field shares several key similarities with its parent field of law and society: punishment and society has arguably become less exciting, with few big debates or controversies or large-scale innovative insights that characterized it in earlier decades. The central question for punishment and society scholars in the 1990s and 2000s was what caused mass incarceration. While that question is fairly well resolved, scholars have mostly moved on to other, less theoretically interesting questions—empirical questions such as whether mass incarceration is truly on the decline and normative questions like what US society should do instead. Meanwhile, a host of new topical areas have sprung up without a clear connection to each other, essentially operating as new sub-subfields; these new areas lack a central debate animating the emergent literature or a critical mass of scholars working on them, at least not in the way in which mass incarceration captured earlier scholars’ imagination. This state of affairs arose fairly concomitantly with the profound (but more recent) expansion of the subfield and the slightly later (relative to law and society generally) move away from grand or general theory.
Beyond these similarities, commentators on both law and society and punishment and society describe the problems that we have enumerated in strikingly similar terms across the two fields. For example, then–LSR editors Timothy Johnson and Joachim Savelsberg (Reference Johnson and Savelsberg2016, 6), introducing the fiftieth-anniversary issue of the LSR, highlighted how the field had changed: “[M]ethodological sophistication has increased over the years. At the same time, today’s work may be less groundbreaking, some approaching a state of normal science and all reflecting a higher degree of thematic, theoretical, and methodological specialization.” Similarly, in a recent assessment of the punishment and society subfield, Garland (Reference Garland2018, 9), its modern founder, noted the “new wave of scholarship … is perhaps less ground-breaking in character but is more theoretically sophisticated, more methodologically mature, and more impressive in the consistency and range of its contribution.” Garland also noted that the subfield’s “theoretical debates are more focused and more particular” than they once were (12). Although theory has become more “sophisticated,” Garland noted it has also narrowed from the grand and general theories of old to the middle range (9). Putting it somewhat generously, he noted that “[g]eneral theory has not disappeared. But general theory is no longer expected to do the fine-grained analytical work required for the explanation of specific penal practices and institutions” (12). Concomitantly, scholarship continues to improve by becoming more empirically and theoretically accurate and avoiding the problems that plagued earlier research, yet the resulting payoff has been small. According to Garland, “[t]he overall picture of penal change or penal policy hasn’t necessarily changed drastically but that picture is becoming more nuanced and fine-grained” (14). With the greater emphasis on detailed empiricism and middle-range theory, the subfield has become less innovative and reflects the theoretical “stagnation” plaguing law and society at large and other fields (on similar “nuance traps” plaguing sociology, see Healy Reference Healy2017).
For Garland (Reference Garland2018), a major factor in this development is the expansion (and success) of the subfield, just as general law and society scholars have argued of the larger field. He has noted that punishment and society was such an attractive subfield at its outset, especially beginning around 1999 and the decades since, because, among other things, “it offered researchers the possibility of investigating large, relatively unexplored questions and making empirical and theoretical contributions of a fundamental kind” (9). More recently, however, since the subfield has grown so much and many of those questions have been addressed, with fewer new central or field-defining problems to take their place, the same opportunities from earlier are no longer available. Thus, even though scholars have more theoretical and empirical tools at their disposal, and the resulting research is better in quality, it is also less exciting and novel. Importantly, Garland makes clear he is not critiquing the newer generation of scholars.Footnote 14 But, he implies, the low-hanging fruits have been picked, and now the only thing left to do is find nuance (14).
Before proceeding, there is a subtle point that merits explanation. Punishment and society emerged at a moment when grand, general, and high theories were already declining across various fields. Yet, the field was virtually founded on classic grand or general social theories of punishment. Despite the outsized attention to classic grand theory, early punishment and society scholars still shared the same concerns as other fields with the various problems surrounding grand theorizing.
Indeed, even in his 1990 book detailing the classic grand social theories as they applied to punishment, Garland (Reference Garland1990) demonstrated the many problems with these grand theories. Moreover, in laying out his view of the next steps for social theories of punishment within the (re)emerging subfield of the sociology of punishment, Garland was generally opposed to the creation of a “general” theory of punishment. He noted that, although his book provided a synthesis of the different classic theories, fixing some of their glaring problems and extending them fruitfully, his own account “does not amount to a general theory of punishment,” nor did he think creating such a theory was a good idea (284). For one, accounts in this style
appear less and less convincing as ways of conceiving social process and historical outcome. They are a legacy of the nineteenth-century scientism which viewed society as a closed, mechanical system and left little room for agency, contingency, and accident in the historical process. In contemporary social thought these global theories and rigid models have been giving way to more open-ended, pragmatic theorizing which seeks to interpret the varieties of social and historical experience rather than search for iron laws and structural necessities. (284)
So strong was this mismatch of outdated approaches to theorizing for the then-current era that Garland (Reference Garland1990, 284) concluded: “[T]he sociology of punishment has no need for a general theory of this kind, and that any attempt to build a single theoretical model of the causes, forms, and consequences of penality would be misconceived.” He went on to explain why it would not work, mainly because that punishment or, rather, “penality” is too complex (284–85). Finally, he noted: “[I]t is only in combination with specific histories, empirical studies, and concrete analysis that any theoretical ‘model’ can be of much use in this field” (285).
In many ways, thirty-plus years later, that is where the subfield went. But in the 1990s and early 2000s, we would argue that punishment scholars—Garland included—still produced big theories.Footnote 15 They emerged and were popularized at the same time that classic grand theories came under attack across the social sciences. However, these earlier big theories of punishment eventually gave way to new theories that rejected the earlier big theories’ aspirations and assumptions as well as any attempt to offer a higher-level account of punishment. It is this dialectic that we analyze.
Finally, it is worth noting that the studies we have highlighted in our discussion are those that we see as the most important, if not always impactful, theoretical contributions to our understanding of penal change. There are other important theoretical contributions that do not weigh in on penal change, focusing instead on other concerns within the punishment and society field. We focus on theories of penal change because these lend themselves best to big theory and follow in the tradition of the grand theories that laid the basis for the field.
Acknowledgments
We thank Jennifer Carlson, David Johnson, Sida Liu, Michelle Phelps, and Michael Walker for their comments on earlier versions of this article. Early on, this project also benefited from feedback from Michael Walker on the nascent project idea and conversations with Jennifer Carlson, Michelle Phelps, and Shauhin Talesh. We also thank the roundtable participants and audience (especially Daniela Tagtachian) where we presented an earlier version of this article at the American Sociological Association in August 2023. We also thank members of the Department of Sociology at the University of Hawai‘i at Mānoa for their comments on a version of the article presented there. The authors have no funds to report, and they declare that there are no conflicts of interest.
Author Biographies
Ashley T. Rubin is an associate professor of sociology at the University of Hawai‘i at Mānoa in the United States and a co-editor of Law & Society Review (atrubin@hawaii.edu).
Alena Kalyce Shalaby is a doctoral student in global studies at the University of California, Santa Barbara in the United States (alenashalaby@ucsb.edu).