What is the sociology of law
The history of the sociology of law
Table of Contents
1. Object and task of the sociology of law
2. Methods of legal sociology
3. Relationship to Sociology
II. HISTORY OF LEGAL SOCIOLOGY
1. Legal sociology before the 20th century
2. Legal sociology in the 20th century
2.1. Eugen Ehrlich
2.2. Max Weber
2.3. Niklas Luhmann
Since 1950 sociology has been differentiated into so-called hyphen sociologies. A special kind of this is legal sociology, because in contrast to such sociologies, which deal with an objectively delimited section of society (such as art sociology or military sociology), the law extends into all areas of life. Thus, the sociology of law is an ubiquitous part of the social structure.
1. Object and task of the sociology of law
The sociology of law deals with a special class of social phenomena, namely legal phenomena. The word appearance is of fundamental importance because the intention is from the outset to want to stick to the "external picture" without trying to experience the essence of things.
The task of legal sociology is to define all experiences and knowledge accumulated in law and to replace all disruptive influences with one's own knowledge. The importance of the right to everyday practices and legal transactions as well as the extraordinary diversity of these things should be in the foreground. Furthermore, an explanation of these tasks and a definition of laws and their application should be pointed out.
The lawyers ask: How should the judge decide and ask about the law. The legal sociologists, on the other hand, question and want to know why the judges decide this way and not differently. They are not satisfied with the fact that the judgments are based on the existing laws.
But not only the questions are different, but also the methods of answering them. Nevertheless, the methodology of legal sociology is based on that of empirical social research in general sociology.
2. Methods of legal sociology
As an empirical science, the sociology of law has to test its theories against experience. This is done with the help of various survey methods, the most important of which are questioning, observation and document analysis. The goal is to test a theory. As already mentioned, the methods used are similar to those used in sociology. The aim of every empiricism is to test a theory. Usually such theories are already there. Otherwise a problem gives rise to theories. Research questions are derived from this, which are coordinated with the existing sociological knowledge. Only then can the question be formulated more precisely and a hypothesis set up. For the terms used, indicators are sought that enable measurements to be taken at different levels. In the simplest, there are only two characteristics that are measured (dichotomously). If there are several values that cannot be ranked, nominal measurements are taken. If a ranking is possible, ordinal measuring is possible. Most accurate, however, are interval scales, which also indicate the distance between the features.
The next step is to select the methods by which the data will be collected. Once this has been done, data collection can begin. There are a few things to consider, including variability and reliability. This data can then be evaluated using mathematical and statistical methods. The most popular method is observation. Because of its directness and proximity to the field of study, it offers interesting information, especially if this field is not very structured.
3. Relations with sociology
As already indicated, the sociology of law and general sociology are in an exchange relationship - despite their independence.
The methods (e.g. statistics or survey procedures) have been developed in sociological areas and have only been adapted.
A large number of terms from sociology have been adopted. E.g. social coercion, social control, social role or status.
One can therefore say that there is no essential difference between legal sociology and general sociology, since one is only an independent branch of the other.
II. HISTORY OF LEGAL SOCIOLGY
1. Legal sociology before the 20th century
It is difficult to find a starting point for the historical description.
Since legal sociology is a branch of general sociology, it cannot be older than sociology itself.
First and foremost is the development of sociology, which soon devotes special attention to law as a central phenomenon of society, which gives rise to the development of legal sociology as a special sociology.
Auguste Comte is considered to be the founder of sociology. In the sociology of law, the reason cannot simply be combined with a name.
Nevertheless, one could most likely speak of legal sociological discussions in Montesquieu, which were followed by the great social doctrines of the 19th century, which also dealt with the relationship between law and society.
So sociological or legal sociological questions are not achievements of the modern age. Such questions have always been asked.
For example, two thousand years before Karl Marx, Plato emphasized the importance of the economic background to political development, and he also developed a kind of class theory. It contains, among others, a law of political revolutions, according to which a revolution presupposes a split in the ruling class.
Aristotle (Plato's pupil) saw man as a sociable being. He developed a theory of justice that already contains many elements of modern theories of justice. However, at this stage, sociology was part of the general philosophical consideration of society, which centered on the state, law and morality. Sociological questions were still fully embedded in ethical and political demands.
A sociological approach to law can only be found with Montesquieu.
1.2. Montesquieu (1689--1755)
Montesquieu is often cited as the forerunner of legal sociology.
In his book on the spirit of the law ("De l'esprit de lois", 1748) he saw the interdependence of law and social life, which is a main theme of legal sociology. Here you will also find the two decisive aspects that have long shaped the sociological approach: relativism and determinism. It is true that Montesquieu did not deny the ideas of natural law that dominated his time, but insofar as he described and observed concrete legal phenomena, this was done from the standpoint of the fundamental mutability of law in space and time. He called this relativism.
Montesquieu's point of view emerges very clearly when he uses expressions in his chapter headings which stand for social change; For example, "About the origin and the upheaval of inheritance law", "Changing jurisdiction" or "Decay of foundations".
Montesquieu's determinism is even clearer. He recognized that social orders can neither be derived from principles of natural law nor from the purposeful will of the sovereign. Its aim was to relate legal laws to extra-legal facts. He was of the opinion that the law is determined by objective causes, namely by other social phenomena (e.g. forms of government, religion, action), by demographic characteristics (such as the volume of the population) or by physical conditions (e.g. climate).
Opponents of Montesquieu singled out one of these causes, the theory of climatic conditions. They saw a nakedness in the representation of the law as a "product of the rule of blind powers".
Montesquieu explained the existence of social phenomena by relating them to other social or natural conditions.
2. Legal sociology in the 20th century
2.1. Eugen Ehrlich (1862-1922)
Honest is considered by many to be the true founder of legal sociology. This is probably because of his preface to his work "Foundation of the Sociology of Law". In it he sums up: "... the focus of legal development lies in our time, as in all times, neither in legislation, nor in jurisprudence or in jurisprudence, but in society itself. Perhaps in this sentence the Sense of every foundation of a sociology of law included. "
He wants to enen, but pure knowledge that is not about words but about facts "which is the sociology of law.
He wants to show the lawyer, who sees the world of law and legal coercion, the relative insignificance of state law in mind. This is the main theme in Ehrlich's sociology of law.
In addition, one more thought is essential, namely that there is a natural social order that is not based on coercion and that is shaped by the free action of individuals or social associations.
For him, practical jurisprudence is merely a technique of making law available to the special needs of legal life and therefore "something completely different from the science of law".
Therefore the sociology of law is the only science of law because it does not stop at the words, but focuses attention on the facts on which law is based; and because, "like any real science", it seeks to deepen our insight into the essence of things by means of the inductive method, that is, "by observing facts, collecting experiences".
By society, which Ehrlich confronts the state, he does not understand a collection of individuals, but the totality of human associations. The original forms of the associations are the families, the clan and the household. Nowadays, however, clubs, communities or parties predominate.
Originally, law is nothing else than the internal order, which consists of rules that assign everyone their position and tasks in the association. No state courts or penalties are required to enforce these association rules. It is enforced because nobody wants to be excluded and thus lose their position in society.
Ehrlich describes social law as living law and Eugen Ehrlich sees his task as legal sociology in researching this living law.
2.2. Max Weber (1864-1920)
Weber's legal sociology is actually only one chapter of his great work "Economy and Society". He succeeded in working out a delimitation of the law from other social systems of order such as custom or morality. This was a decisive contribution to the independence of legal sociology as a new subject.
"Rather, we want to speak of the legal system everywhere, if the use of any physical or psychological means of coercion is in prospect, which is exercised by a coercive apparatus ...".
With this statement Weber coined the concept of the legal staff. This refers to all those who administer the law, such as judges, public prosecutors or police officers. The legal staff serves to maintain the norms and their sanctions.
Max Weber also designed a material sociology of law. Then the development of law took place from the irrational type of the primitive society with charismatic leaders and Kadi-Justice over the traditional type of the feudal society to the rational type of modern law, Weber blames three main factors: compatriots who oppose class independence strivings for uniform control want to enforce their territory, capitalist interests who want to calculate their chances of winning, and a professionally trained, independent lawyer.
Weber differentiates between four stages of legal development:
"The general development of law and the legal process, broken down into theoretical 'stages of development', leads from the charismatic legal revelation by 'legal prophets' to the empirical creation of law and the finding of law by legal royalties (creation of legal and prejudicial law), on to the enforcement of law by secular empire and theocratic powers and finally to the systematic legal statute and to the professional, on the basis of literary and formal logical training carried out 'administration of justice' by legally educated (specialist lawyers) ... "(Weber 1913, p. 331).
The law passes through various stages of rationality, which are obtained through a combination of the distinctions rational / irrational and formal / material: - formal-irrational: magically conditioned formalism (e.g. obtaining oracles);
- material-irrational: irrationality caused by revelation (Kadi justice, concrete evaluation of the individual case);
- material-rational: theocratic or patrimonial conditioned material and comprehensive purposeful rationality (natural law);
- formal-rational: professional legal, logical rationality and systematics, logical sublimation, deductive rigor (term jurisprudence based on common law; cf. Weber 1913, p. 126).
Weber's types of legitimate validity of an order cannot be fully assigned to these rationality levels. Legitimate validity can be ascribed:
- by virtue of tradition
- by virtue of affective belief
- by virtue of value-rational belief in material supreme principles
- by virtue of the positive statute
For Weber, the climax of Western legal rationality has been reached with conceptual jurisprudence and a formal-logical processing of law, which has to consist of general legal propositions. In his view, moral, material points of view threaten the rationality of law. Such aspects are - according to Weber - asserted precisely by the working class against formal civil law.
Weber explains the development of occidental law primarily with the different political power relations and structures of rule, with the corporate interests of the legal profession and other factors.
This distinguishes it from the major theories of the 19th century.
In the context of his rationalization hypothesis, Weber described the phenomenon of bureaucratization.
Finally, with the ideal-typical distinction and description of traditional, legal and charismatic rule, he laid the foundation of the sociology of domination. With this alone, Weber contributed a lot to the sociology of law.
His greatest achievement is probably the fact that he was the first to grasp the separation of law from social morality and the economy.
Max Weber's work is of great importance for the sociology of law. His analyzes are increasingly displacing Marxist ideas, which were the most important source of ideas for legal sociology in the 1960s and 1970s.
2.3. Niklas Luhmann (born 1927)
Niklas Luhmann is of the opinion that all human coexistence is directly or indirectly shaped by law.
Law is a social fact. No area of life can maintain a lasting social order without law. He sees today's legal system as a "structure of high structured complexity". Luhmann understands complexity as the totality of the possibilities of experience and action that are connected with a context of meaning.
The law is given a central position in social development. The sociology of law differs from natural law in three points:
1. The law as a normative structure is differentiated from society as a factual context of life and action. (The law is no longer society.)
2. Law and society are understood as two interdependent variables, and their interrelationships are interpreted evolutionarily, in the 19th century mostly as the regular progress of civilization.
3. Under these conditions, empirically verifiable hypotheses can be drawn up about the relationship between law and society and verified by observing the context of variation.
The theoretical basis for the elaboration of this approach, however, related to society and its development, remained unclear.
Only a compilation of these very different variants gives an impression of the prerequisites for thinking, the style and the limits of legal sociology.
Luhmann describes the process of differentiating society and its rights in three stages. He differentiates between archaic law, the law of pre-modern civilizations and the positive law of modern society.
The starting point for understanding archaic law lies in the structure of society. Luhmann also understands archaic society to be "primitive"
Companies that have the corresponding characteristics. These societies are primarily based on the principle of kinship.
That means; All social functions initially find their natural basis, social support and legitimation in the family closeness.
If the kinship group grows beyond the maximum size of a family, then there is a segmental differentiation, especially the formation of other families, which are held together in a union by common descent. For this structural principle, it is "a matter of course - one is related - and the lack of alternatives - one is related in a certain way, near or far." Luhmann goes on to say that archaic societies are found stabilized at a level of relatively low complexity. The stability is due to the lack of alternatives. Problems and problem solutions are coordinated, which guarantees a high level of instability with a high level of external hazard.
Crises can arise when a higher level of complexity develops in individual functional areas (e.g. through political tyranny or an increase in economic potential). Then the stability of society is at risk.
While the large number of different forms of relatively simple legal systems made a comprehensive explanation difficult, the problem now lies in the internal complexity of the law of the individual high cultures. Only a few societies, according to Luhmann, achieve a level of development for which the characteristics of a high culture in the field of law apply.
High cultures form in societies with incomplete functional differentiation.
Luhmann is of the opinion that there is a "relative independence of legal development, a limited conceptual learning in law and even a transfer of individual legal institutions or principles of argumentation from society to society." The legal order of these highly cultural societies is determined by their social structures (within the limits of their ability to abstract, in the potential for complexity, etc.).
By expanding the complexity of law, its specification and abstraction and through selective differentiations, the high cultures give the opportunity "to formulate the principle of law as an abstract criterion and to contrast it with the existing law as a yardstick. In commemoration of the just and just, the principle of law takes on a generalized moral principle Shape. "
Luhmann finds the decisive evolutionary achievement of the modern age in the positivity of law. "The right becomes conscious as contingent, as valid and at the same time as changeable at any time."
Independent proceedings determine what law is and the results of this process (laws, administrative acts, judgments) are accepted as legitimate and binding. That this works like this, says Luhmann, is almost a miracle. The topics of a present-day sociology of law are almost predetermined by the functions and subsequent problems of this development.
People become capable of acting when expectations reduce the complexity of the possibilities of experiencing and acting. The selection performance of normative expectations is particularly high because the selection made from other options is not problematized even in the case of disappointment. This does not mean, however, that normative structures cannot be problematized under any circumstances without forfeiting their function. Systems theory has always admitted that structures are only temporarily consolidated, but are variable in the long term. Luhmann, on the other hand, emphasizes the possibility that structures in a system can be treated simultaneously as invariant and as variable, provided that the system is sufficiently differentiated. The system can provide learning and non-learning for the same structures at the same time.
This stage is reached for the law through positivity. The law has become reflexive. It is set and applies by virtue of a decision. In this respect, law is variable. Statutory law is normatively maintained up to a change that is possible at any time and is thus at the same time invariable.
This results in an enormous increase in complexity. It becomes possible to have different rights over time. The factual complexity of the law grows at the same time as the temporal complexity.
According to Luhmann, law is becoming trivial. Old and some new topics of legal society are formulated by Luhmann as prerequisites, functions or consequential problems of the positiveization of the law.
The separation of positive law from other norms such as custom and morality is secured by physical violence. Luhmann points to three advantages of physical enforceability over other forms of power. Physical means of coercion are more versatile than other sources of power. They are largely indifferent to the point in time, situation, subject and theme of the action to be motivated. The limit at which the person concerned no longer submits but defends himself is very high and can be easily assessed. Although physical power requires an apparatus of force (military, police), it is independent of all other system structures such as status, order or values. From this it follows that with the help of power the limits of legal regulation of social facts are drawn very far.
The separation of the law from custom and morality with the help of physical violence ensures that the law can be used universally.
In summary, one can say that the sociology of law emerged from general sociology.
The sociology of law serves to evaluate experiences and knowledge based on the law. Legal sociology places particular importance on questioning, for example, judgments, laws or administrative acts. The methods used are similar to those of sociology. Thus, legal sociology and general sociology are in an exchange relationship - despite their independence.
Since a starting point for the historical description cannot be clearly defined, I started my remarks on the development of legal sociology with Montesquieu, since he was the first to develop legal sociological theories. In his work "De l'esprit de lois" he dealt with the mutual dependence of law and social life. Montesquieu's main concepts were relativism and determinism. Eugen Ehrlich is often mentioned as the founder of legal sociology. His focus of legal development was on society itself. Ehrlich coined the concept of living law.
Max Weber succeeded in delimiting the law from other social systems of order, which was a decisive step towards the independence of legal sociology. Niklas Luhmann is considered a modern representative of legal sociology. He sees the law as a social fact and is of the opinion that an area of life without law cannot maintain a lasting social order. One of his most important concepts was that of positive law.
From the multitude of classics of legal sociology and their theories, I have selected some of the most important representatives and tried to put their main ideas together.
Carbonnier, Jean: Legal sociology. Series of publications on legal sociology and legal research; Vol. 31; Duncker & Humblot; Berlin 1974
R ö hl, Klaus F.: Legal sociology. A textbook. Carl Heymanns Verlag KG; Cologne; Berlin, Bonn, Munich 1987
Luhmann, Niklas: Legal sociology. West German publishing house; Opladen 1987; 3rd ed.
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