A Sociological Theory of Law

Niklas Luhmann, Martin Albrow, Martin Albrow

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135142636
• Edition: 2
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Niklas Luhmann is recognised as a major social theorist, and his treatise on the sociology of law is a classic text. For Luhmann, law provides the framework of the state, lawyers are the main human resource for the state, and legal theory provides the most suitable base from which to theorize on the nature of society. He explores the concept of law in the light of a general theory of social systems, showing the important part law plays in resolving fundamental problems a society may face. He then goes on to discuss in detail how modern 'positive' – as opposed to 'natural' – law comes to fulfil this function. The work as a whole is not only a contribution to legal sociology, but a major work in social theory. With a revised translation, and a new introduction by Martin Albrow.

1 Classical beginnings of the sociology of law

We can only talk of a sociology of law since sociology has come into existence, i.e. only since the second half of the nineteenth century. This is not a purely superficial observation, as it were a terminological truism. Rather, sociology gives scientific interest in law a peculiar stamp which clearly distinguishes it from everything that has been thought in the old European tradition about the relationship between society and law.

That tradition of teaching, the collapse of which at the turn of the eighteenth century to the nineteenth century gave rise to sociology, had conceived of the more concrete relationship between society and law.¹ Within this tradition, law, in the form of human associations, had always existed; it was immanent by its nature and indissolubly woven into other formal aspects of society, with social proximity (friendship) and with relations of rank (domination). It was only thanks to the naturally true pattern of what is right that concrete freedom within political institutions was possible – and not, perhaps the reverse, arbitrary abstract freedom as a problem, for which law had to be created. In the thought of natural law, life together in human society appeared to portray not just an abstract normative ought form with arbitrary content, nor simply the functional indispensability of norms, but also norms with a determinate content which lay claim to seemingly natural origin and truth. Thus traditional thought did not have any misgivings in formulating that society was a legal relation or even a contract² – a formulation which no sociologist appraising the function and indispensability of a legal order dared to repeat.

This is where the distance is displayed. None the less, natural law in its last phase as logical law, and particularly by aid of the category ‘contract’, had already prepared the path for the sociological interpretation of law. The human being becomes an abstract subject, and contract becomes a category in which the social dimension of human life becomes available; contingent in every one of its forms. The contingency of human relations is still thought of in terms of a form of law, but at the same time in an abstract radicalness, on the basis of which any law whatsoever is possible.³ From here there is no return into concrete, legally bound forms of belief, but only the possibility to extend the thesis of contract as the sole reductionist mechanism to society as social system – the path to sociology.

In comparison with natural law the relation between society and law is seen by sociology as similarly indissoluble, but also more abstractly, i.e. with more room for variation. Sociology too can accept the thesis that every society must have a legal order;⁴ not, however, the further thesis that therefore certain legal norms are valid for all societies in the same way. Within the boundaries of the historical and comparative ethnographic horizon, which includes the research of the nineteenth century, normative invariants can hardly be retained and at the most only as abstractions which are devoid of meaning. Law now appears in principle indispensable, but in its execution a contingent social establishment. And it is this contingency, this relativity of choice amongst different possibilities, which is the subject of the sociology of law.

This may appear at first to be a qualification, or a slightly more abstract version of the old European view. However, with this abstraction, the superseding of natural law, the liberation from the handicap of certain generally valid legal norms, and, therefore, a more detached perspective on law have been achieved. It can no longer be concluded that the existence of society is based on the validity of certain norms, rather, law and society must be seen to the full extent as empirically researchable variables, which interact in a certain way. In order to be able to decide, without prejudice, which societies could have which type of law, it is necessary to abandon the premise that all societies are bound to acknowledge a certain type of law. Sociology is, therefore, no longer tied to, nor even authorised to share, the norm orientation of social life itself and to seek the reason for its validity in higher norms and unquestionable principles; because it is in this way that sociology identified, as Emile Durkheim almost ironically remarks, not the reality of morals of certain societies, but only the way that the moralist envisages morals.⁵

This distance from the internal view of law and its moral foundation distinguishes all those endeavours that we can label as classical beginnings of the sociology of law. They can be understood as sociological by this distance and by the measurement of morality from incongruent perspectives. Moreover, they can be supported by the assumption that positive, empirically tested causal knowledge of society and its relation to law is possible. This knowledge is articulated within an historical-evolutionary framework. Evolutionary thought offers the possibility of the relativisation, secularisation and temporalisation of natural law. Evolution is now seen as a causal process, but in its meaning it is still conceived of in terms of moral categories, such as progress. Law is granted a central position in societal development – not in the sense of a driving or even developmental-political planned force – but rather as form and expression of the given condition of society. It is possible to distinguish three common premises of the classical sociology of law, despite all the differences in the individual contributions, which in turn distinguish themselves from the natural law approach: (1) Law as normative structure is distinguished from society as factual life and interrelated action. (Law no longer is society.) (2) Law and society are conceived of as two interdependent variables, whilst their context of variation is interpreted as evolutionary in character, in the nineteenth century mostly as the regular progress of civilisation. (3) Under these preconditions it is possible to establish empirically testable hypotheses about the relation between law and society and these are verifiable by observation of the context of variation.

The theoretical basis for the elaboration of this beginning remained, however, measured by current standards, unclarified in relation to society itself and its development. Thus, one result is that different researchers perceive different aspects of societal and legal development and emphasise them as characteristic features in exaggerated isolation from each other. It is only when we take these very distinct variants together – we choose Marx, Maine, Durkheim, Weber and the not so typical borderline cases of Parsons and Ehrlich – that we can convey an impression of the presuppositions, style and limitations of the classical sociology of law.⁶

The social teaching of Karl Marx reacts to a basic tenet of modern social development: the transition in the primacy of social meaning from politics to economics. He sees in the primacy of economics, by relating economics to the materiality of human needs, an ahistorical-anthropological truth and formulates a theory of natural-legal, dialectical and societal development within this framework. The impetus for development, according to him, originates in the changes of productive forces and relations of production which satisfy material needs, or, in other words, in the social contradictions which accumulate in the course of the development of both production and satisfaction of needs.⁷ In the fixing of such contradictions, by allocating specific unequal opportunities to individuals, law plays a decisive role: it grants and protects property. Property blends the right to enjoy opportunities for satisfying needs with family interests in inheritance and with decision-making positions into combinations which must change with the development of the productive forces. If the whole body of law is designed according to the interests of owners and administered by them, this legal change can only take on the form of a revolution. During the course of societal development, then, the socialisation of property finally becomes possible which separates the satisfaction of needs (distribution) from decisions regarding production, and substitutes rationality for objectivised and interest-oriented (class-oriented) law.

It is possible to read Marxist social and legal teaching from the angle of the dissolution of the compact, subjective, local systems of satisfaction of needs and decision-making processes (although this thought does not appear in official interpretations of Marxism nor the secondary literature that is inspired by it). From this we can draw the appropriate conclusions as well as glean the one-sidedness of the Marxist sociology of law. In the final analysis it is concerned with an increased measure of structurally permissible variability, for which law is held responsible: distribution and the planning of production must, independently from concrete interest links, be mutually varied and thus become rationalised. Accordingly, the purpose is to attain a legal structure which is compatible with the increased complexity and variability of society, and thus with a greater area of choice in problem-solving. Basically the Marxist view cannot understand why the directive functions in the economic process are inheritable by families and must be linked to the collection of fast cars and beautiful women, villas and yachts. This leaves us with the question whether it is only in this repect that law determines the complexity of the social system. Surely not. Here reside the limits of insight of the Marxist sociology of law and, at the same time, the problem which can only be adequately articulated by a sociological theory of society with abstract foundation.

Sir Henry Sumner Maine⁸ had a different aspect of the same problem in mind when he characterised the development of law from the traditional to modern societies as a ‘movement from status to contract’.⁹ The concepts of status and contract are not supposed to identify logical, strictly exclusive institutions of law, but various basic principles in the construction of a legal order and the distribution of rights and duties, which are perceptible from the background of the respective social structures and are determined by them. In societies which are based on the kinship principle and are stratified on the basis of families and tribes, involvement in law depends upon the membership of these societies and their status order. Status decides the legal capacity; it does not give it to everyone, but in a differentiated manner according to certain concretely determined rights and duties and limited freedoms which are distributed through the status differentiation of society. The family-oriented, and later the feudal, structure of society therefore fairly concretely rules the distribution of rights and duties at one and the same time – who, for example, may marry whom, who may hunt, who may start a business, who must serve on foot or on horseback, etc.; and it derives its reality precisely from such distribution.

As time passes, however, societal development of social systems with increased complexity, in particular the increase in the size and interdependence of the economy, forces a stronger mobilisation of legal relations. It forces the dissolution of the compact, traditional, purely local legal structures, and the removal of social structural conditions no longer required for the current distribution of rights and duties. Political domination supersedes the old order of gender and tribes, and is therefore capable of guaranteeing greater freedom and mobility. The ius connubii ac commercii, is extended and finally equated universally with legal capacity itself. The human being becomes a legal being in his abstract person towards the end of the eighteenth century with the dissolution of the feudal order, ‘because he is human, not because he is Jewish, Catholic, Protestant, German, Italian, etc.’¹⁰ Thus the connection of the distribution of rights to a concretely fixed societal structure disappears. The new means of distribution is called the contract. In line with the liberal conception it presupposes only clear types for the facilitation of rapid understanding between strangers, rules against reciprocal damage and calculably functional jurisdiction. Society could then tolerate anything within such a framework.

Our formula of the increase in structurally admissible variability is also suitable for the ‘movement from status to contract’. The relation between societal structure and concrete legal development is facilitated by the interposition of freely variable contractual dispositions according to prevailing conditions. Law is no longer, as it was previously, directly mixed up with the main lines of social differentiation,¹¹ which involves higher risks for the stabilisation of social differentiation and the apparent logic of law. The category of contract emphasises here, in a onesided fashion, and in this respect inadequately, elasticity through decentralised dispositions – again, then, only a part of the problem arising from the adaptation of law to the structural needs of increasingly complex societies.

A generation later this central theme of contract which converts, apparently without any foundation in the societal structure, individual will and need calculations to law, gives rise to a renewed and deeper, and for the first time a real sociological, impetus in the sociology of law. Emile Durkheim directs a pointed polemic at the non-contractual (and therefore social!) bases of contract.¹² The spread of contractual regulations in societies differentiated by the division of labour does not change the fact that law as moral rule is an expression of the ‘solidarity’ of a given society. The form of required solidarity, and therefore also law, is conditioned by the respective form of social differentiation. It changes with the development of society itself. Durkheim sees this development as gradual reconstruction of society from segmental to functional differentiation. Segmental differentiation subdivides society into the same or similar units of insignificant complexity; i.e. families and tribes. Functional differentiation stratifies society by the division of labour into different types of part systems which serve specific functions; this is how the complexity of society increases. In the case of predominantly segmented differentiation, society achieves integration by the shared content of the collective conscience, in the form of moral rules, the breaking of which it reacts to repressively. By functional differentiation the commonality of collective representation is dissolved, and ‘organic’ solidarity takes its place, which facilitates the coherence of different parts, similar to an organism. Law is, then, restructured from repressive to restitutive sanctions which only seek to eliminate damage in order to reconstitute the functionality of the parts, but no longer seek to revenge the injury to the collective conscience. Therefore there is no need for a colère publique, but social differentiation and sufficient specification of component systems are a precondition for limitation to damage and calculation thereof. Durkheim believes he can empirically establish such a reconstruction and, at the same time, by proof of covariation of social structure and law verify their relation – a claim for an empirical sociology of law at the level of the macro-social system.¹³

Since we are receptive to the problems of structurally facilitated complexity, we also see in Durkheim’s sociology of law the central problematic. For Durkheim, the type of system differentiation is decisive, and only secondarily (although closely connected) the shape of law. Arising from the question of how legal offences are processed, the problem of law is encapsulated in a central aspect,¹⁴ but again only treated in a one-sided fashion and therefore inadequately. Restitutive sanctions are more variable, specifically measurable and therefore more adaptable than repressive sanctions, in as far as they are capable of judging every legal offence in terms of its respective consequences; but this gain in adaptability and the permitting of alternatives is only one of many achievements which the law of modern societies has to perform.

The summary of directions which Marx’s, Maine’s and Durkheim’s interest in the sociology of law took, rests upon the unity of a deep, not yet sufficiently articulated, evolutionary problematic. At the same time, it shows that the respective leading theoretical (and not always only theoretical) interest only concerns itself with partial aspects; the need for supplementation is particularly evident when we make comparisons. It is not any different when we look further afield and come upon Max Weber.

If we restrict ourselves at first to the segments relevant to the sociology of law in Weber’s complete works,¹⁵ we arrive at a significant insight in spite of the abundance of historical detail: the question of rationalisation as basic feature of European and, particularly, modern societal development. The ‘disenchantment of the world’, the creation of a more rational worldly condition and particularly, the establishment of a ‘capitalistic’ economy derive their preconditions and consequences from law. Law must be restructured from the primarily material (with a content ethically determined, eudemonic or utilitarian) to the primarily formal (conceptually abstract and precise, optimally practical in the light of experience) qualities.

What is meant by this is not sufficiently apparent from the classificatory concepts of ‘formal’ and ‘material’. Given such categories it is possible to argue for the opposing tendency, which occurs with increasing dismantling of ritualistic formalisms in favour of a materially elastic law, that can adapt itself better to unforeseeable situations. Weber, on the other hand, is thinking of a development which increasingly differentiates and renders independent the structure of legal norms; in other words, one which escapes from fusion with other societal structures and expectations and is made precise in the interest of specific functions. This process leads to elements of personal arbitrariness in legal application (Kadi justice) being shed, as well as bond...