Sociology of Law - Intellectual Origins

Intellectual Origins

The roots of the sociology of law can be traced back to the works of sociologists and jurists of the turn of the previous century. The relationship between law and society was sociologically explored in the seminal works of both Max Weber and Émile Durkheim. The writings on law by these classical sociologists are foundational to the entire sociology of law today. A number of other scholars, mainly jurists, also employed social scientific theories and methods in an attempt to develop sociological theories of law. Notably among these were Leon Petrazycki, Eugen Ehrlich and Georges Gurvitch.

For Max Weber, a so-called "legal rational form" as a type of domination within society, is not attributable to people but to abstract norms. He understood the body of coherent and calculable law in terms of a rational-legal authority. Such coherent and calculable law formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism. Central to the development of modern law is the formal rationalisation of law on the basis of general procedures that are applied equally and fairly to all. Modern rationalised law is also codified and impersonal in its application to specific cases. In general, Weber's standpoint can be described as an external approach to law that studies the empirical characteristics of law, as opposed to the internal perspective of the legal sciences and the moral approach of the philosophy of law.

Émile Durkheim wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions. Over time, law has undergone a transformation from repressive law to restitutive law. Restitutive law operates in societies in which there is a high degree of individual variation and emphasis on personal rights and responsibilities. For Durkheim, law is an indicator of the mode of integration of a society, which can be mechanical, among identical parts, or organic, among differentiated parts such as in industrialized societies. Durkheim also argued that a sociology of law should be developed alongside, and in close connection with, a sociology of morals, studying the development of value systems reflected in law.

In Fundamental Principles of the Sociology of Law, Eugen Ehrlich developed a sociological approach to the study of law by focusing on how social networks and groups organized social life. He explored the relationship between law and general social norms and distinguished between "positive law," consisting of the compulsive norms of state requiring official enforcement, and "living law," consisting of the rules of conduct that people in fact obeyed and which dominated social life. The latter emerged spontaneously as people interacted with each other to form social associations.

The center of gravity of legal development therefore from time immemorial has not lain in the activity of the state, but in society itself, and must be sought there at the present time".

— Eugen Ehrlich, Fundamental Principles of the Sociology of Law

This was subjected to criticism by the advocates of legal positivism such as jurist Hans Kelsen for its distinction between "law created by the state and law produced by the organisational imperatives of non-state social associations". According to Kelsen, Ehrlich had confused Sein ("is") and Sollen ("ought"). However, some argued that Ehrlich was distinguishing between positive (or state) law, which lawyers learn and apply, and other forms of 'law', what Ehrlich called "living law", that regulate everyday life, generally preventing conflicts from reaching lawyers and courts.

Leon Petrazycki distinguished between forms of "official law," supported by the state, and "intuitive law," consisting of legal experiences that, in turn, consist of a complex of psychic processes in the mind of the individual with no reference to outside authorities. Petrazycki's work addressed sociological problems and his method was empirical, since he maintained that one could gain knowledge of objects or relationships only by observation. However, he couched his theory in the language of cognitive psychology and moral philosophy rather than sociology. Consequently, his contribution to the development of sociology of law remains largely unrecognized. For example, Petrazycki's "intuitive law" influenced not only the development of Georges Gurvitch's concept of "social law" (see below), which in turn has left its mark on socio-legal theorising, but also the work of later socio-legal scholars. Among those who were directly inspired by Petrazycki's work is the Polish legal sociologist Adam Podgórecki.

Theodor Geiger developed a close-knit analysis of the Marxist theory of law. He highlighted how law becomes a "factor in social transformation in democratic societies of the kind that are governed by the consent expressed by universal suffrage of the population practised at regular intervals". Geiger went on to develop the salient characteristics of his antimetaphysical thinking, until he exceeded it with practical nihilism. Geiger's nihilism of values paved the way for a form of legal nihilism, which encourages the construction of a sober democracy "that is capable of raising conflict to the intellectual level and of anaesthetising feelings, as it is aware of its own inability to make any proclamation of value, ethics or policy about the nature of truth".

Georges Gurvitch was interested in the fusion of simultaneous manifestation of law in various forms and at various levels of social interaction. His aim was to devise the concept of "social law" as a law of integration and cooperation. Gurvitch's social law was an integral part of his general sociology. "It is also one of the early sociological contributions to the theory of legal pluralism, since it challenged all conceptions of law based on a single source of legal, political, or moral authority".