Law as a sociological phenomenon (original) (raw)
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Through its function, law provides normative prescriptions for human behaviour, i.e. it prohibits certain types of behaviour and permits others in a given situation. The fundamental task of jurisprudence is therefore to clarify the meaning of the interrelationships between normative prescriptions and thus to ensure that there are no contradictions in meaning between the many thousands and tens of thousands of legal norms. Only in this way is it possible that the legal rules to be followed in everyday life fulfil their function and that legal certainty is not endangered. Substantive jurisprudence analyses and develops the totality of legal concepts that ensure the internal conceptual coherence of a field of law and constantly monitors the coherence of the legal norms required for specific life situations. From now on, depending on the different legal concepts to varying degrees, the consistency of the specific legal norms and legal concepts with the general principles of justice is also included in the consideration. This approach thus moves in the dimension of normative conceptual coherence. On a broader level, the philosopher of law does the same when, apart from analysing substantive law, he deals with the content of the principles of justice and their relationship to each other, and from this establishes requirements for the conditions of a just legal order. However, law, although it fulfils its function in a normative dimension, is a social phenomenon like other fields of activity that fulfil a social function, e.g. the economy, art, science, politics, etc., and any legal phenomenon can be studied from the point of view of facticity, just like other social phenomena. This is the essence of the sociological approach to law, which can be formulated in contrast to the approach of theoretical jurisprudence or legal philosophy as a field of analysis of social facticity and causality or effects. For example, while the substantive law of civil law examines a legal regulation on a pledge or surety from the point of view of how these contractual securities fit into the framework of existing contract law as a whole, the sociological approach to law asks how often pledges or sureties are used as contractual securities in everyday contractual practice, from the point of view of the absence of contradictions of meaning. Or which social interests and which social disadvantages have favoured the emergence of this form of pledge and surety in everyday contractual practice, and which social interests would be served by alternative regulations in this area? In the sociology of law, one therefore moves from the normative dimension to the factual dimension, to the dimension of conflicts of interest, social causes and effects, when analysing legal norms and legal phenomena. Looking at sociological studies and the various lines of research in the sociology of law in this approach, one can distinguish between a narrower and a broader understanding of the sociology of law. The sociology of law in the narrower sense still focuses on legal norms like the thematic legal sciences, and it is no coincidence that the sociology of law developed historically in the last decades of the 19th century. The sociology of law in the narrower sense, like the theoretical legal sciences, is concerned with legal norms and legal provisions, but with their actual consistency rather than with normative-conceptual coherence and possible logical contradictions. Or does it ask which social interests and political forces have shaped the legal norms under study and which political forces serve the dominance of which political forces in social struggles and which social groups are subordinated and disadvantaged in power by the legal norms under study?
Legal theory and sociological facts
Law and Philosophy, 1998
The authors investigate MacCormick and Weinberger's claim that the Institutional Theory of Law provides a conceptual framework for the study of legal phenomena from a socio-legal point of view. They evaluate this claim by confronting both the Institutional Theory of Law and Weinberger's theory of action with two approaches in socio-legal theory, i.e. the instrumentalist and the constitutive approach. The conclusion is that the Institutional Theory of Law lends itself to empirical research from an instrumentalist perspective, for both place the concept 'institution' in the context of law. Weinberger's theory of action may provide a basis for empirical research from a constitutive perspective. The authors make some suggestions for refinement of Weinberger's theory of action in order that the relation between institutions and action can be labeled dynamic.
Discover the Legal Concept in the Sociological Study
Substantive Justice International Journal of Law
This paper specifically examines the concept of law in a sociological study to find out how the law develops and how the law implemented or enforced as a unity in the legal system. This paper-based on the normative juridical method, using legal materials collected and analyzed using qualitative methods. The results show that the sociological of law studies as part of the activities of drafting legal products and the preparation of legal products is not just a juridical process. The processes of transformation from social desires into laws and regulations both in political and sociological contexts do not only occur during the formation of a regulation, continue and continually correct the legal products that produced. Law enforcement related to the sociology of law that observes the reality of how the law is working on different social structures, this scientific approach is expected to not only provide advice related to the development of legal science alone, but also must be applied, but unfortunately in the development of this science itself is not able to develop dynamically because observations that are not equally displayed in providing input to the development of legal protection in Indonesia.
Sociology of Law and the Problem of Normative Closure of Law
Sociological Discourse, 2014
Sociology of law, as well as other special sociological disciplines dealing with social institutions, is burdened by the epistemological - methodological difficulties in their studies (sociological studies of law). Th e difficulties are caused by the differentiation of the institutions in the terms of building self- identity and autonomy and they appear in the form of institutional resistance and discursive exclusion. All the problems can be identified as the effect of the operational closure of the institutions and production of the self-description. In the case of law we discuss the normative closure of the discourse as an expression of the institutional resistance and discursive expropriation. Th e focus of the work are the epistemological and methodological diffi culties as a problem for the Sociology of Law, and the problem of the normative closing of the legal discourse as the cause. Th e manifestation of the epistemological - methodological difficulties can be seen in several instances : a) the institutional reactivity of rights as a “social problem” , b) the construction of the identity rights through the establishment of diff erences, c) determining the sociology of law as an external perspective on law and d) the normative closing of the legal discourse through the effects of conceptual and discursive expropriation. When asked how the sociology of law can deal with these difficulties in principle corresponds in the end of this work.
Why Must Legal Ideas Be Interpreted Sociologically?
Journal of Law and Society, 1998
Sociology of law and socio-legal studies are sometimes declared unable to give insight into the nature of legal ideas or to clarify questions about legal doctrine. The idea that law has its own 'truth'-its own way of seeing the world-has been used to deny that sociological perspectives have any special claim to provide understanding of law as doctrine. This paper tries to specify what sociological understanding of legal ideas entails. It argues that such an understanding is not merely useful but necessary for legal studies. Legal scholarship entails sociological understanding of law. The two are inseparable. I. SOCIOLOGY OF LAW AND LEGAL IDEAS A modern myth about sociological study of law survived until quite recently, encouraged from within legal philosophy and by some legal sociologists themselves. According to this myth an inevitable division of labour governed legal inquiry. While lawyers and jurists analysed law as doctrine-norms, rules, principles, concepts and the modes of their interpretation and validation, sociologists were concerned with a fundamentally different study: that of behaviour, its causes and consequences. Hence, the legal sociologist's task was solely to examine behaviour in legal contexts. 1 Sociology could contribute
Law and Human Nature: The Social-Adaptive Function of the Normative Behavior
The objective of this article is to offer a critical (re)interpretation of genesis and evolution, object and purpose, as well as useful qualified methods for interpreting, justifying and applying modern practical law, all with the intention of putting philosophic thought and contemporary formal theory of reason at the service of hermeutics and juridical argumentation. Law is no more-no less-than an social-adaptive strategy, evermore complex, but always noticeably deficient, used to articulate argumentatively-in fact, not always with justicethrough the virtue of prudence, elementary relational social ties through which men construct approved styles of interaction and social structure, i.e., to organize and ethically improve political and social life in such a way as to permit that no free citizen-rich or poor-should fear the arbitrary interference of other social actors in his life plan.