Social Theory of Law

Week One Introduction: Comparison of middle-range and grand

theories of law
Natural Law

The predominant way of thinking about law in medieval and early modern
times. Often thought of as the predecessor of legal positivism.
Assumes a natural order in society
A hierarchical order with the deity at the top. The divine order is also the
basis for legal order.
Natural Law isnt dead but resurfaces itself in different ways.

The Civil War (1642-1651)

Monarchy overthrown, beheading of King Charles I, the replacement of the

English monarchy with, at first the Commonwealth of England and then
the Protectorate under Oliver Cromwells personal rule.
Monarchy returned but in a constitutional form. The wars established the
precedent that an English monarch cannot govern without parliaments
consent. Constitutional supremacy was established (although the idea of
parliament as the ruling power of England was legally established as part
of the Glorious Revolution in 1688).
The two principles of constitutional law (as defined by Dicey) were
established: parliamentary sovereignty and the rule of law. These
principles took over after the civil war.

Niklas Luhmann A Sociological Theory of Law (2014)

Luhmann dismissed Parsons theory, developing a rival theory of his own.
Like Parsons, Luhmann is an advocate of grand theory. Luhmanns work
aims to address any aspect of social life within a universal theoretical
framework.
The core element of Luhmanns theory is communication. Social systems
are systems of communication and society is the most encompassing
social system.
Natural Law

posits that law is not just normative oughts with arbitrary content
not due to the functional indispensability of norms
holds determinate content which lay claim to seemingly natural origins
and truth

Whereas sociologists tend to concentrate on the function and indispensability of

legal order. Sociological can too accept the thesis that every society must have a
legal order, but not that there must be certain legal norms that are valid or all
societies in the same way (which natural law posits).
Sociologists see law as in principle indispensable but in its execution a
contingent social establishment.

Marx: Law grants and protects property through the allocation of specific
unequal opportunities
Henry Sumner Maine: characterised the development of law from traditional to
modern society as a movement from status to contract
Middle Range Theory
A sociological theory to answer older forms of social theory.
Introduced by Robert K Merton to overcome issues with Talcott Parsons
theory of systems.
Aimed at integrating theory and empirical research.
Currently the dominant approach to sociological theory construction
especially in the United States.
Middle Range theory starts with an empirical phenomenon (as opposed to
a broad abstract entity like the social system) and abstracts from it to
create general statements that can be verified by data.
This approach stands in contrast to the earlier grand theorising of social
theory, such as functionalism and many conflict theories.
Merton in Social Theory and Social Structure: Sociological theory, if it is
to advance significantly, must proceed on these interconnected planes. 1.
By developing special theories from which to derive hypotheses that can
be empirically investigated and 2. By evolving a progressively more
general conceptual scheme, that is adequate to consolidate groups of
theories.
The term middle rage theory does not refer to a specific theory but rather
an approach to theory construction.
Merton agreed with Parsons that a narrow empiricism constituting entirely
of simple statistical or observational regularities cannot arrive at a
successful theory. He was directly opposed to the abstract theorising of
scholars who are engaged in the attempt to construct a total theoretical
system covering all aspects of social life. Sociologists should concentrate
on measurable aspects of social reality that can be separated as separate
social phenomena rather than attempting to explain the entire social
world.
Miller & Sarat: Grievances, Claims and Disputes: Assessing the
Adversary Culture (1980-1)
Dispute processing the function of law is to solve disputes
Naming, blaming and claiming process
Third parties can be involved conciliators, mediators, arbitrators.
Conciliation a conciliator assists a person to communicate so that the
dispute ends in agreement between the parties.
Mediation stronger form of intervention. Proposals that can be rejected
by the parties.
Arbitration third party intervention when the award is binding (proposals
cannot be rejected by the parties).

Week 2: Max Weber Legal rationality

Weber The Economy and Social Norms in Economy and Society (1978)

 Legal and sociological approaches are very different. They deal with
entirely different problems.
One exists in the realm of the ought while the other deals with the world
of the is
The term guaranteed law shall be understood to mean that there exists a
coercive apparatus that is there are one or more persons whose special
task it is to hold themselves ready to apply specially means of coercion
(legal coercion) for the purpose of norm enforcement.
Law without qualification = norms which are directly guaranteed by legal
coercion (when an action has legal consequences, the norm undergoes
infringement of the primary norm).
In our terminology, law, included guaranteed law is not characterised by
violence or even less by that modern technique of effectuating claims of
private law through bringing suit in a court followed by coercive
execution of the judgement obtained.
Sociologically, the question of whether or not guaranteed law exists in
such a situation depends on the availability of an organised coercive
apparatus for the nonviolent exercise of legal coercion. This apparatus
must also possess such power that there is in fact a significant probability
that the norm will be respected because of the possibility of recourse to
such legal coercion.

Jrgen Habermas and Discourse Theory of Law

The early development of Habermass interest in the public sphere
and reason
Born outside Dusseldorf in 1929, Habermas came of age in post-war Germany.
The Nuremberg Trials were a key formulative moment that brought home to him
the depth of Germanys moral and political failure under National Socialism. The
experience was later enforced, when, as a graduate student interested in
Heideggers existentialism, he read the latters reissued Introduction to
Metaphysics, in which Heidegger had retained an allusion to the inner truth and
greatness of National Socialism. When Habermas publically called for an
explanation from Heidegger, the latters silence confirmed Habermass
conviction that German philosophical tradition had failed in its moment of
reckoning, providing intellectuals with the resources neither to understand nor to
criticise National Socialism. This negative experience of the relation between
philosophy and politics subsequently motivated his search for conceptual
resources rom Anglo-American thought, particularly its pragmatic and
democratic traditions. In moving outside the German tradition, Habermas joined
a number of young post-war intellectuals such as Karl-Otto Apel.
Habermas completed his dissertation in 1954, at the University of Bonn, writing
on the conflict between the absolute and history in Schellings thought. He first
gained serious public attention, at least in Germany, with the 1962 publication of
his habilitation, Structural Transformation of the Public Sphere, a detailed social
history of the development of the bourgeois public sphere from its origins in the
18th century salons up to its transformations though the influence of capital
driven mass media. In his description of the salons we clearly see his interest in
a communicative ideal that later would provide the core normative standards for

his moral-political theory: the idea of inclusive critical discussion, free of social
and economic pressures, in which interlocutors treat each other as equals in a
cooperative attempt to reach an understanding on matters of common concern.

Discourse theory
Habermas theory of communicative action rests on the idea that social order
ultimately depends on the capacity of actors to recognise the intersubjective
validity of the different claims on which social cooperation depends. In
conceiving cooperation in relation to validity claims, Habermas highlights its
rational and cognitive character: to recognise validity of such claims is to
presume that good reasons could be given to justify them in the face of criticism.
Theory of communicative action thus points and depends on an account of such
justification that is, on a theory of argumentation or discourse, which Habermas
calls the reflective form of communicative action.
Habermas proposes a multi-dimensional conception of reason that expresses
itself in different forms of cognitive validity: not only un truth claims about the
empirical world, but also in rightness claims about the kind of treatment we owe
each other as persons, authenticity claims about the good life, technicalpragmatic claims about the means suitable to different goals, and so on. As he
acknowledges, the surface-grammar of speech does not suffice to establish this
range of validity types. Rather, to ground the multi-dimensional system of
validity claims, one must supplement semantic analysis with a pragmatic
analysis of the different sorts of argumentative discourse the different logics of
argumentation through which each type can be intersubjectively justified. Thus
a type of validity claim counts as distinct from other types only if one can
establish that its discursive justification involves features that distinguish it from
other types of justification. Whether or not his pragmatic theory of meaning
succeeds, the discursive analysis of validity illuminates important differences in
the argumentative demands that come with different types of justifiable claims.
To see how Habermas identifies these different features, it is first necessary to
understand the general structures of argumentation.
The Pragmatic Analysis of Argumentation in General Habermas discourse theory
assumes that the specific type of validity claim one aims to justify the cognitive
goal or topic of argumentation determines the specific argumentative practices
appropriate for such justification. Discourse theory thus calls for a pragmatic
analysis of argumentation as a social practice. Such analysis aims to reconstruct
the normative presuppositions that structure the discourse of competent
arguers. To get at these presupositions, one cannot simply describe
argumentation as it empricially occurs. One must adopt the performative
attitude of a participant and articulate the shared, though often tacit, ideals and
rules that provide the basis for regarding some arguments as better than others.

Habermas: Between Facts and Norms (1996)

Seminar Notes

Habermas was writing during the Enlightenment era a period of

rationalisation
In Structural Transformation of the Public Sphere explains 18th century
England saw the emergence of a new public sphere, which mediates
between society in state, in which the public organises itself as the bearer

1.
2.
3.
4.

of public opinion. It links to the growth of an urban culture, as the new

arena of public life, e.g. coffee shops, to a new infrasturcture for social
communication. New infrastructure for social communications (e.g. the
press), improved transportation, increasing reading public, and centres of
sociability like coffee shops and taverns.
Distinct from home life, distinct from the church, and distinct form
government there arose a place for people to gather and talk about life.
Habermas calls this the public sphere, where ideas are examined, talked
about and reasoned over.
Habermas favoured democracy (rule by the people). Citizens perform
through elections. But Habermas thinks there should be more forms of
participation and more ways for citizens to participate in legal affairs. This
is why he loved the British civil society so much because of the direct
participation in democracy.
It is clear to Habermas that the logic of natural sciences is not the same
logic that applies to the human sciences. Society and culture are domains
structured around symbols: symbols require interpretation. Any
methodology that systematically neglects the interpretative scheme
through which social action occurs is doomed to failure.
Habermas argues that anyone that uses languages can justify four claims
to validity.
His book, Theory of communicative action he criticises modern societies
turn on the explanation of the relationship between two different
theoretical terms: a micro-theory of rationality based on communicative
coordination and a macro-theory of the systematic integration of modern
societies through such mechanisms as the market. He aims to combine
the legal theory and sociology of law combining the theoretical terms
and micro theory of rationality of law.
Said we should distinguish from the Greek philosophy of Aristotle and the
idea of polis (community). In Aristotlean theory, we develop argues using
practical reason. He said that this model doesnt fit modern society, and
buys into the ideas of Lummann, that modern society is functionally
differentiated into function systems of communications.
Habermas insists that communication is based on language. Habermass
encounter with speech act theory proved to be particularly decisive for
this project. In speech act theory, he finds the basis for a conception of
communicative competence (on the model of Chomskys linguistic
competence). With the turn to language and reconstructive science,
Habermas undermines both of the traditional Kantian roles for philosophy.
In Habermass view, philosophy must fully engage in a fully cooperative
relationship with the social sciences and the empirical disciplines in
general.
In order for the discourse to be successful, conditions have to be met.
Participants must be free and equal
No one capable of making a relevant contribution should be excluded.
They are internally freak to speak their honest opinion with deception or
self-deception.
There are no sources of coercion. The best argument wins.

If these conditions are met the consensus can be founded in government. These
conditions are counterfactual in the sense that actual discourses can rarely

realise and can never empirically certify full inclusion, non-coercion and
equality.

Luhmann: Quod Omnis Tangit: Remarks on Harbermass Legal

Theory

Luhmann refers to procedural norms. Luhmann argues that under only

very limited circumstances can Habermas theory where everyone
collaboratively contributes to democracy can work.
Luhmann asks for evidence for the fact that modernity is in a crisis of
legitimacy.
Luhmann gets nasty when he says that there is little evidence of a crisis of
legitimacy, so who does have a problem with legitimacy? Maybe its just
you that has a problem with legitimation.
The more serious argument that Luhmann makes relates to the fact that
Habermas work is full of irony. Habermas is too close to the problems that
he talks about. He has no perspective on life because he has this utopian
view that everything can turn out well, when the reality is that isnt the
case.

Term Two
Natural Law
Philosophical Basis of Natural Law Theory
Sociological Critique of Natural Law Theory

Natural law God is understood as a law-giver. God gives order to nature

through the laws of nature, and humans likewise can give laws to their
societies. What is the relationship between the divine law and human law?
Natural Law is about how these two connect human law is a micro
version of divine law.
Nomos Greek word for law is seen as something radically different from
physis. Natural law presumes that there is some law-like character to not
only the human realm but to nature as well, and that all of this can be
codified. This theory of law rests on codification.
As Europe becomes secularised in the modern period, natural law theory
starts to lose influence. The first way this happened was with the
Reformation people started to derive law from other sources.
Jacques Maritain modern day follower of Thomas Aquinas tries to bring
the natural law tradition relevant and up to date even to secular law.