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Faisal Chaudhry - One of the best experts on this subject based on the ideXlab platform.

  • the promise and paradox of max weber s Legal Sociology the categories of Legal thought as types of meaningful action and the persistence of the problem of judicial legislation
    Social Science Research Network, 2011
    Co-Authors: Faisal Chaudhry
    Abstract:

    Unsurpassed in its ambition and historical scope, Max Weber‘s Legal Sociology centers around the four ― categories of Legal thought‖ that follow from his distinction between formal and substantive modes of rationality and irrationality in the conduct of lawfinding and lawmaking activity. At the same time, Weber‘s general Sociology is built around four ideal types of possible meaningful conduct by individual actors, ranging from the instrumentally rational to the affective. Despite its visibility, the lack of meaningful connection Weber makes between these two categorical schemes has never adequately been remedied or even explained by his inheritors. This article seeks to do both by arguing that a clearer perspective can be gained on Weber‘s Sociology of law by reconstructing his categories of Legal thought in terms of his ideal types of meaningful action. Considered, instead, as ideal types of Legal action by juristic actors in the course of undertaking lawmaking and lawfinding activity, Weber‘s categories of Legal thought not only are rendered more intelligible but also more powerful in scope. For viewed in this way, Weber‘s choice of conceptually segregating the categories of Legal thought from his general Sociology of meaningful action is revealed as a precocious, even if ultimately unsuccessful, tactic for solving the problem of judicial legislation. In this way, Weber‘s Legal scholarship was not just sociological but driven by much of the same concern that continues to preoccupy scholars of Legal theory and jurisprudence into our own day. Therefore, the limitations of his solution are not simply of historical interest but vitally relevant to understanding the ongoing difficulties that have plagued our own contemporary attempts at elaborating an adequate philosophy of Legal reason.

Reza Banakar - One of the best experts on this subject based on the ideXlab platform.

  • normativity in Legal Sociology methodological reflections on law and regulation in late modernity
    2014
    Co-Authors: Reza Banakar
    Abstract:

    The field of socio-Legal research has encountered three fundamental challenges over the last three decades – it has been criticized for paying insufficient attention to Legal doctrine, for failing to develop a sound theoretical foundation and for not keeping pace with the effects of the increasing globalization and internationalization of law, state and society. This book examines these three challenges from a methodological standpoint. It addresses the first two by demonstrating that Legal Sociology has much to say about justice as a kind of social experience and has always engaged theoretically with forms of normativity, albeit on its own empirical terms rather than on Legal theory’s analytical terms. The book then explores the third challenge, a result of the changing nature of society, by highlighting the move from the industrial relations of early modernity to the post-industrial conditions of late modernity, an age dominated by information technology. It poses the question whether socio-Legal research has sufficiently reassessed its own theoretical premises regarding the relationship between law, state and society, so as to grasp the new social and cultural forms of organization specific to the twenty-first century’s global societies. (Less)

  • can Legal Sociology account for the normativity of law
    Social and Legal Norms; pp 15-38 (2013), 2013
    Co-Authors: Reza Banakar
    Abstract:

    This paper challenges the assumption that Legal Sociology should apply itself to the external or factual properties of the law and leave the internal and normative aspects of Legal phenomena to doctrinal scholars and moral philosophers. It argues that Legal Sociology explores the normative contexts of the law and other social systems, but being restricted by its “scientific” mode of expression it describes and analyses them in sociological rather than moral terms. Legal Sociology is, and should be seen as, a different language game than moral and Legal philosophy, and its treatment of normativity should be understood on its own terms. The assertion that Legal Sociology should limit its scope of analysis to the study of the empirical aspects of law and leave the study of law’s normative dimensions to other branches of Legal studies is itself a normative supposition and part of the competing discourses which constitute the field of Legal research. These discourses aim at demarcating the disciplinary boundaries between various epistemic approaches to the study of law and creating disciplinary identities rather than exploring the methodological scope of socio-Legal research. Part One starts by briefly considering the relationship between norms and normativity, arguing that normativity is generated by system as well as lifeworld and is not necessarily reducible to the effects or functions of individual norms. Part Two develops this point by making a case for justice as law’s source of normativity par excellence. It maintains that although the relationship between law and justice is often discussed in terms of norms, the normativity that justice exercises on law is dependent on the broader context of the Legal system, which is defined differently by different theories. Part Three draws attention to the methodological constraints of socio-Legal research, according to which social scientific studies of law should apply themselves to the external empirical or factual properties of the relationship between law and society and leave the internal and normative matters to doctrinal scholars and moral philosophers, respectively. The paper concludes by arguing that the sphere of socio-Legal research is not, and cannot be, limited to an examination of the factual characteristics of law. Moreover, the assertion that Legal Sociology should apply itself to the study of the empirical aspects of law and leave the normative dimensions to other Legal scholars is a normative stance and part of on-going attempts at demarcating the disciplinary boundaries of various branches of Legal studies. (Less)

  • who needs the classics on the relevance of classical Legal Sociology for the study of current social and Legal problems
    Retssociologi; (2013), 2013
    Co-Authors: Reza Banakar
    Abstract:

    What do we gain from labeling certain norms of social organization law? This question provides the backdrop against which this chapter will examine the works of Leon Petrazycki and Eugen Ehrlich, two of the founders of Legal Sociology who devised concepts of law broader than state law. In the course of this examination we shall also assess the relevance of Petrazycki’s 'intuitive law' and Ehrlich’s 'living law' to contemporary Legal Sociology. The chapter starts by describing the academic and political contexts in which these classical theories were born, before examining their imprint on empirical research. The second half of the chapter brings into focus the potentially romantic element of these ideas, arguing that Petrazycki and Ehrlich’s theories, which were initially intended as alternatives to Legal positivism, lend themselves to romantic quests for the spirit of a community lost in the rise of modernity. In the final part of the chapter these theories are used to explore the Chinese business practices known as guanxi, in order to exemplify how “living law” and “intuitive law” may be employed in socio-Legal research. It also shows how these classical ideas can be developed through confrontation with the empirical conditions of global law and trade. The paper concludes by arguing that a great deal of contemporary Legal Sociology (and Legal theory, for that matter) remains embedded in the paradigm of early modernity, as articulated by Legal theorists at the end of the nineteenth and the beginning of the early twentieth century. A study of classical debates and ideas will allow us to identify how the epistemic assumptions and disciplinary identities of Legal Sociology and Legal theory were shaped and the extent to which they continue to inform socio-Legal research today. This will, in turn, help to construct a platform from which to examine the constraints imposed on our theorizing by early modernity, some aspects of which have undergone transformation with the rise of globalization. (Less)

  • can Legal Sociology account for the normativity of law
    Social Science Research Network, 2012
    Co-Authors: Reza Banakar
    Abstract:

    This paper challenges the assumption that Legal Sociology should apply itself to the external or factual properties of the law and leave the internal and normative aspects of Legal phenomena to doctrinal scholars and moral philosophers. It argues that Legal Sociology explores the normative contexts of the law and other social systems, but being restricted by its “scientific” mode of expression it describes and analyses them in sociological rather than moral terms. Legal Sociology is, and should be seen as, a different language game than moral and Legal philosophy, and its treatment of normativity should be understood on its own terms. The assertion that Legal Sociology should limit its scope of analysis to the study of the empirical aspects of law and leave the study of law’s normative dimensions to other branches of Legal studies is itself a normative supposition and part of the competing discourses which constitute the field of Legal research. These discourses aim at demarcating the disciplinary boundaries between various epistemic approaches to the study of law and creating disciplinary identities rather than exploring the methodological scope of socio-Legal research.Part One starts by briefly considering the relationship between norms and normativity, arguing that normativity is generated by system as well as lifeworld and is not necessarily reducible to the effects or functions of individual norms. Part Two develops this point by making a case for justice as law’s source of normativity par excellence. It maintains that although the relationship between law and justice is often discussed in terms of norms, the normativity that justice exercises on law is dependent on the broader context of the Legal system, which is defined differently by different theories. Part Three draws attention to the methodological constraints of socio-Legal research, according to which social scientific studies of law should apply themselves to the external empirical or factual properties of the relationship between law and society and leave the internal and normative matters to doctrinal scholars and moral philosophers, respectively. The paper concludes by arguing that the sphere of socio-Legal research is not, and cannot be, limited to an examination of the factual characteristics of law. Moreover, the assertion that Legal Sociology should apply itself to the study of the empirical aspects of law and leave the normative dimensions to other Legal scholars is a normative stance and part of on-going attempts at demarcating the disciplinary boundaries of various branches of Legal studies.

  • who needs the classics on the relevance of classical Legal Sociology for the study of current social and Legal problems
    Social Science Research Network, 2012
    Co-Authors: Reza Banakar
    Abstract:

    What do we gain from labeling certain norms of social organization law? This question provides the backdrop against which this chapter will examine the works of Leon Petrazycki and Eugen Ehrlich, two of the founders of Legal Sociology who devised concepts of law broader than state law. In the course of this examination we shall also assess the relevance of Petrazycki’s 'intuitive law' and Ehrlich’s 'living law' to contemporary Legal Sociology. The chapter starts by describing the academic and political contexts in which these classical theories were born, before examining their imprint on empirical research. The second half of the chapter brings into focus the potentially romantic element of these ideas, arguing that Petrazycki and Ehrlich’s theories, which were initially intended as alternatives to Legal positivism, lend themselves to romantic quests for the spirit of a community lost in the rise of modernity. In the final part of the chapter these theories are used to explore the Chinese business practices known as guanxi, in order to exemplify how “living law” and “intuitive law” may be employed in socio-Legal research. It also shows how these classical ideas can be developed through confrontation with the empirical conditions of global law and trade. The paper concludes by arguing that a great deal of contemporary Legal Sociology (and Legal theory, for that matter) remains embedded in the paradigm of early modernity, as articulated by Legal theorists at the end of the nineteenth and the beginning of the early twentieth century. A study of classical debates and ideas will allow us to identify how the epistemic assumptions and disciplinary identities of Legal Sociology and Legal theory were shaped and the extent to which they continue to inform socio-Legal research today. This will, in turn, help to construct a platform from which to examine the constraints imposed on our theorizing by early modernity, some aspects of which have undergone transformation with the rise of globalization.

Tomas Havel - One of the best experts on this subject based on the ideXlab platform.

  • praetorian law a contribution to the beginnings of Legal Sociology
    The Lawyer Quarterly, 2015
    Co-Authors: Tomas Havel
    Abstract:

    This article describes parallels between Roman procedural law and trends incorporating Sociology in Legal science. The author is persuaded that Legal theoreticians at the end of the nineteenth century must have been inspired by Roman law, and in particular by praetorian law. The leader of these lawyers was a Romanist Eugen Ehrlich, so-called “the founder of Legal Sociology”. The author gives detailed attention to the dichotomy between the free and bounded approach in the application of law, specifically with regard to the filling-in of gaps in the law. In the conclusion the author proposes that we be inspired by Ehrlich’s theory, especially by the fight against contra-factual norms of state law, which are of course in conflict with social law.

  • praetorian law a contribution to the beginnings of Legal Sociology
    Social Science Research Network, 2014
    Co-Authors: Tomas Havel
    Abstract:

    This article describes parallels between Roman procedural law and trends incorporating Sociology in Legal science. The author is persuaded that Legal theoreticians at the end of the nineteenth century must have been inspired by Roman law, and in particular by praetorian law. The leader of these lawyers was a romanist Eugen Ehrlich, so-called "the founder of Legal Sociology".The author first analyses the office of the Roman praetor, whose activity was specific in that it touched on all three forms of state power. The praetor however was not a classic official of public power in today’s sense of the word, because he was limited by his term of office and that he was not salaried.The author subsequently gives detailed attention to the dichotomy between the free and bounded approach in the application of law, specifically in filling in gaps in law. While private law codexes (such as Code Civil) bound judges in various degrees, the Roman praetor filled in gaps in law very freely.In the conclusion the author proposes that we be inspired by Ehrlich’s theory, specifically by the fight against contra-factual norms of state law, which are of course in conflict with social law.

Zhang Jian - One of the best experts on this subject based on the ideXlab platform.

Aldo Ravellio Muljadi - One of the best experts on this subject based on the ideXlab platform.

  • analysis of the effect of Legal Sociology with law located in society
    International Journal of Research, 2020
    Co-Authors: Aldo Ravellio Muljadi
    Abstract:

    The Sociology of Law is a part of the science of law that examines the interrelationships or the mutual influence between law and social phenomena which is carried out analytically and empirically. Sociology of Law becomes a benchmark in society whether the law to be formed can live in society, and also whether the law that has lived in society becomes law which can then become a Legal certainty. The Sociology of law can also be a factor of social control, which can then control the norms that exist in society. The results of this study explain that the Sociology of law has an influence in the formation of existing laws in society. Because like Roscoe Pond said that "Law is a tool of social engineering" that is law as a tool for social engineering or the community.