Legal system (sociology)

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The legal system is seen in sociology as a manifestation of social reality.

Demarcation

While jurisprudence (as a normative science ) deals primarily with the current legal system, including its legal history and legal policy (law in the books) , legal sociology empirically records the interaction between the legal system and social reality (law in action) .

In sociological systems theory , the legal system is regarded as a system of order that is independent of other social systems , but that interacts with these other systems - such as politics or economics.

The legal system is a branch of jurisprudence.

Sociological theories about the legal system

The law as a means of social order has always been the subject of state theory .

The scientific study of state and society began in the middle of the 19th century with Auguste Comte . Methodical models were the natural sciences and empiricism , especially the theory of evolution and Darwinism . These were carried over to human society. In the face of the industrial revolution, Comte considered the power of positive law to shape and influence dynamic social development to be questionable.

Historical materialism

According to Karl Marx 's theory of historical materialism , the law serves the ruling class, the bourgeoisie, as an instrument of their capitalist rule, especially the guarantee of their property and ideological assertion in the class struggle . According to Friedrich Engels , the completion of communism and the withering away of the state also entail the dissolution of law. Dominion is then realized solely through the power of reason.

rationalism

Max Weber distinguished the legal system as a rational , legitimate system of rule from other factually effective rules of conduct such as convention or custom . In contrast to Marx, according to Weber, freedom of contract enables the individual to be released from the legal barriers of his class.

According to Eugen Ehrlich , "the first task of the sociological science of law is to summarize what is common to legal relationships, regardless of the positive rights that apply to them, and to investigate the differences according to their causes and effects. He thus established legal pluralism , the living Law is scientifically investigated as "the law not laid down in legal clauses, but which nevertheless rules life".

Institutional Theory

Institutional theory regards the legal system as an institution that serves social self-preservation and the balance of interests.

For Herbert Spencer, institutions were already the organ-like sub-divisions of society, that is, interacting with the whole of society and the individuals, which determine its social structure. The goal common to all institutions of society is the maintenance of the social system as a whole. At the same time, however, every institution primarily seeks to maintain itself. Spencer distinguished at least six types of institutions: family, political-state, industrial-economic, religious, ceremonial and professional institutions. The organic conception of society as a natural system, the members of which are related to one another in terms of work and function, is later found in the systems theory of the 20th century. In his norm-sociological theory of the institution, Niklas Luhmann adds consensus as a prerequisite and legitimation as a consequence and effect of a permanent institution.

Arnold Gehlen attributed to the legal system as an institution for humans, as a deficiency not bound by instinct, above all a stabilizing function. Certain basic human needs, for example for food or sexuality, arise customs and manners for their satisfaction. These would be further developed into institutions in the sense of permanent and regulated social action with autonomy, for example marriage in its capacity as a household and living community.

Helmut Schelsky recognizes the anthropological function of institutions in the rational regulation and shaping of social relationships through free and conscious purposeful action.

However, no clear causal relationship can be established between biological drives and needs on the one hand and the forms and institutions of social action on the other. Rather, the creation of secondary needs by the institutions themselves precludes the direct assignment of the observable institutions to biological needs. In addition, each institution satisfies several needs at the same time and each need can be satisfied in several institutions. Thus, in addition to the household and cohabitation of the spouses, marriage also serves to raise children (needs synthesis of the institution). You can also eat in a restaurant or have the children educated in a boarding school (functional equivalence of the institutions).

Institutional legal thinking

The sociological institutional doctrine must be distinguished from institutional legal thinking as it was founded by Friedrich Carl von Savigny in the 19th century.

For Savigny, the legal institution meant the amalgamation of related legal clauses to form higher system units, e.g. B. on the institutes marriage, kinship or property. The legal institute represented a middle link between the individual legal set and the whole of the legal order, which Savigny understood as an organically grown system of institutions in the sense of the historical school of law . The institutions then form the building blocks of society, most of which already exist and therefore have to be invoiced, but which can also be redesigned for specific purposes. Institutions can be established, maintained, changed or destroyed through legal norms . Whether one should happen or the other depends on how their performance is assessed for the members of the larger, broader system, the legal system.

From this form of legal positivism , Hans Kelsen developed the pure legal theory at the beginning of the 20th century .

In addition to their purely descriptive function, legal institutions are also methodically used to develop new legal rules based on the nature of the matter , especially in judicial legal training .

An over-positive understanding of institutions such as that of Carl Schmitt , with whose help the lawyers in the time of the Third Reich put into the institutions what corresponded to their political ideas, left the legal system to state and ideological discretion.

Systems theory

In systems theory or in functionalism , all parts of society are understood as (sub) systems. The legal system is in mutual "contact" with other systems such as politics, economics, education or health and receives inputs from these , e.g. B. in the form of cases for the courts. At the same time, it reflects back to these other systems in the form of judgments ( output ).

Niklas Luhmann in particular has published fundamental systems-theoretical works on law. According to Luhmann's view, the law as a social subsystem consists of self-referential communication, which, according to its specific function, relates to the binary code right - wrong . The legal system is also influenced by its environment; H. the acting persons such as judges or lawyers. Gunther Teubner has summarized this view in the concept of law as an autopoietic system and extended it to foreign legal systems.

However, the legal system is not autonomous, but rather embedded in the political relationships of power and is shaped by them. Planning is an essential design tool .

The French sociologist Pierre Bourdieu understands social reality as a correlation between social field and habitus , similar to how Niklas Luhmann differentiates between system and environment . Habit is related to the field as the environment is to the system . Both pairs of terms replace the dualism of individuals and society. So far, however, there have been no indications that Bourdieu had developed his own theory of law, although his theoretical structure could certainly provide new insights into law, its institutions and actors.

Legal system and globalization

Modern legal development was largely shaped by the interests of the economy, initially with the need for freedom of contract and reliable enforcement and later mainly by the need to adapt all other social systems such as the education sector or the labor market to economic development, and increasingly also to regulation and stabilization of this development itself, for example through the Hartz concept . Luhmann considers all attempts to restore the primacy of politics over the law to be in error.

This finding is exacerbated by globalization .

Critical legal studies , for example, deal with the deconstruction of national legal systems by supranational systems, in particular the globalized economy, which destroys the traditional hierarchy of norms of political-state law by creating non-state norms of global law without national or international law institutionalization , the economic analysis of law or certain governance models. Terms for such legal systems are for example "polycontextural" or "hybrid".

This global development also gives rise to a new discussion of materialistic legal theory.

literature

Individual evidence

  1. ↑ Ingo Schulz-Schaeffer: Legal dogmatics as an object of legal sociology. For a legal sociology 'with even more justice'. In: Journal of Legal Sociology. 2004, pp. 141-174.
  2. ^ Klaus F. Röhl : Forerunner legal sociology online. de, § 3, accessed on September 28, 2017
  3. ↑ Jakob Graf, Anne-Kathrin Krug, Matthias Peitsch: Law in Marxian thinking. An introduction to: AG Legal Criticism (Ed.): Legal and State Criticism according to Marx and Paschukanis. Law - State - Criticism 1, Bertz + Fischer Verlag 2017. ISBN 978-3-86505-802-7
  4. ↑ Max Weber: The legal and the sociological concept and meaning of the legal system in: Economy and society . Outline of Understanding Sociology, 1922
  5. ↑ Max Weber: The three pure types of legitimate rule Collected essays on the science of science. Edited by Johannes Winckelmann , Tübingen 1985, p. 488
  6. ↑ Eugen Ehrlich: Foundation of the Sociology of Law 1913, p. 402 f.
  7. ↑ Helmut Schelsky : The institutional theory of Herbert Spencer and their successors , in: The sociologists and law. Treatises and lectures on the sociology of law, institution and planning. 1980, pp. 248-261.
  8. ^ The institutional doctrine of Niklas Luhmann in: Klaus F. Röhl : Rechtssoziologie , 2006, p. 397 ff.
  9. ↑ Helmut Schelsky's institutional doctrine in: Klaus F. Röhl : Rechtssoziologie , 2006, p. 404 ff.
  10. ↑ From sociology to philosophy: Arnold Gehlen's institutional theory in: Klaus F. Röhl : Rechtssoziologie , 2006, p. 399 ff.
  11. ^ Institutional legal thinking in: Klaus F. Röhl : Rechtsssoziologie , 2006, p. 401 ff.
  12. ^ Legal positivism ethics, volume 4, Verlag Hölder-Pichler-Tempsky , p. 103 ff. Accessed on September 27, 2017
  13. ↑ Bernd Rüthers : The unlimited interpretation. On the change in the private legal system under National Socialism. Tubingen, 1968
  14. ↑ Gralf-Peter Calliess : System theory: Luhmann / Teubner , in: Sonja Buckel , Ralph Christensen, Andreas Fischer-Lescano (eds.): Neue Theorien des Rechts, Lucius & Lucius , 2006, p. 57 ff.
  15. ↑ Simone Rastelli: The Sociological System Theory by Niklas Luhmann Website of the NDR , October 22, 2008
  16. ↑ Klaus F. Röhl : The law as an autopoietic system January 2011
  17. ^ Gunther Teubner: Law as an autopoietic system. Frankfurt am Main, 1989. ISBN 978-3-518579824
  18. ^ Gunther Teubner: Globale Bukowina. On the emergence of transnational legal pluralism, in: Rechtshistorisches Journal 1996, pp. 255–290
  19. ↑ Eckard Bolsinger: Autonomy of the Law? Niklas Luhmann's sociological legal positivism - a critical reconstruction Politische Vierteljahresschrift 2001, pp. 3–29
  20. ^ Joachim Nocke: Autopoiesis - legal sociology in strange loops Critical Justice 1986, pp. 363–389
  21. ↑ Joachim Fischer : Bourdieu and Luhmann: Sociological double observation of "bourgeois society" after their experience of contingency in: Marc Armstutz, Andreas Fischer-Lescano (ed.): Critical system theory. On the evolution of a normative theory. Bielefeld 2013, pp. 131–145.
  22. ^ Klaus F. Röhl : Foucault and Bourdieu legal sociology online. de, § 10 II., accessed on October 4, 2017
  23. ↑ Anja Böning: Studying law with Pierre Bourdieu May 29, 2017
  24. ↑ René Angelstein: Law and concept of university. The legal field and social inequalities in the process of university admission VS Verlag für Sozialwissenschaften, 2017. ISBN 978-3-658-16769-1
  25. ^ Klaus F. Röhl : Niklas Luhmanns legal sociology legal sociology online. de, § 9, accessed on September 23, 2017
  26. ↑ Klaus F. Röhl, Stefan Magen: The role of law in the process of globalization 1991
  27. ↑ Globalization and Law, 2nd Berlin Legal Policy Conference of the Konrad Adenauer Foundation , November 29-30, 2007
  28. ↑ Jürgen Habermas : The European nation-state under the pressure of globalization without a year, accessed on September 24, 2017
  29. ↑ Gunther Teubner: The king's many bodies. The self- deconstruction of the hierarchy of law SozSys 1996, issue 2
  30. ↑ Elizabeth Anderson : Private Government: How Employers Rule Our Lives (and Why We Don't Talk about It) 2017. ISBN 9780691176512
  31. ↑ Angelika Emmerich-Fritsche: The lex mercatoria as enforceable transnational commercial law and world company law without a year, accessed on September 27, 2017
  32. ↑ Felix Hanschmann: A Rehabilitation of Materialistic Legal Theory Review by Sonja Buckel : Subjectivation and Cohesion. To reconstruct a materialistic theory of law. Weilerswist 2007
  33. ↑ Ersin Yildiz: Marx's constitutional writings and the development of materialistic legal theory. in: Joachim Hirsch, John Kannankulam, Jens Wissel (eds.): The state of civil society. On Karl Marx's understanding of the state. 2nd edition, Nomos Verlag 2015, pp. 120–144
  34. ^ Nouriel Roubini: System criticism: How capitalism can still be saved, Handelsblatt , October 18, 2011
  35. ↑ Ulrike Herrmann: Chapter 2.0: What Marx was actually right about Deutschlandfunk , March 2, 2017