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Abstract. Legal theory usually distinguishes only two kinds of legal realism: the
American and the Scandinavian. Another school of this theoretical perspective is
German legal realism, which refers to scholars like Ihering, Weber, and Schelsky.
According to German legal realism, the author outlines what legal theory can do to
persuade modern jurisprudence to face the social reality of law, conceived as
institutionalized normative communication. The latter always occurs with reference
to already valid and effectively operative legal norms which are used in an
established, normatively binding legal practice in a given regional society.
I. Introduction
1. In current discussions concerning the different trends or currents of legal
thinking and the development of particular schools in legal theory, for
instance, the analytical-philosophical, and the realistic schools, we find a
vivid interest in deeper insights into the structures of law and legal systems.
Analytic-hermeneutical schools, especially in the past, have often been
accused of isolating the study of law from the socio-linguistic and social
sciences and of neglecting the study of law as a normative study of society,
while the realistic schools (including the historical schools of law of the
19th century) had often neglected to build theories in such a way that the
hypotheses derived (or, at least, derivable) could be tested against the reality
of legal activities. During the last decades Enrico Pattaro was among the first
of the continental European theorists and philosophers of law to make an
empirical and critical assessment of the social premises and underpinnings
and the consequences of modern legal realism. In his fruitful investigations,
especially in recent years, he has shown how much the schools of legal
realism have contributed to the study of law as a psycho-social phenomenon
and to the integration of the study of law and the social sciences.
# Blackwell Publishers Ltd 2001, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
The Concept of Law Revised 35
2. A realistic conception of law and legal systems must not fall back into
the individualistic misunderstanding that society consists basically of
individuals or groups of individuals. According to this view of
methodological, legal and moral individualism, all law is simply the result
of the properties and the decisions of individuals, that is, it flows from the
unified will expressed by the assembly of such individuals or of their
formations in groups and in this way serves as a universal means of
bringing about a binding order. Contrary to this view, I should like to put
forward a version of legal thinking that is informed by history and society.
In my view, all lawÐwith reference to all members of a legal community
who are included in its normative systemÐis a normative, emergent societal
structure. It is always found at a deeper socio-structural level than are all
actual individuals or their formations in groups whose behaviour is
regulated on the basis of and in accordance with the standards of this legal
system (Krawietz 1998a, 180ff., 193ff.; 2000, 108f.).
a) One cannot, therefore, determine, describe or explain the law only by
means of analytical-theoretical toolsÐby taking principally the unbound
individual as one's point of departure without having already determined
the emergent properties and characteristics of the legal system itself. The
legal system as a whole is and remains a subsystem of society. Law gives
effect to, mirrors or is otherwise expressive of the prevailing social relations.
This is precisely the central insight of the legal and social theory which I
share with German sociological jurisprudence and legal realism, the socio-
logical institutional theory of law and systems theory. I shall return to this
point below.
b) Thus it is simply not the case that all law can be understood as a
subsequently imposed limitation and restriction, as it were, on individuals
and formations of groups affected by law who are a priori not restricted but
are absolutely ``free.'' As a result, I have never been able to share the love
that both analytical philosophy and American idealism have shown for
socio-philosophical individualism and an individualistic theory of action
which seeks to trace all human action to the properties of the individual, the
acting individual, that is, to trace them to a priori life essences informed by
reason. These approaches do not manifest an interest in the concrete social
forms of life and interaction between human beings, or an interest in the
organised social relations accessible through experience and observational
methods of analysis in the social sciences, let alone an interest in the social
reality of the law.
3. Compared with the present state of research in communications, it
appears that the research trends of formal logic, language analysis and
analytical hermeneutics as well as their applicability to law and juris-
prudence are, in their fundamental aspects at least, developing satisfactor-
ily. In contrast, it would seem that research concerning a theory of legal
communication is lagging behind somewhat.
# Blackwell Publishers Ltd 2001.
38 Werner Krawietz
human action by the normative networks of the legal systems which are
formulated and fixed by the language of law. In other words, in respect of
the complexities of the circumstances of life, all legally relevant matters
undergo a dichotomisation into norms and facts which in terms of social
structure is a characteristic feature based on socially generalising (factual/
normative) expectations of law (SchroÈder 2000, 54f., 66ff.; Veddeler 1999,
118ff., 130ff.). It is their social function to induce the addressees of the law to
act in the way they (i.e., the normative networks) prescribe, that is, to make
sure they adhere to the norms. This occurs when the latter fulfil the pre-
scribed behavioural expectations which have been fixed and generalised
by the language of law, e.g., when their behaviour conforms to or deviates
from the norm. Thorough research is needed, however, to understand
exactly how legal communication takes place in reality, i.e., how the norma-
tive obligation and social impact of law are actually brought about.
b) A concept of law based solely on the state and concerned exclusively
with formal state law without taking account of the manifold informal social
conditions and prerequisites for the production of law seems, by contrast,
far too narrow an approach. By normative self-reference, I mean the insti-
tutional legal fact that self-organisation and self-production of the legal
system and of the required laws take place in the legal systems of modern
society, i.e., the communicative system is conceived as self-referring, self-
maintaining and self-reproducing. There is a continual self-reproduction of
the legal system in the sense that it continually refers back to itself in all its
factual/normative operations, i.e., it takes into account other operations and
actions it has previously undertaken. Law does not, however, only come
into existence in specific bodies set up by the state or in highly bureau-
cratised states with their legal staffs. The state has neither a monopoly nor a
prerogative for the creation of law.
2. From the point of view of the theory of law and of systems theory, law
comes into existence in all social institutions and systems, namely in interactive
systems, organisations and in the variety-pool of society, be it regional society
orÐon a higher level of abstractionÐglobal society as a whole. What I mean
by global society is notÐas in Luhmann's approachÐworld society in its
differentiation into independent functional subsystems of society, but the
social reality of law in its interaction and organisation systems as well as in
state or non-state legal systems which also involve organisation systems
(Krawietz 1998a, 181f., 193; Werner 1992, 204f., 210ff.; Schemann 1998, 576f.).
My institutional and systems-theoretical approach to law differs from
Luhmann'sÐapart from the fact that he does not mention state legal
systemsÐabove all, because the concept of law and society used by me here
rests on the differentiation between regional and global society, meaning
society, as a whole. This distinction appears to me to be of fundamental
importance as a guiding principle for the social observation of law. It is only
by adhering to it that the theory of law can avoid the danger of missing the
# Blackwell Publishers Ltd 2001.
40 Werner Krawietz
access to the social reality of law in its observations and of getting lost in
speculations about the world society of law as such. Unless I am wholly
mistaken, turning to the social reality of law in legal and social theory has
now not only become possible but indispensable!
a) This is whyÐwith a view to the requirements to be met by a theory of
normative communicationÐan attempt is here being made to sketch the
outlines of a socially adequate framework theory of legal communication
which rejects as a matter of principle the narrow limitations imposed on
legal thinking by individualistic actor- and subject-centred theoretical
approaches.
b) When analysing the information and communication systems of
modern law in terms of legal and social theory, it is vital to base this
analysis on the difference between regional and global society (global system,
world society). From the point of view of an intercultural comparison of
law and legal systems the first elements and components linking up to
form a global society may well already exist, especially so in the world of
technology. A runway is a runway, no matter where in the world pilots
approach it. We recognise it when we see it. The same situation may become
true for the law and legal systems due to the technological advances and
possibilities in juridical communication which appear to allow a worldwide
network of law to spread. At present, however, we have neither one global
law nor one global state, nor one global culture of law (Krawietz 1998b, 260f.;
Riechers 1998, 555f.). There are also a number of reasons why it is highly
unlikely that they can or will ever exist. LawÐseen here as a normatively
structured communication system comprising all its interactions and
organisationsÐon the level of global society is no more than a system of legal
systems which integrates all the different national legal systems within it.
To sum up! The most fundamental unit in social interactions and trans-
actions spanning a variety of organised social systems is, therefore, not the
human being, the individual, the person or the subject as the voluntarist agent of
human action but the normative-socially structured juridical communica-
tion which interlinks with other juridical communications and thereby
invests the social order of law with normative stability and a concrete,
binding character. It follows that the information and communication
system of law is a vast network made institutionally permanent and
composed of systemic operations consisting of directives and norms.
V. Concluding Remarks
1. Institutionalist legal theories both of old and new provenance are so
much in vogue again today because basic legal research has in the last two
decades more clearly than previously exposed the hidden deficiencies by
which the merely analytical approaches in modern legal theory have always
been afflicted, and from which they are still suffering to this day, namely
(i) the positivist restriction of its norm theory and (ii) their shortcomings
in legal and social theory. In continental Europe this applies, for instance, to
the various types of pure theories of law which probably constitute the
purest embodimentÐalbeit each to a different extentÐof analytical juris-
prudence in its present form.
a) It is quite obvious today, however, that the exaggerated legal
positivism of these schools of thought supported and strengthened by
the postulate for purity which they advocate has hitherto prevented
these approaches of analytical jurisprudence from ascertaining addition-
ally and to a sufficient degree the presuppositions and foundations of
norm theory provided by legal and social theory. The renewal of institu-
tionalist forms of jurisprudence taking place at present does, on the other
hand, appear to offer a suitable way of compensating the deficiencies in
the analytical-hermeneutic legal theories which basic research in legal
and social theory has diagnosed. My own impression is that more ques-
tions are raised than answered in the context of these institutional theories
of law.
b) Every modern legal system, understood as a societal subsystem consist-
ing of both the primary and secondary social system of law can be observed,
described and explained in socially adequate terms with the tools of
normative legal communication. Other than the more pragmatic American
legal realism and also other than its Scandinavian versions which Pattaro
has so aptly described, the legal realism advocated here is founded on a
sociologically based concept of law reflected by a theory of norms and
action. Such a conception does, however, have to be reconstructed and
complemented by a theory of institutions and social systems, as I have
pointed out elsewhere.
# Blackwell Publishers Ltd 2001.
44 Werner Krawietz
University of MuÈnster
Chair of Sociology of Law
Legal and Social Philosophy
Bispinghof 24/25
D-48143 MuÈnster
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