No. 1




Sociology of Law, and Law-Making

15 June 2000


RiTo No. 1, 2000

Max Weber, founder of the sociology of law, explicitly distinguished formal, procedural (how?) and material, substantive (what?) dimensions of law.

In modern society it is formally rational law that can be effective. In addition, law should be a rather closed, self-reproductive system, only indirectly reflecting changes in the social framework. Similar ideas are upheld in the works of Parsons, Carbonnier and Luhmann. A radically different position is presented in the writings of Habermas. Law and the law-making process must be of an entirely communicative and consensual character: only those norms are valid and legitimate which all the concerned persons have agreed on as participants in rational discourses.

The actual state of law-making practices could be located somewhere between these two extremes: legislation is not a normatively and cognitively closed process, it makes more and more use of all kinds of social information. At the same time socio-legal studies clearly indicate that the use of social information in law-making is normally neither specially required nor formally regulated.

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