The sociological view of law
Béla PokolSzázadvég Edition
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Abstract
Through its function, law provides normative prescriptions for human behaviour, i.e. it prohibits certain types of behaviour and permits others in a given situation. The fundamental task of jurisprudence is therefore to clarify the meaning of the interrelationships between normative prescriptions and thus to ensure that there are no contradictions in meaning between the many thousands and tens of thousands of legal norms. Only in this way is it possible that the legal rules to be followed in everyday life fulfil their function and that legal certainty is not endangered. Substantive jurisprudence analyses and develops the totality of legal concepts that ensure the internal conceptual coherence of a field of law and constantly monitors the coherence of the legal norms required for specific life situations. From now on, depending on the different legal concepts to varying degrees, the consistency of the specific legal norms and legal concepts with the general principles of justice is also included in the consideration. This approach thus moves in the dimension of normative conceptual coherence. On a broader level, the philosopher of law does the same when, apart from analysing substantive law, he deals with the content of the principles of justice and their relationship to each other, and from this establishes requirements for the conditions of a just legal order. However, law, although it fulfils its function in a normative dimension, is a social phenomenon like other fields of activity that fulfil a social function, e.g. the economy, art, science, politics, etc., and any legal phenomenon can be studied from the point of view of facticity, just like other social phenomena. This is the essence of the sociological approach to law, which can be formulated in contrast to the approach of theoretical jurisprudence or legal philosophy as a field of analysis of social facticity and causality or effects. For example, while the substantive law of civil law examines a legal regulation on a pledge or surety from the point of view of how these contractual securities fit into the framework of existing contract law as a whole, the sociological approach to law asks how often pledges or sureties are used as contractual securities in everyday contractual practice, from the point of view of the absence of contradictions of meaning. Or which social interests and which social disadvantages have favoured the emergence of this form of pledge and surety in everyday contractual practice, and which social interests would be served by alternative regulations in this area? In the sociology of law, one therefore moves from the normative dimension to the factual dimension, to the dimension of conflicts of interest, social causes and effects, when analysing legal norms and legal phenomena. Looking at sociological studies and the various lines of research in the sociology of law in this approach, one can distinguish between a narrower and a broader understanding of the sociology of law. The sociology of law in the narrower sense still focuses on legal norms like the thematic legal sciences, and it is no coincidence that the sociology of law developed historically in the last decades of the 19th century. The sociology of law in the narrower sense, like the theoretical legal sciences, is concerned with legal norms and legal provisions, but with their actual consistency rather than with normative-conceptual coherence and possible logical contradictions. Or does it ask which social interests and political forces have shaped the legal norms under study and which political forces serve the dominance of which political forces in social struggles and which social groups are subordinated and disadvantaged in power by the legal norms under study?
