Law falls into the social sciences

Michael Wrase: Legal Sociology and Law and Society - The German legal sociology between crisis and new beginnings


1. Legal sociology in the Federal Republic: expectations and successes

At the beginning of the 1970s, sociology entered the law faculties with great pathos. Rüdiger Lautmann headlined at the time: “Sociology at the gates of jurisprudence” (Lautmann 1971) and thus expressed a widespread mood that urged the social sciences to be more firmly anchored in legal education and law in general: Law should understand itself as a social science, should be sociologized ”(Lautmann 1971, p. 7; similar to Rottleuthner, 1973). A social science foundation for legal work was intended, the normative justification model of which seemed to be becoming fragile.

1.1 The beginnings: Judges' sociology and establishment of the legal sociology section

As early as 1969, the sociologist Wolfgang Kaupen had alarmed lawyers with his book “The Guardians of Law and Order”. Kaupen carried out an empirical study at the University of Cologne on origin, socialization and the “typical behavior and personality structure of German lawyers” (Kaupen 1969, p. 63). His findings were not very flattering: the lawyers of the early Federal Republic were risk-averse, obedient to the authorities, ideologically and socially belated. “We observed that lawyers predominantly and overrepresented come from families in which the normative control of behavior is given greater importance than goal-oriented behavior. This pattern of conformism in particularist and hierarchically structured communities is reinforced by religiously founded influences, further deepened in school as a similarly structured “middle class institution” or at least maintained by a negative sanction of differently oriented students. … In the legal preparation period, the prospective lawyers are again under strict social control and here too have little opportunity to develop individual motivation and intellectual independence. The same applies if they subsequently work in the civil service ... ”(Kaupen 1969, p. 215f.).

It is hardly surprising that these very bold statements by Kaupen did not meet with undivided agreement, especially in legal circles (cf. Bryde 2000, p. 139). This was preceded by a study by Ralf Dahrendorf, from whom the famous sentence comes that in the German judiciary half of society sat in court above the other (Dahrendorf 1961, p. 195). Kaupen's work was ideally suited to substantiate the accusation of “class justice”. A verdict that was later obtained through studies, inter alia. has been partially revised by Hubert Rottleuthner (1982). It could be proven that organizational and activity-related influences were more decisive for the judge's behavior than their social background. [2] Rottleuthner then heralded the turn from legal sociology to more application-oriented legal research with a survey on labor jurisdiction in the early 1980s - "For a legal sociology with more law" (Rottleuthner 1982, p. 82 ff.).

The history of legal sociology in the Federal Republic of Germany began with the sociology of the legal profession - and from the beginning it attracted public attention as well as political polarization. At that time, the first institutional structures could also be established. In 1970, Kaupen founded the Working Group for Legal Sociology e.V. (a.r.s.) at the University of Cologne, whose “Information Letters” became a regular publication organ for legal sociology. The journal for legal sociology was to emerge from them later. [3] 1972 saw the establishment of the legal sociology section within the DGS (German Society for Sociology), which was mainly operated by Kaupen together with other "first hour" legal sociologists such as Erhard Blankenburg, Rüdiger Lautmann and the judge Theo Rasehorn (Rasehorn 2002, P. 26 ff.). The main aim of this group was to criticize and reform legal training and working methods. The lawyers should break new ground, use social science methods and ways of thinking and make their decisions “closer to reality” and thus more socially fair. The word of the lawyer as "social engineer" made the rounds (Rottleuthner 2002, p. 65). The "silent violence" [4] should learn to speak. In 1972, as Theo Rasehorn writes, for the first generation of legal sociologists - I consciously use the masculine form here and in the following, women were not represented at the time - the gates to the "cathedral" of lawyers, the German Lawyers' Conference in Düsseldorf, "opened up" where Wolfgang Kaupen gave a lecture to around 600 participants; but with little resounding success, as Rasehorn says: “Legal sociologists have never been invited to a lawyers' day” (Rasehorn 2002, p. 17).

1.2 New beginnings in the law faculties

Politically, at the beginning of the 1970s, the insight had spread that social conditions in the Federal Republic had become somewhat paralyzed and were therefore in need of reform. The social shock did not pass the lawyer by. Leading representatives of science such as Ernst Forsthoff, Theodor Maunz or Karl Larenz, who also shaped legal doctrine in the young Federal Republic, were entangled in National Socialism (cf.Wesel 2001, p. 486 ff.) And some problematic legal careers that occurred in the NS State had started, was continued seamlessly in post-war Germany (Diestelkamp 1988). This too shook the public reputation and self-image of the lawyers at times. But not for long. The new generation of lawyers got rid of the inglorious past by distancing themselves from their predecessors where necessary, but otherwise, wherever possible, clinging to traditional traditions and working methods. On the other hand, there was a phase of revitalization, especially in legal theory, from the mid-1960s. This was also due to the fact that positivist methodology was charged with the accusation that it favored National Socialism (cf. Grimm 1987, p. 370). Suddenly it was no longer just about classical hermeneutic art of interpretation, but also about rhetorical explanatory models (influential: Viehweg 1973, first edition from 1953), the influence of the “preliminary understanding” in interpretation (Esser 1970) and considerations of consequences in legal decisions. This was an opportunity for legal sociology that could have filled the post-positivist vacuum (cf. also Bender 1994, p. 108 ff.).

In the climate of political reforms and social renewal under the new social-liberal government of Willy Brandt, according to widespread opinion, the social sciences should play a leading role in science policy (cf. Bender 1994, p. 112f.). The moderate reform forces within the judiciary also saw the increased inclusion of social science elements in the legal way of thinking as an opportunity to open up new, more realistic and contemporary perspectives for jurisprudence (Raiser 1998, p. 12). At the time, the political reform processes also put pressure on the law faculties, which were regarded as conservative, to open their teaching and research to the social sciences. However, they did not want to leave the initiative to the sociologists working in legal sociology, or as Thomas Raiser puts it: “The lawyers who were open to legal sociology remained focused on empirical social research (the group organized in the section around Kaupen, the author) Topics and methods were rather unfamiliar. ”The lawyers were rather“ interested in research into legal facts, the questions of which arose from certain legal problem constellations and were therefore specified by the lawyers. ... The relevance of legal sociological research results for the legislature was less in their perspective. Second, some of the empirical studies offended the lawyers ”(Raiser 1998, p. 13). This split between lawyers interested in legal sociology and sociologists who researched justice and law had an institutional and substantive impact on German legal sociology.

1.3 Reform of legal training and establishment of the association

Legal sociology found its way into legal curricula in the 1970s. Chairs for legal sociology have been established at many law faculties and departments, but mostly in connection with a legal-dogmatic subject. [6] From the outset, the disciplinary boundaries proved to be a critical institutional obstacle to real cooperation between law and social sciences. It soon became clear that the legal sociological training at the legal faculties should mainly be carried out by the law professors themselves - “lawyers on a part-time basis”, as Gerd Bender once called them (Bender 1994, p. 106).

In the course of a working conference on legal sociology in Giessen in July 1975, a group of reform-oriented lawyers gave rise to the initiative to found the Association for Legal Sociology, which began its work in 1976 as an independent association. The founding members include such illustrious names as Jutta Limbach, Josef Esser, Wolfgang Hassemer and Wolfgang Hoffmann-Riem; the connection to the section was established by Rüdiger Lautmann and Erhard Blankenburg (cf. Raiser 1998, p. 16). It also became clear that the association was interested in an open interdisciplinary dialogue and, in contrast to the DGS Legal Sociology section, did not want to see itself narrowed down to a specific sociology. Right from the start, it made a point of not becoming a classic university teachers' association (Raiser 1998, p. 15), but rather a "forum for everyone who deals with the relationship between law and society in law or various social sciences." [7] On the other hand, it should be noted critically that its focus was too one-sided on law - which can be explained by its history and its circle of members. However, the competition between the association and the section gradually dissolved over the years and has meanwhile given way to extensive cooperation between the institutions (Machura 2001a, p. 45). The paradigm of “two-lane tactics” (Blankenburg bei Machura 2002, p. 149) is now being replaced by “bundling forces” (Bussmann [8]).

Despite an initial, albeit weak, institutionalization, legal sociology faced considerable resistance from the start. Among many lawyers it was decried as "political" and "left" because of its partially socially critical and reformist aims. Klaus F. Röhl writes this very vividly: “That was a time in which many, actors as well as observers, confused sociology with socialism. The student movement, which had peaked in 1968, had hardly died down. Sociology was largely shaped by Marxism and the Frankfurt School ”(Röhl 2005, p.1171; see also Strempel 1998, p. 30).

Some legal departments such as Bremen, Hanover, Hamburg and Bielefeld have not been able to completely free themselves from this stigma. At these universities, a one-phase legal training was tried out, which, in addition to the waiver of the traditional legal clerkship, provided for the inclusion of the social sciences in the legal studies as a central element (see Kühling 1997). Because the one-phase training was only introduced half-heartedly and viewed with great skepticism by established law, it was easy for the opponents to let the reform project fail. In 1984 the Bundestag, which was again dominated by bourgeois liberalism, decided to reintroduce the two-tier system in all reform departments and thus put an end to the social science legal training (cf. Hoffmann-Riem 1986, p. 9f .; Nocke 1986, p. 36f.) .

At around the same time, the project of a social science research group at the Max Planck Institute for Comparative and International Private Law in Hamburg, which was headed by Volkmar Gessner for seven years and then had to move to the Center for European Legal Policy (ZERP) in Bremen (Plett / Ziegert 1984 ; Martiny 1984). Legal sociology was neither allowed to establish itself with greater effect in legal teaching and thus in the legal departments, nor - as comparative law, international law and legal history have succeeded - in establishing itself firmly within the Max Planck Society To build up a foothold in research (Bender 1994, p. 100ff.). At least the Ministerialrat Dieter Strempel succeeded in setting up a “legal fact research” unit at the Federal Ministry of Justice (which still exists formally to this day), and there, since 1985, within the framework of the “Structural Analysis of Legal Research” (SAR) project, he has established a collaboration between lawyers and sociologists was reflected in various empirical studies and reports (Strempel 2002; Machura 2001a, p. 45; downright euphoric: Rasehorn 2001, p. 284 ff.). The project ran for about 10 years.

2. Task and position of the sociology of law

If we take an overview of the time, the sociology of law in the 1970s and 80s was essentially shaped by the following objectives: As a science critical of rule, it was supposed to address the social background of justice and discrepancies between written and “living” law, social reality discover. As a management science, it should also check the feasibility of legal policies or evaluate and improve implemented programs. On the part of empirical legal sociologists, but also, to a moderate extent, of reform forces within jurisprudence, the greater consideration of the social sciences was linked to the hope of putting legislative processes and judicial decisions on a better, because more rational basis, also in factual terms. In the tradition of Eugen Ehrlich, this approach can also be described as sociological jurisprudence, in contrast to a sociology of law as sociology, which primarily wants to describe and understand “law” as a social phenomenon (Machura 2001a, p. 41 ff.) .

2.1 Legal sociology as an auxiliary science?

Legal sociology was therefore mainly thought to be application-oriented, and not infrequently even downgraded to an “auxiliary science” of jurisprudence (cf. Machura 2001a, p. 42; Luhmann 1993, p. 29). Sociological support should be provided where, according to the legal opinion, general (legal) factual determinations were necessary or a more precise “knowledge” of “social reality” could possibly contribute to an improvement of the law. Stefan Machura, today's spokesman for the Legal Sociology Section, sharply criticized this development in an afterword of the ZfRSoz 1999: “Legal sociological labor has always been consumed by theory-free“ legal fact research ”, which proceeds according to the principle“ lawyers ask - sociologists answer ”, no connection to the current sociological discussion and is therefore mostly irrelevant for the sociological community ”(Machura 1999, p. 333; on the other hand Rasehorn 2001, p. 286 ff.)

But the social sciences, too, often showed little interest in dealing with “law” as an object of research and conducting an interdisciplinary exchange about it that would have deserved such a name (Strempel 1998, p. 31: instead of “fruitful cooperation” there was “fruitless Confrontation"). The sociology of law was shaped in the 1980s and 1990s by the great socio-theoretical works by Niklas Luhmann (1993) and Jürgen Habermas (1992) (see Hiller / Welz 2000, p. 232; Bender 1994, p. 120 ff .). Last but not least, Luhmann provided the sociology of law with a remarkable work, but never tired of emphasizing that these are sociological-theoretical descriptions of law that are hardly relevant for legal theory and dogmatics as internal business of jurisprudence (e.g. Luhmann 1974 ).

Other legal sociologists, on the other hand, after the program "Law as Social Science ... failed" (Rottleuthner 1998, p. 323), quite deliberately withdrew to empirical research - without concealing their aversion to the "great" sociological theories of law ( Rottleuthner, 1987, p. 32; Rottleuthner, 1992; more clearly: Rottleuthner, 2002, p. 52f.). As just as the criticism may have been in the matter, all of this was rather counterproductive for successful cooperation within legal sociology.For a long time there was neither a fruitful dialogue between theoretical and empirical legal sociology, nor between legal sociology and legal theory and legal dogmatics, nor with the other social and humanities disciplines. There was no question of a real interdisciplinary exchange. Rather, legal sociology has repeatedly delimited its field itself and against other scientific fields (see Rottleuthner 1981, pp. 62f.), For example against legal ethnology, anthropology, anthropology, legal theory and political science. Brun-Otto Bryde described this development as a “fearful defensive definition of subject boundaries” (Bryde 2000, p. 140). Rottleuthner speaks of a "label scramble" that is actually not necessary (Rottleuthner 1987, p. 4f.).

2.2 Consolidation

The major reform concepts had failed by the end of the 1980s at the latest, and legal sociology had to be content with smaller academic “bread rolls”. At first she did this with great success. The lawyers in particular were able to distinguish themselves among the legal sociologists (Röhl 2005, p. 1171). While some were gradually appointed to the Federal Constitutional Court (in chronological order: Grimm, Limbach, Hassemer, Hoffmann-Riem, Bryde), the other brought textbooks onto the market (Raiser, several editions, most recently in 1999 and Röhl in 1987). The mood spread that the possibilities were simply exhausted (Bender 1994, p. 135: “new modesty”; Lucke 1988, p. 124: “Consolidation”). Criticism of rulers and lawyers was not very popular anymore. Political control issues became the subject of political science, their legal implications remained a minor matter. After all, the horror of the strictly conservative lawyers had become obsolete after even the Federal Constitutional Court, which was still the target of criticism in the 1970s, no longer indicated an anti-reformist direction by the early 1980s (cf. Wesel 2004, p. 277 ff.) .

The sociology of law was and is in almost all federal states a "basic subject" and thus an integral part of the law course. But she didn't manage to do more than that. To be precise: a two-hour lecture in the second or third legal semester that students have to attend (or not) in order to acquire a certificate (see Raiser 2000, p. 323 ff.). The sociology of law has not achieved any real fame with this, on the other hand, this (minimal) anchoring in the training regulations at least ensured the continued existence of the subject in the law faculties.

3. The crisis of the sociology of law

Since the mid-1990s, however, this minimal presence of legal sociology seems to have intensified into a real crisis. Legal sociology chairs that become vacant are either not filled at all or are given to scientists who work mainly dogmatically and are only marginally interested in legal sociological research and teaching. [9] A rough survey of the law faculties showed that there are still a little more than 10 chairs [10] whose names (denominations) expressly indicate a legal sociological orientation. [11] In contrast, the basic subjects “Legal Philosophy / Legal Theory” and “Legal History” are very popular, each with between 50 and 80 mentions. As Thomas Raiser states, the last-named basic disciplines are “far better anchored in the minds of lawyers than legal sociology” (Raiser 2000, p. 323), despite all the current dangers.

Legal sociological conferences take place regularly and their scientific level is beyond question, but usually only a small group of experts meet there - the community remains to itself. [12] In 2002 a conference in Bielefeld dealt with the "Perspectives of Legal Sociology". According to information from several participants, a general mood of crisis prevailed there, whereby the contribution by Fritz Jost, who stated that the situation in legal sociology is "no worse today than it was before" (Machura 2002, p. 152), was probably one of the most optimistic assessments. The problem with young talent is also glaring. In Germany it has so far been part of the higher education system that young academics are primarily promoted through the professorships. The legal sociology professors were particularly unsuccessful on this point. The legal sociological associations have only recently started to actively promote young talent.

3.1 Anchoring in the law faculties

(Qualification) work has become rare among young lawyers. The reasons for this are known and have often been complained about. The training based on the long outdated (Bryde 2000, p. 153f.) Model of the “unified lawyer” still follows the classic canon of civil law, criminal law and public law. It is about the practice of legal case-solving techniques or of doctrinal opinions and court decisions on individual problems, which are then checked in the state exams (very clearly Kühling 1997, p. 135: "Substantive legal knowledge, poured-in and repeated case and jurisprudence knowledge, combined with a rather drill-like than method-consciously practiced exam technique "). The course, which is crammed with legal compulsory reading of this kind, leaves just as little space for dealing with historical, social and cultural backgrounds as it is for scientifically sound reflection on legal action (cf. Kühling 1997, p. 136f.). Very few lawyers come into contact with the theories and methods of other scientific disciplines during their training. The pressure to study quickly and get a good exam grade with the precarious competitive and labor market situation is increasing. At the same time, the scope of the material to be practiced increases more and more (Bryde 2002, p. 214f.). It would make more sense to rely more on methodologically and interdisciplinary fundamental knowledge that enables lawyers to familiarize themselves with different legal professional fields independently (which is inevitable anyway) and to better understand the social and cultural implications of their work.

The legal-dogmatic monoculture caused by the system described is not limited to training. The legal training regulations determine the law faculties on the dogmatic teaching content. The consequence of this, in turn, is that the chairs are also mainly filled with dogmatically working scientists. Much less than in other disciplines, Humboldt's ideal applies in law, according to which teaching should follow research. Rather, the opposite principle works here: Research continues to follow state-determined teaching. [13] This is why the institutional situation for “frontier sciences” such as legal sociology is so difficult.

And since the faculties fear for the importance of their own work and, above all, for the future of their own offspring, the monoculture prefers to cultivate itself rather than venture into a fundamental educational reform. This is the only way to explain why some law professors are vehemently opposed to educational reform - although this would allow them much greater freedom in research and teaching.

3.2 Presence in teaching

So if we have to diagnose a crisis in the sociology of law, then it is to a large extent due to the framework conditions mentioned. There is no lack of academic interest in legal sociological and political issues. This can be seen not only in the considerable number of research projects in this area, which can be seen, for example, at the junior academy conferences (see Epp 2003), but also in the university courses. In 2003, Barbara Heitzmann published a study of courses in legal sociology at German universities. For the 2003 summer semester, it determined 37 events (mainly lectures) in 42 legal departments and 38 events (mainly seminars) in 52 departments of sociology on legal sociological topics in the broadest sense (Heitzmann 2003, p. 250f.). But she states just as clearly: "It almost seems as if the teaching of legal sociology at the two faculties ran alongside one another without any major points of contact" (Heitzmann 2003, p. 253). This also shows that there is a lack of actual interdisciplinary exchange. The sociology of law does exist in individual scientific initiatives, but not as an overarching research direction that would be able to - at least partially - overcome the disciplinary boundaries.

4. "Lessons learned"

The precarious development of the sociology of law was undoubtedly also brought about or at least reinforced by its own failures. Within the sociology of law, however, the opinions about where to look for one's own mistakes, what could or should have been done better and which future strategies can be derived from this are very different (cf. Machura 2002).

4.1 Legal sociology as a “critical” science

Stefan Machura thinks (and with him many others, for example Bryde 2000, p. 139) that one of the main reasons lies in the focus of early legal sociology research on the sociology of law and the accusation of class justice that has come out on the part of lawyers in this context had triggered some resistance against the sociology of law: "The fixation on classes and strata led the older Jusitz research ... into a dead end" (Machura 2001b, p. 294).

It should be borne in mind, however, that the critical orientation of early legal sociology gave many who were dissatisfied with the normative orientation of jurisprudence and were looking for explanations for social contexts and backgrounds an incentive to familiarize themselves with the social "reality" of the legal staff and the law deal altogether. That premature conclusions were drawn on the one hand may be regretted in retrospect, but in the politically charged climate of that time it is just as understandable as it can be explained on the other hand that the lawyers defended themselves against the criticism. “Anyone who treats a group as an object of observation and draws a picture that deviates from the self-image can expect rejection. … Self-images can have strategic and action-relevant significance for a profession, the destruction of which is seen not only as an offense but as a danger to its function, but they can also… prevent necessary adjustments and modernizations ”(Bryde 2000, p. 139f.).

We can assume that these statements by Brun-Otto Bryde apply to the legal status in post-war Germany even if we regard the accusation of class justice as exaggerated and judge it in a more differentiated manner today. But this much seems clear: critical thinking is inherent in the sociology of law when it deals with the social connections between law and society and with it - yes, necessarily! - questions legal self-portraits and normative certainties.

It is undisputed that many lawyers in post-war Germany were not prepared to ask critical questions of their own profession. At the time, no one could seriously expect the legal departments to embrace the social sciences right away. Controversy was inevitable. But: what would legal sociology be without these controversies? Klaus F. Röhl said in his farewell lecture in 2003: “Sometimes I have the feeling that [legal sociology] has lost its“ bite ”. I have always spoken out very clearly against a politicizing science. ... But that doesn't mean you shouldn't have strong political ideas and goals. On the contrary: the most interesting works always come from those who view the existing conditions critically, who are committed to a political goal and who speak the word about social change in the interests of justice ”(Röhl 2005, p. 1173).

Today, critical (societal) thinking is in demand again as a sharp scientific focus and a productive reformist force - precisely because the great political storms have subsided. Critical empirical research can also be found prominently in German-speaking legal sociology, for example in studies on the construction of social inequality through law and on the social selectivity of court decisions (Hiller / Welz 2000, p. 232) or in the sociological analysis of gender relations in law (see Lucke 1996 ).

4.2 Empirical legal research

If Stefan Machura continues to state that part of the legal sociological workforce has "always been used up by theory-free legal fact research" (Machura 1999, p. 332), then this criticism must be differentiated in two directions. On the one hand: The sociology of law in the broadest sense is a mainly empirical and in any case not a purely theoretical science. It wants to describe the social contexts and backgrounds, the social “reality” of law. In empirical research, it can meet this claim. The theory always needs empirical verification and correction if it does not want to fall prey to constructivism (worth reading: Rottleuthner 1992, p. 132 ff.).

On the other hand - this is what Machura is all about - parts of legal sociology had almost completely abandoned the reference to theory, i.e. (mis-) understood legal factual research as theory-free empirical research. Theory has a crucial function for empirical research: it puts the respective hypotheses and research questions in a superordinate context, offers interpretations and explanations and, last but not least, defines the specific research direction. “Social reality” is a complex state or process that can never be fully and precisely described. Every observer has to limit himself to individual questions. Depending on the interest in knowledge and the theoretical “glasses” with which a concrete empirical survey is carried out, different insights become visible. Legal discourses such as court proceedings can be examined in very different ways, e.g. against the background of certain theoretical approaches from the sociology of communication [15] as well as with the focus on class and gender theories. [16]

Dispensing with a theoretical foundation of empirical research was an essential factor in ensuring that normative jurisprudence retained primacy over questions and fact-finding. The empirical legal sociology had to be content with the function of an "auxiliary science" of the jurists without a socio-theoretical foundation - while the theoretical legal sociology hovered in the spheres of the social theory.

4.3 Legal sociology as hyphenated sociology

The division into a sociological-theoretical and a legal-empirical direction (cf. Machura 2001a, p. 41 ff.) Is only one of the many delimitations that have damaged legal sociology. Another is the sociological-disciplinary boundary: legal sociology was and is still (mis) understood by many as a special, hyphenated sociology, comparable, for example, to the sociology of religion or health. Scientists from other disciplines who legitimately deal with this label (so far) have not been able to identify enough with this label, even if they see clear references to their own research. [17]

The clear allocation goes hand in hand with an unnecessary narrowing of the disciplinary field of vision, which is limited to “sociology” and the theoretical approaches that predominate there, the sociological theories. In their inventory, Hiller / Welz state that in theoretical legal sociology, the focus was for a long time on the reception of classics such as Max Weber and the examination of the works of Habermas and Luhmann, while empirical research deals with other questions such as procedural justice and impact research. It was not until the 1990s that the theories were productively tried out in empirical research contexts (Hiller / Welz 2000, p. 232). Theoretically neglected areas they describe include legal anthropology, critical legal studies, feminist legal sociology and research on the globalization of law.

5. Legal Sociology and Law and Society

While legal sociology is currently in a difficult position in Germany, in the United States it is embedded in the broad framework of law and society research. Instead of “sociology of law” one speaks in a broader sense of “socio-legal studies”. The umbrella organization is the Law and Society Association (LSA).Although the scientific landscapes in the Federal Republic of Germany and the United States are known to be very different, it is worthwhile also from a comparative perspective to examine the developments in the law and society movement. However, this can only be done here as a rough overview. [18]

5.1 The Law & Society Movement in the United States: Beginnings and Institutional Development

In the USA, too, the new political situation in the 1960s, which was shaped by the civil rights movement and the fight against crime and poverty and against racial discrimination, favored the rise of social sciences at universities. The “law” was called into question as a classic means of control of the state (Garth / Sterling 1998, p. 456). From the sociological side in particular, there was an interest in dealing with questions of law beyond the formalism of traditional law schools. Many legal sociologists felt obliged to the legacy of legal realism, that movement of the 1930s, which was guided by rule skepticism and the opinion that law and the finding of justice could only be empirically researched and understood as the creations of judges (on this Röhl 1987, p. 53f .). At the congress of the American Sociological Association (ASA) in Montreal in 1964, the sociologist Harry Ball launched the initiative for greater networking and institutionalization of sociological legal research by inviting interested colleagues to breakfast. The group that gathered for this meeting consisted entirely of sociologists, with the exception of law professor Robert Yegge. Felice J. Levine describes her, hardly surprising for the time, as “white and male” (Levine 1990, p. 10). The founding fathers decided expressly - this is an essential difference to the development in Germany - against forming a sub-section of the ASA. Instead, it was decided to found an independent organization, the Law and Society Association (LSA). From the outset, this was designed to also address scientists from other disciplines, i.e. disciplines outside sociology and law (Levine 1990, p. 11). Disciplinary openness and diversity is one of the trademarks of the LSA today (Sarat et al. 1998, p. 3).

Sociology as a discipline already lost its independent interest in law at the end of the 1960s. Those social scientists who wanted to do research on law found their place at the law schools, where, as Garth / Sterling write, they entered into an alliance with lawyers working in legal sociology. In contrast to the development in Germany, there were only a few sociologists who developed sociological considerations on law based on sociology (Garth / Sterling 1998, p. 463). Instead, despite occasional disciplinary tensions, there was a productive collaboration between law and the social sciences on specific issues. Centers for law and society research have been set up at law schools at various universities, such as Berkeley; in addition, summer institutes were held regularly. Foundations such as the Russell Sage Foundation or the Meyer Institute, which funded legal sociological research projects and institutes, played a very important role in the development of these institutional structures (Garth / Sterling 1998, p. 461f.).

After the LSA had already held two nationwide colloquia in 1975 and 1978, annual meetings have been held regularly since 1979, at which the latest research is discussed in a large number of different panels and the participants network with one another. Since 1987, a graduate student workshop has been held in connection with the annual conferences, which is aimed specifically at young scientists and is part of a targeted promotion of young talent (Levine 1990, p.17).

In descriptions of the Law and Society movement, the importance of individual biographies and connections is repeatedly emphasized (see e.g. Munger 1998, p. 57 ff .; Garth / Sterling 1998, p. 410 f.). Many who later work scientifically in this field have a great interest in dealing with law at the beginning of their studies and are won over through specific research projects or through participation in courses or conferences for Law and Society. Lawyers joined the field mainly because they missed the intellectual and scientific challenge of their undergraduate courses in law school and wanted to deal with questions of law from different perspectives (Garth / Sterling 1998, p. 457). It is also crucial for the success of the movement that socio-legal studies are perceived as a largely independent field of research that is separate from both the social and legal sciences. In this respect, working with young people is of crucial importance. Garth / Sterling stated: “Many of those who came to LSA were the products of those who had already identified with LSA” (Garth / Sterling 1998, p. 465f.).

The LSA has always shown the courage to change and to promote the integration of new approaches and directions. In recent years and decades in particular, an increasing variety of disciplinary approaches and the involvement of younger scientists from a wide variety of areas can be observed. The proportion of women in this research area has increased considerably (Levine 1990, p. 17f.). In recent years, the LSA has tried to present itself more internationally and to network. Since 1991, meetings have been held outside of the USA approximately every five years, in which more than 1,000 scientists from different countries take part. [19] The next congress will take place in July 2007 at the Humboldt University in Berlin.

5.2 Thematic development

In his 1998 article "Mapping Law and Society", Frank Munger gave an overview of the diverse research landscape. In the early years, the focus was on judicial research with topics such as dispute processing, legal profession and legal institutions (Munger 1998, p. 28f.). It was not so much a question of questioning traditional dogmatics and legal theory, but of showing and empirically analyzing the gap between the normative claim of law and reality, legal reality. This basic stance, known as the “gap paradigm”, was consistent with the prevailing legal self-understanding that law and statutes as abstract regulations should apply equally to everyone and that the legal staff should ensure the rationality, formal equality and autonomy of the law in all cases to ensure (Munger 1998, p. 39 f.). As Munger notes, from the start, research was primarily empirically oriented towards specific questions and problems. Comprehensive socio-theoretical studies on law, as written in Germany by Luhmann and Habermas, had little influence (Munger 1998, p. 32f.). A classic that is still worth reading today and at the same time paradigmatic for the research of the time is Marc Galanter's contribution “Why the Haves Come Out Ahead” (Galanter 1974). In his study, Galanter shows how large companies use the advantages in litigation that are available to them as "repeat players" by, among other things, structuring the contractual conditions with a view to future processes and maintaining long-term contacts with the key institutions. A contribution that set standards in terms of method and content.

The legal-critical movement that emerged at a meeting at the University of Wisconsin in 1976 and became known as Critical Legal Studies (CLS) had a major influence on the further development of research. The leading representatives of the CLS turned against the basic assumptions of liberal legalism (“liberal legalism”) that “law” is objective and neutral and affects all people equally (Minda 1995, p. 106 ff.). Martha Minow, a feminist legal scholar, sums up the commonalities of this movement in four points: (1.) Critical jurisprudence assumes that legal terms and dogmatics are indeterminate and can be used to produce different, contradicting results produce. (2.) You try to use historical, cultural and socio-economic analyzes to show how different interest groups, social classes or certain economic institutions benefit from legal decisions. (3.) They show how legal arguments and discourses legitimize their own results and exclude other conceptions and identities. (4.) They pursue a political claim by actively campaigning for new interpretations of regulations and legal principles (quoted from Minda 1995, p. 108).

With their far-reaching theses, the CLS met with rejection and incomprehension not only in traditional law schools; Even in the Law and Society movement itself, its skeptical and decidedly political stance sparked controversy. Nevertheless, their attack on the formal liberal legal dogmatics had a lasting effect. From then on, postmodern and critical theoretical approaches gained more and more importance (cf. Munger 1998, p. 36). Increasingly critical questions were asked, for example about the formation and order of identities such as “race” or gender through “law” (critical race theory, feminist jurisprudence; see Sarat et al. 1998, p. 5 f.).

In the course of a qualitative turnaround (Munger 1998, p. 43), research increasingly turned to interpretive theories that examine and describe law in a social context or as a social and cultural product. Legal culture and legal consciousness were popular as analytical terms. In terms of methodology, ethnology, historical studies, literary and cultural studies and psychology are increasingly being used today (cf. Munger 1998, p. 35f .; Levine 1990, p. 27f.). A development away from traditional research on effects and effectiveness towards an understanding of law as a cultural product that is (co-) constructed by actors and social behavior can be observed (Munger 1998, p. 53). Research of this kind - alongside the more traditional social science approaches - has meanwhile achieved considerable importance. A development that German sociology of law - not least because of its disciplinary narrowness - could not understand for a long time.

5.3 Law and Society as a success story

So if, against the background of local experience, we ask ourselves what - despite all the arguments and frictions - defines the success story (Levine 1990, p. 28f.) Of the Law and Society movement, I would like to emphasize the following points:

(1.) The Law and Society movement is characterized by the questioning of traditional and disciplinary boundaries; it is about a change of perspective compared to the prevailing normative-scientific treatment of “law” (Sarat et al. 1998, p.1: “nontraditional approaches”; Munger 1998, p. 27f .: “independent perspective”). Most scholars in this field are united by their critical stance towards “mainstream legal ideology” (Munger 1998, p. 23).

(2.) Despite the clearly empirically oriented research, the LSA has succeeded in conducting a fruitful inter- and multidisciplinary dialogue and integrating scientists from a wide variety of subjects into the field. The approaches in legal research (such as legal psychology, legal ethnology, political science, etc.), which are “marginalized” compared to traditional legal science, find the opportunity for joint scientific exchange and institutional networking under their roof. The various research directions within the LSA - quite unlike the sociology of law in Germany - succeeded in creating a kind of feeling of togetherness (“solidarity”) despite all the differences (cf. Munger 1998, p. 63f.).

(3.) In this context, the annual meetings are of particular importance. Current research is presented there and new initiatives and projects are launched. There is also a good opportunity to get to know each other better and to network scientifically (cf. Sarat et al. 1998, p. 3).

(4.) The last point to be emphasized here is the active promotion of young talent at the LSA, as it is carried out, for example, in the graduate student workshops and in special networks. In this way, young people are permanently won over for academic work in Law and Society research. This is all the more important because social science research on law is still rarely represented in normal law faculties.

5.4 Law and Society also in German-speaking countries?

While the US law and society movement has managed to network the various social science research on law under the umbrella of the LSA and thus institutionalize an overarching research movement, social science legal research in this country is divided into a multitude of disciplinary fields. Brun-Otto Bryde summarized this undesirable development very aptly as follows:

"The discussion about subject boundaries, namely the social-scientific processing of law in Germany ... has been weakened to this day by a fragmentation into small to very small groups (legal sociology, criminology, administrative theory, legal politics, legal psychology, etc.)" (Bryde 1998, p. 491) . "The broad access that the Anglo-Saxons take on our topic with terms such as" Law and Society "or" socio-legal studies "... is a fearful defensive definition of subject boundaries, in which the research into the politics of judges' appointments, legal politics, that of the judicial decision-making behavior, legal psychology, and the observation of everyday court life is clearly preferable to legal ethnology ”(Bryde 2000, p. 140).

If one applies the broader thematic scale of the Law and Society to the Federal Republic or the German-speaking countries, a much more diverse landscape emerges in social-scientific legal research than is represented by the classic legal sociology. The two conferences on interdisciplinary legal research, which were held in 2003 and 2005 by the Berlin Working Group on Legal Reality (BAR) in cooperation with the section and the association (see Epp 2003, pp. 254 ff. And the foreword and the Articles in this issue). Current research projects can be found at the various German-speaking universities and research institutions on the following topics, among others: law and governance [20], European integration and globalization research [21], legal ethnology and legal pluralism research [22], cultural studies legal research (e.g. law and media) [23 ], Ethnomethodology combined with legal theory [24], sociology of communication [25], critical approaches such as feminist legal theory or legal gender studies [26] etc. In contrast to the general sociology of law, criminology in this country has a much better institutional status. [27] It is also an important part of law and society research.

6 theses

In the following, I would like to set up a few theses on the future of legal sociology against the background presented and pursue the question of how legal sociology can possibly get back on the road to success. Some of the developments mentioned have already got underway in recent years.

6.1 Legal sociology as an interdisciplinary project

The sociology of law should break away from its existence as a hyphenated sociology and open up the different disciplinary perspectives that view law as a social and cultural phenomenon or examine the connection between law and society. In this sense, it is - as the editors of the Zeitschrift für Rechtsssoziologie have requested - to be understood as a transdisciplinary project (Bora / Höland / Jansen / Lucke / Machura / Ludwig-Meyerhofer / Teubner 2000, p. 315 ff.). This does not mean to join a certain epistemological fad. Rather, it is about the recognition that disciplinary approaches are necessarily contingent, that they are mutually beneficial in their pluralism and that they often contribute to a change or expansion of “one's own” professional field of vision.

While interdisciplinarity usually means concrete cooperation for a limited period of time, transdisciplinarity means that cooperation leads to an ongoing scientific systematic order that changes the subject and disciplinary orientations itself (Mittelstraß 2003, p. 9; see also Baer 2005).Such a permanent order could lie in the emergence of an open field of legal research that roughly corresponds to the Anglo-American Law and Society. This is not about the appropriation of certain research, that is, integration into the field of “legal sociology” (according to Röhl 1987) or “jurisprudence” (according to Hoffmann-Riem 1977 and 2004). Rather, it is about equal cooperation and networking across disciplinary boundaries, which is reflected, for example, in joint research projects and conferences and can also claim a place institutionally in the existing scientific structures.

If we want to describe this open field of legal research, then this necessarily leads to new delimitations. In the following, I would therefore not like to try to give a (final) definition, but rather approach the research area cautiously by describing its essential characteristics.

(1.) Law and Society research is open to all subject-specific approaches. It is precisely not a hyphenated sociology, but an interdisciplinary, ideally transdisciplinary project whose research interest and methodology is determined solely by the research subject, namely "law" in its social, cultural and political context. The aim is, if not overcoming, then at least questioning and redefining the traditional disciplinary and methodological boundaries - opening up new scientific perspectives (cf. Büchs 2004, p. 16).

(2.) On the other hand, it is not about socially informed legal dogmatics; a misunderstanding that is often encountered on the legal side. Connections to legal dogmatics, however, arise in many ways. On the one hand, for example, through sociological jurisprudence, which aims to make social science approaches within the legal sciences, for example in theory formation or in the concrete application of law, fruitful. On the other hand, through legal theory, which describes the processes of legal creation and application and is therefore also a decisive source of inspiration for intra-legal considerations.

So there is a smooth transition to legal theory. It differs from the sociology of law in the broad sense of law and society research only insofar as it is not only normative-theoretical (like legal philosophy at times), but also always related to reality. For a long time, legal philosophy and theory in the Federal Republic were based on philosophical hermeneutics, and later on analytical philosophy, logic and argumentation theory. It was not until the beginning of the 1970s that social science approaches began to attract more attention (cf. Neumann 1994). In the last few years there has been a shift in favor of sociologically based theoretical approaches which (often in connection with language theory) emphasize the “constructive” of law (an overview can be found in the anthology by Buckel / Christensen / Fischer-Lescano 2006) and increasingly also legal sociology Receive work (e.g. Christensen / Kudlich 2001).

(3.) Consequently, legal sociology in the broad sense is also historical, also theoretical and also philosophical - but not exclusively. Their intention to paint a realistic picture of the law, its social and cultural contexts, functions and dependencies, its connection to “(life) reality” remains its decisive characteristic and its strength. For this, it is dependent - in addition to all theory - on substantial empirical research (Blankenburg 2000; Rottleuthner 1987, pp. 1ff.).

6.2 Opportunities

Innovative scientific concepts and directions can, and may be convincing for many, only with difficulty prevail against the inertia of existing university structures. New disciplines are not simply formed according to scientific and qualitative criteria (because otherwise - there would be agreement on this - legal sociology would have a much better status today), but are crucially dependent on human and institutional resources within the scientific community. Even if legal sociology is currently going through a crisis situation, I would like to claim that the chances for legal sociology as an interdisciplinary project are not as bad as they seem at first glance. The extensive and inevitable reform processes at universities and research institutions are breaking up disciplinary encrustations and opening up new opportunities for interdisciplinary research.

In the competition of universities for excellence in teaching alone, good dogmatic compulsory training in accordance with the state training regulations alone cannot win too much. In the future, it should therefore be combined with a broader academic as well as a practical professional orientation in the main course. The justice ministers want to hold on to the state law examination and the subsequent traineeship training until further notice [28], but a further reduction in the compulsory subject matter in the course is foreseeable. After the last training reform of 2002 [29], the state examination portion in the dogmatic compulsory subjects is supplemented by a university portion: 30% of the examination is taken in so-called focus areas, which the teachers can organize independently according to their research interests. The focus areas also expressly serve to "convey interdisciplinary ... references to law" (Section 5a (2) DRiG). As part of the possible introduction of Bachelor's and Master's degrees (BA / MA) in the course of the Bologna Process, the interdisciplinary reference in legal training is expected to increase further. However, these reforms are still very controversial (see Jeep 2005). [30]

There is also movement in the research landscape, even if the framework conditions are not necessarily positive. Due to the under-funding of the universities, the basic funds for the chairs and institutes are being reduced more and more. At the same time, funds and personnel positions are approved on a project basis. Performance-related allocation of funds links the university (co) financing to the scientific output, e.g. successfully evaluated research projects, publications, assuming teaching duties and promoting young talent. External funding increasingly relies on subject-related and interdisciplinary research, for example through special research areas. Overcoming obstructive disciplinary boundaries and “interdisciplining” science has become an essential goal of research funding. [31]

These conditions are not at all unfavorable for legal sociology in the broad sense of law and society research - it is used to proving its scientific relevance time and again through successful research projects and a high degree of interdisciplinary exchange. It must now play to its strengths, which lie in its innovative scientific potential, its theoretical but at the same time empirical orientation and a broad interdisciplinary network. Legal sociology has always been an interdisciplinary science par excellence, concrete research questions abound and the urge to open up legal teaching and research to other disciplines within a certain framework is clearly noticeable. The sociology of law should use the newly gained freedom.

7. What remains to be done?

At this point I do not want to give any definitive suggestions or recommendations for action, but in the summary of my article I would like to point out a few points that seem important to me. In the broad sense of Anglo-American law and society research [32], legal sociology should in future become visible as an interdisciplinary project and as a scientific movement. As I said, it is not a question of absorbing interdisciplinary legal research in the field of legal sociology (the main feature of which is the empirical consideration of law, legal reality, remains). Rather, it is about institutionalization and networking across disciplinary boundaries. The two junior conferences on interdisciplinary legal research and the international conference of the LSA 2007 in Berlin are a good start. In the future, regular conferences and meetings should also take place in German-speaking countries, at which scientists from different disciplines can exchange and network about their research on law. Here, legal sociology with its associations, its interdisciplinary network and know-how can take on an important initiating and coordinating function. In addition, legal sociology should increasingly focus on promoting young researchers and interest young scientists in particular in legal sociological issues and projects. The focus areas and interdisciplinary courses offer the opportunity to better emphasize legal sociological topics in teaching and studying. In addition, the sociology of law should rely on external funding for research projects and scientific institutions and thus undertake a new attempt at its long-term institutionalization.


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[1] "Legal sociology on the border" (Bora / Höland / Jansen / Lucke / Machura / Ludwig-Meyerhofer / Teubner 2000). Of course, the article cannot shed light on all developments and events and, like almost every historical presentation, is in parts selective and necessarily subjectively shaped (other presentations can be found in Bender 1994; Raiser 1998; Rasehorn 2002; Röhl 2005).

[2] Which does not mean, however, that the statements about the social composition of the legal profession were per se wrong; only the further conclusions on a "class justice", i.e. a decision-making practice shaped by class interests, were not tenable in their generality (see Bryde 2000, p. 141 ff.).

[3] The first issue of the magazine appeared in September 1980 (Rasehorn 2001, p. 283f.).

[4] For example, the well-known study by Rüdiger Lautmann (1972) obtained from participatory observation.

[5] The names mentioned are now again among the "classics" of law and are accordingly often dealt with and / or cited in scientific articles.

[6] In contrast, there were and are only a few academics in the social science departments of German universities who work primarily in legal sociology (see Röhl 1987, p. 61f.).

[7] So the self-description http: // under (09.2006).

[8] Oral, board meeting of the Association for Legal Sociology on November 11, 2005 in Berlin.

[9] For example, the chair for legal sociology and legal philosophy at the Ruhr University in Bochum was dissolved on July 31, 2003 when Klaus F. Röhl retired. Following the retirement of Albrecht Hesse and Otwin Massing, there is only one chair with a legal sociological denomination at the University of Hanover. At the Humboldt University of Berlin, Thomas Raiser's chair was dissolved and its specialist orientation was completely redesigned. These are just some examples.

[10] Bryde (Giessen), Depenheuer (Cologne, legal policy), Haffke (Passau), Hassemer (Frankfurt), Hoffmann-Riem (Hamburg, law and innovation), Jost (Bielefeld), Keller (Hamburg), Morlok (Düsseldorf) , Neumann (Frankfurt), Nocke (Hanover), Poscher (Bochum), Rottleuthner (FU Berlin), Singer (HU Berlin). However, the official denominations do not always provide information about the actual research focus.

[11] Criminology was not taken into account. An overview of the existing criminological chairs in Germany can be found at (09.2006). There are currently over 30.

[12] A significantly higher level of participation can usually be recorded at the major congresses of the DGS, where the Legal Sociology Section regularly offers its own workshops and plenary events, including jointly with other DGS subsections.

[13] The textbook (un) wesen is a significant consequence of this. For example, students today can choose between around twenty (!) Different textbooks on the general part of criminal law that have been published in the last ten years; This does not even include the large number of revision scripts. Many textbooks are updated at shorter intervals and filled with new case law and literature. Even if the books prepare the material in different degrees of detail and with different scientific or didactic demands; the topics and decisions dealt with are almost identical. So it happens that very few law students have ever dealt with the social backgrounds and causes of delinquency and the social and cultural functions of punishment (I'm not talking about the usual theories of the purpose of punishment!). But they are very familiar with the problem of causality and the "king of cats" case.

[14] The German Law Faculty Conference has repeatedly spoken out in favor of the state examination and against making the course more flexible, see resolutions DJFT 2005 / I, Item 5 and DJFT 2004 / II, Item 6, at http: //www.jura.uni (09.2006).

[15] Cf. the project “Comparative Microsociology of Criminal Proceedings” led by Thomas Scheffer at the Free University of Berlin, (09.2006).

[16] Cf. the research seminar "Gender," Race "and Class in Legal Proceedings", which was held in the summer semester 2006 at the Humboldt University in Berlin; (09.2006).

[17] See the survey in the context of the young talent conference 2005 at (09.2006).

[18] It is also necessary to dispense with a description of developments at the European level. Above all, the activities of the International Institute for Legal Sociology in Oñati (Spain) should be mentioned here. This was founded in 1989 by the International Sociological Association (Research Committee on Sociology of Law) together with the government of the Spanish province of Euskadi (Basque Country) in the former university town of Oñati. Among other things, international master’s courses in sociology of law are offered there, see (09.2006).

[19] The previous international meetings took place in Amsterdam (1991), Glasgow (1996) and Budapest (2001), see; on the 2007 conference in Berlin, see (09.2006).

[20] See for example the Collaborative Research Center “Governance in Areas of Limited Statehood” at the Free University of Berlin, (09.2006).

[21] See the newly established interdisciplinary graduate college "Constitution beyond the state - From the European to the global legal community?" At the Humboldt University in Berlin, at (09.2006).

[22] See the project group “Legal Pluralism” at the Max Planck Institute for Social Anthropology in Halle (Saale), (09.2006).

[23] See for example the conference “Bildregime des Rechts”, which took place on November 25, 2005 in the Akademie Schloss Solitude, at (09.2006). See also the DFG project “Cultivation Effects of Justice and Lawyer Films and Court Shows” at the Ruhr University in Bochum, at (09.2006).

[24] See the research project “Law as Social Practice” at the University of Düsseldorf (on the subject: Morlok / Kölbel / Launhardt 2000, p. 15 ff.).

[25] See the DFG-funded project “Comparative Microsociology of Criminal Proceedings” at the Free University of Berlin, (04.2006).

[26] In Germany, for example, Susanne Baer, ​​; Ute Sacksofsky,; Konstanze Plett,; (legal sociology) Doris Lucke,; in Switzerland including Andrea Maihofer,; Christa Tobler,; Michelle Cottier,; in Austria including Elisabeth Holzleitner, (09.2006).

[27] An overview is provided by (09.2006).

[28] According to the minimum consensus of the Justice Ministers' Conference of November 17, 2005, at (09.2006).

[29] Law on the Reform of Legal Education of July 11, 2002, Federal Law Gazette 2002 I, p. 2592.

[30] See also the report "The Bologna Process and its possible effects on legal training", which was presented to the Justice Ministers' Conference in autumn 2005, at / (09.2006).

[31] The German Research Foundation (DFG) names interdisciplinarity alongside internationality, application relevance, promotion of young researchers and sustainability as a decisive criterion for project funding, see (09.2006).

[32] Whether one would like to adopt the terms “law and society” for local research is a secondary question.