Who Needs the Classics? - On the Relevance of Classical Legal Sociology for the Study of Current Social and Legal Problems
September 3, 2012
RETSSOCIOLOGI, Ole Hammerslev, Mikael Rask Madsen, eds., Copenhagen: Hans Reitzels Forlag, 2012
What do we gain from labeling certain norms of social organization law? This question provides the backdrop against which this chapter will examine the works of Leon Petrażycki and Eugen Ehrlich, two of the founders of legal sociology who devised concepts of law broader than state law. In the course of this examination we shall also assess the relevance of Petrażycki’s 'intuitive law' and Ehrlich’s 'living law' to contemporary legal sociology. The chapter starts by describing the academic and political contexts in which these classical theories were born, before examining their imprint on empirical research. The second half of the chapter brings into focus the potentially romantic element of these ideas, arguing that Petrażycki and Ehrlich’s theories, which were initially intended as alternatives to legal positivism, lend themselves to romantic quests for the spirit of a community lost in the rise of modernity. In the final part of the chapter these theories are used to explore the Chinese business practices known as guanxi, in order to exemplify how “living law” and “intuitive law” may be employed in socio-legal research. It also shows how these classical ideas can be developed through confrontation with the empirical conditions of global law and trade. The paper concludes by arguing that a great deal of contemporary legal sociology (and legal theory, for that matter) remains embedded in the paradigm of early modernity, as articulated by legal theorists at the end of the nineteenth and the beginning of the early twentieth century. A study of classical debates and ideas will allow us to identify how the epistemic assumptions and disciplinary identities of legal sociology and legal theory were shaped and the extent to which they continue to inform socio-legal research today. This will, in turn, help to construct a platform from which to examine the constraints imposed on our theorizing by early modernity, some aspects of which have undergone transformation with the rise of globalization.
Number of Pages in PDF File: 32
Keywords: Ehrlich, Petrażycki, Kelsen, living law, intuitive law, legal positivism, legal pluralism, episteme, guanxi, business, network, China, community, modernity, socio-legal.
JEL Classification: K1, K2, K3, K4
Date posted: September 5, 2012