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Can Legal Sociology Account for the Normativity of Law?

Banakar, Reza LU (2013) In Social and Legal Norms p.15-38
Abstract
This paper challenges the assumption that legal sociology should apply itself to the external or factual properties of the law and leave the internal and normative aspects of legal phenomena to doctrinal scholars and moral philosophers. It argues that legal sociology explores the normative contexts of the law and other social systems, but being restricted by its “scientific” mode of expression it describes and analyses them in sociological rather than moral terms. Legal sociology is, and should be seen as, a different language game than moral and legal philosophy, and its treatment of normativity should be understood on its own terms. The assertion that legal sociology should limit its scope of analysis to the study of the empirical... (More)
This paper challenges the assumption that legal sociology should apply itself to the external or factual properties of the law and leave the internal and normative aspects of legal phenomena to doctrinal scholars and moral philosophers. It argues that legal sociology explores the normative contexts of the law and other social systems, but being restricted by its “scientific” mode of expression it describes and analyses them in sociological rather than moral terms. Legal sociology is, and should be seen as, a different language game than moral and legal philosophy, and its treatment of normativity should be understood on its own terms. The assertion that legal sociology should limit its scope of analysis to the study of the empirical aspects of law and leave the study of law’s normative dimensions to other branches of legal studies is itself a normative supposition and part of the competing discourses which constitute the field of legal research. These discourses aim at demarcating the disciplinary boundaries between various epistemic approaches to the study of law and creating disciplinary identities rather than exploring the methodological scope of socio-legal research.



Part One starts by briefly considering the relationship between norms and normativity, arguing that normativity is generated by system as well as lifeworld and is not necessarily reducible to the effects or functions of individual norms. Part Two develops this point by making a case for justice as law’s source of normativity par excellence. It maintains that although the relationship between law and justice is often discussed in terms of norms, the normativity that justice exercises on law is dependent on the broader context of the legal system, which is defined differently by different theories. Part Three draws attention to the methodological constraints of socio-legal research, according to which social scientific studies of law should apply themselves to the external empirical or factual properties of the relationship between law and society and leave the internal and normative matters to doctrinal scholars and moral philosophers, respectively. The paper concludes by arguing that the sphere of socio-legal research is not, and cannot be, limited to an examination of the factual characteristics of law. Moreover, the assertion that legal sociology should apply itself to the study of the empirical aspects of law and leave the normative dimensions to other legal scholars is a normative stance and part of on-going attempts at demarcating the disciplinary boundaries of various branches of legal studies. (Less)
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author
organization
publishing date
type
Chapter in Book/Report/Conference proceeding
publication status
published
subject
keywords
positivism, epistemology, ontology, methodology, socio-legal, sociology, justice, law, value, normativity, norm, empirical research, discipline
in
Social and Legal Norms
editor
Bier, Matthias and
pages
15 - 38
publisher
Ashgate
external identifiers
  • wos:000341298500003
  • scopus:84938718102
ISBN
978-1-4094-5343-7
language
English
LU publication?
yes
id
6c55f1b3-8060-403b-95cd-e91bdd89a69c (old id 3632155)
alternative location
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2229241
date added to LUP
2013-04-10 08:12:40
date last changed
2017-01-01 07:58:21
@inbook{6c55f1b3-8060-403b-95cd-e91bdd89a69c,
  abstract     = {This paper challenges the assumption that legal sociology should apply itself to the external or factual properties of the law and leave the internal and normative aspects of legal phenomena to doctrinal scholars and moral philosophers. It argues that legal sociology explores the normative contexts of the law and other social systems, but being restricted by its “scientific” mode of expression it describes and analyses them in sociological rather than moral terms. Legal sociology is, and should be seen as, a different language game than moral and legal philosophy, and its treatment of normativity should be understood on its own terms. The assertion that legal sociology should limit its scope of analysis to the study of the empirical aspects of law and leave the study of law’s normative dimensions to other branches of legal studies is itself a normative supposition and part of the competing discourses which constitute the field of legal research. These discourses aim at demarcating the disciplinary boundaries between various epistemic approaches to the study of law and creating disciplinary identities rather than exploring the methodological scope of socio-legal research.<br/><br>
<br/><br>
Part One starts by briefly considering the relationship between norms and normativity, arguing that normativity is generated by system as well as lifeworld and is not necessarily reducible to the effects or functions of individual norms. Part Two develops this point by making a case for justice as law’s source of normativity par excellence. It maintains that although the relationship between law and justice is often discussed in terms of norms, the normativity that justice exercises on law is dependent on the broader context of the legal system, which is defined differently by different theories. Part Three draws attention to the methodological constraints of socio-legal research, according to which social scientific studies of law should apply themselves to the external empirical or factual properties of the relationship between law and society and leave the internal and normative matters to doctrinal scholars and moral philosophers, respectively. The paper concludes by arguing that the sphere of socio-legal research is not, and cannot be, limited to an examination of the factual characteristics of law. Moreover, the assertion that legal sociology should apply itself to the study of the empirical aspects of law and leave the normative dimensions to other legal scholars is a normative stance and part of on-going attempts at demarcating the disciplinary boundaries of various branches of legal studies.},
  author       = {Banakar, Reza},
  editor       = {Bier, Matthias},
  isbn         = {978-1-4094-5343-7},
  keyword      = {positivism,epistemology,ontology,methodology,socio-legal,sociology,justice,law,value,normativity,norm,empirical research,discipline},
  language     = {eng},
  pages        = {15--38},
  publisher    = {Ashgate},
  series       = {Social and Legal Norms},
  title        = {Can Legal Sociology Account for the Normativity of Law?},
  year         = {2013},
}