1.

Legal theory and sociology of law

Joxerramon Bengoetxea

INTRODUCTION – SOCIOLOGICALLY INFORMED

JURISPRUDENCE
Sociology of law and jurisprudence (the general theory and the philosophy of law) are in
uneasy tension. Sociological accounts of law as an institution provide legal practice and
legal theory with insight into law’s social processes, and the social sciences help jurispru-
dence examine if its assumptions are grounded in the reality of law (Galligan 2006, 18).
Yet despite socio-legal scholars’ endeavours to integrate legal and sociological ideas, law
and sociology remain apart. Sometimes these disciplines ignore each other, somewhat
minding their own business. Banakar (2009, 71) wonders why prominent philosophers of
law, such as Dworkin, regard sociological and historical studies of law, which view the law
externally as ‘perverse’, while failing to recognize that internal studies of the law which
ignore questions about the social properties of the law and the external manifestations
of the law are also ‘impoverished and defective’. Sometimes, however, sociology of law
and jurisprudence communicate and rely on each other. This chapter explains the ten-
sion, finding a different approach to the is/ought distinction in each discipline. To even
out that tension, law is understood, following MacCormick (2007), to be a process of
institutionalised normative communication, and institutional theory of law is proposed
as the conceptual starting point for the sociology of law.
Kornhauser (2017) identified five components that any comprehensive theory of law
should provide: first, the nature of law, distinguishing law both from other normative sys-
tems such as morality and religion, and social conventions such as etiquette, but also from
other domains of practical reason, utility, coercion, interests, power and politics; second,
the grounds of law, the conditions for a proposition of law to be true or valid; third, the
nature of the reasons for action that law provides; fourth, the value of legality; and fifth,
a normative theory of adjudication, a theory of how judges ought to decide cases. This
chapter deals with these five components. Sociology of law will complement the first
and third and provide empirical counterpoints to the fourth and fifth components, while
neglecting the second item as idealistic1 or not realistic. Indeed, ‘a realistic theory of law
is built on observations about the past and present reality of law rather than on intuitions,
thought experiments, musings about all possible worlds, claims about self-evident truisms,
and other non-empirical modes of analysis frequently utilized by analytical jurisprudents’
(Tamanaha 2017, 2).

1
This neglect of legal idealism frees sociologists from making assumptions about the sources
of law and the nature of legal reasoning, enabling them to identify the sources of law in social
formations and associations which have come about and exist independently of the state and to
adopt a bottom-up and critical perspective on law, regarding social interactions and relations and
perceptions of the law as the primary focus of their study (Banakar 2009, 66).

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8  Research handbook on the sociology of law

Tamanaha claims ‘law involves multiple social-historical phenomena that have taken
on different forms and functions in different times and places and, therefore, cannot be
captured by a singular definition of law’ (2017, 38). While accepting the diversity of legal
phenomena and even embracing (a mild form of) legal pluralism, this chapter takes up
his challenge in order to defend a ‘singular definition of law’ as an institutional normative
order and as a suitable conceptual approach to law, valid for both jurisprudence (general
theory and philosophy of law) and sociology of law across cultures and history, and
thus universally applicable although, admittedly, my sources are mostly European. This
approach to the theory and sociology of law, sketched by the late Neil MacCormick in
2007, takes the norm-user’s perspective and is ‘realistic’, without outright rejecting law’s
dual nature (Alexy 2010).
Exploring the conceptual foundations for sociologically sound jurisprudence, and
inspired by neighbouring sub-disciplines like the sociological theory of law or sociologi-
cal jurisprudence,2 this chapter puts forward an institutional theory of law that accounts
for the wealth of legal phenomena and provides a working concept of law for sociology.
It discusses key issues in the tension between sociology of law and jurisprudence and
revisits the is/ought distinction as it applies to sociology and jurisprudence, consider-
ing legal norms and processes as the institutional elements to test the two disciplines
(Ferrari 2006, 72). Norms operate in communicative spaces, sometimes monolingual
sometimes multilingual, as patterns for action that influence peoples’ expectations,
social actions and the settlement of social conflicts. Sociology of law thus contributes to
jurisprudence, distinguishing law from other normative systems and legal norms from
other types of norm.

NORMATIVITY IN SOCIOLOGY OF LAW

AND IN JURISPRUDENCE

This section discusses the tension between sociology of law and jurisprudence; the is/
ought divide as it applies to sociology and theory of law and a minimal working concept
of law and legal norms as distinct from other normative systems or other types of norm.
Normativity is expressed through norms, institutions and processes and, while semiotic
understandings of normativity see norms operating in communicative spaces, sociological
understandings see them as patterns for action that influence peoples’ expectations, social
actions (behaviour) and the settlement of social conflicts. These descriptive-interpretative
approaches contrast with internal legal discourses; at best analytical or hermeneutic, at
worst dogmatic or doctrinal.

2
Sociological jurisprudence, linked with the sociology of law, is from an earlier date than the
Law and Society movement. It is interested in legal theory and legal education and views the law
as experienced by legal practitioners and actors. Ehrlich, Gurvitch, Petrazycki and Pound called
on legal research, legal education and judicial decision-making to adopt the methods and insights
of social sciences to amend the conceptual formalism of analytical jurisprudence and its neglect
of empirical facts, and of the role of social forces in creating the legal order and shaping legal
behaviour (Banakar 2009, 67–8).

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 Legal theory and sociology of law  9

Is and Ought in the Sociology and Theory of Law

The separation of sociology of law and jurisprudence as disciplines is largely based on the
is/ought distinction; facts and values (norms) being separate dimensions. Enlightenment
philosophers David Hume and Immanuel Kant warned of the categorical mistake in
deriving an is from an ought or an ought from an is; a naturalistic fallacy (Moore 1903, 13).
Along this radical separation of experience domains, the sociology of law would be
concerned with is and jurisprudence with ought. The analytical jurisprudence of legal
positivists has become increasingly abstract, specialized and narrow, disregarding social
theory or history (Tamanaha 2017, 2) – disregarding the is. Legal positivism, like natural
law, avoids discussing the constitution of the ‘social’ (Banakar 2009, 60). For positivist
jurisprudence, is and ought are radically and rigidly apart (Zagrebelsky 1995, 118). Thus,
Hans Kelsen (1911) adopted a transcendental theory of legal norms on the basis of a
chain of validity that ultimately relied on a hypothetical ought, the Grundnorm. But in
order to study the ought scientifically, as an is, norms were treated as normative proposi-
tions. Sociology was a disturbing noise in his pure theory of norms; as elements belonging
to the factual sphere, the human activities generating law are the concern of sociology and
have no part to play within a ‘pure’ theory of law (Delacroix 2006). Equally aware of the
fallacy, Vincenzo Ferrari, a prominent professor of sociology of law, recently warned that
the danger of functionalism lies in confusing is and ought (Rivaya 2019).
By contrast, sociology of law tends to bridge and blur the is/ought distinction. Niklas
Luhmann (1972) developed a sociological theory of the legal system on the basis of
the binary category recht/unrecht (lawful/unlawful) as they operate in society, seen as
a network of systems and acts of communication having social meaning. Norm-based
thinking is a method through which law distinguishes itself from non-law, deciding cases
on an all or nothing basis, which in principle leaves little or no space for general moral
or sociological considerations. But norm-based thinking is also a communicative process
through which the norms are interpreted and applied in various social contexts (Luhmann
1985). Here, is and ought are in permanent dialogue.
This method or approach reflects law’s attempt to integrate, rationalize and confine
complex social processes to the conceptual boundaries of legal norms. Law is a highly
rationalized rule-based activity; a system of rules, norms, decisions, doctrines and princi-
ples designed to guide action, enable legal analysis, and justify decisions in an ‘objective’
manner. This image of law pervades juristic discourses and creates the cornerstone of
a legal education devoted to the reading of cases and law reports, and searching for,
interpreting and applying legal rules (Banakar 2009, 60). Jurisprudence and sociology
of law could very well take each other’s teachings and perspectives into account and
use ‘sociology’s looking glass to see beyond the self descriptions of law and the legal
profession’ (Banakar 2009, 64). But this is rare. This separation of sociology of law and
jurisprudence as disciplines has as much to do with academic competition and fields of
research, the construction and distribution of ‘scientific stakes’ in academia (Bourdieu
1975); as with epistemic conflicts, their respective theoretical make-up is the way they
approach the is/ought divide.
Legal positivism tries to provide an adequate, internal account of law as it is, in contrast
to how law ought to be; this being the interest of natural law. But positivism aims at grasp-
ing the is analytically, by clarifying the basic concepts and frameworks through which we

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10  Research handbook on the sociology of law

observe, describe and understand law, rather than through an empirical investigation of
the practices and experiences of those who produce and reproduce the law and its institu-
tions. It deliberately ignores the life of the law and treats normativity as its data: Kelsen’s
pyramid-shaped legal system based on the chain of validity of legal norms (Kelsen 1960)
is the climax of a positivist legal science that avoids the naturalist fallacy all the way to
the Grundnorm, and pretends to be scientific, a genuine Rechtswissenschaft (Jung 2020).
In natural law as well, at least in the most systematic and coherent versions of iusnatu-
ralism, ‘no value can be deduced or otherwise inferred from a fact or set of facts’ (Finnis
1980, 66). Finnis’ system of values and rights generates an order or system in the face of
value-pluralism and social co-ordination problems by the ‘induction’ of indemonstrable
first principles of practical reason (that is, of natural law), like the principle that truth is
worth pursuing (Finnis 1981, 268). The ‘natural law method’ of working out the (moral)
‘natural law’ from the first (pre-moral) ‘principles of natural law’ also aims to respect the
is/ought divide and reinforces the claim to the autonomy of the law (Finnis 1980, 102–3).
By contrast, legal realism, critical legal studies or alternative use of law have shown
some interest in the ways normative structures are created and recreated, enacted and
reconstructed and, in their relation to conflict and power, they have bridged the is/ought
divide.3 Sociology of law, by title, by birth and by definition, dissolves this divide, and
thus potentially clashes with the modern Kelsenian philosophy of law, but the concept of
norms helps them to conflate.

The Sociolegal Concept of Norms

The concept of norms is accepted within both the prescriptive legal field and the descrip-
tive social sciences (Hyden and Svensson 2008, 137). Norms can be seen as objects, data
containing messages – speech acts – about what ought to be. Norms are individuals’
understanding of surrounding expectations regarding their own behaviour, so that when
an individual’s attitude deliberately conforms to the norm we can infer that the norm
has been internalised by the individual. Action in conformity (or not) with the norm has
cognitive, volitional and behavioural components.
Sociology of law explains normative structures from their factual (empirical) context.
Durkheim avoided breaking Hume’s law by claiming that social facts such as legal norms
are things or data, a realm of the is. For Durkheim, norms are facts that can be studied
as they interact with other facts in society. They are data that can be viewed through their
signs. In that sense they are objective and external: they exist in a social context and are
socially reproduced, whereas the ought is linked to an individual, internal level of the
person and falls outside any sociological or social analysis. Thus, as norms bear features
of both the ought and the is, Hyden and Svensson claim that, through norm analysis, we
can derive the ought of the legal system from the is of society (2008) – a Durkheimian
claim.
For Durkheim the model or representation that society (the group) imposes on an
individual about due and expected behaviour (what ought to be done) is a social fact.

3
American legal realists are ‘acknowledged as forerunners of the Law and Society Movement,
Socio-Legal Studies and other empirical approaches’ (Twining 2019, 165).

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 Legal theory and sociology of law  11

Guiding human conduct is what norms do as a form of communication, and this is a

social phenomenon that works as a norm for norm-givers and norm-users, and for those
engaged in the language game of normativity (Wittgenstein 1953, 23), but appears as a
fact for the external observer as a given, as données or data: the conducts of the users, in
conformity with the norms they recognise, are facts to the observer (Perrin 1990). This
transpersonal recognition of the norms is linked to the development of the feeling of
justice, Piaget’s development psychology, to be found in all domains of practical reason.
The social norm is that which is recognised as just or fair in a social group. For Weber
too, the norm is an instrument of communication that becomes a mental representation
as a consequence of a process of socialisation. The norm addressee receives the normative
message and recognises the norm in the message: the expectation of due behaviour it
contains becomes the object of the norm.
‘One cannot play bridge without knowing and accepting the rules of bridge’ (Perrin
1990, 134). The game of bridge has an institutional reality by reference to the norms
that regulate the game. Existence is not brute or physical, as in paper cards with figures,
numbers, colour or ink markings, but rather institutional. Legal and social institutions
are also institutional facts. Searle’s idea of institutional fact (1969) revisits the ontology
of norms, a domain of reality, a language game that only makes sense by reference to
norms that constitute that reality. Physical facts and relationships are then understood as
humanly meaningful, imputable to shared human norms of conduct (MacCormick 2007,
31). Unlike natural entities, social entities such as institutions are mind-dependent. For
example, the fact that a five euro bill is money and not merely paper depends on the col-
lective belief that it can be used as a medium of exchange and on rules that constitute their
value and regulate their operation. By contrast, a molecule of water is water irrespective
of anyone’s belief (Searle 2010).
In this sense, all norms recognised by a given group in a given domain constitute a
system and the norm’s belonging to that system, structured in institutions fulfilling
some social or legal function, is one of the explanations of the reinforced feeling of the
duty to obey, which is consequential to the fact that the rule is accepted as being part of
that order or system (Perrin 1990, 136). In other words, ‘the system, once accepted by
participants, commits them to acceptance of facts within the system’, maybe not of all
the norms belonging to that system, but of the system as a whole (Searle 2010, 102–3).
It will be precisely this fact, obedience or acceptance that will integrate one of the most
influential positivist definitions of law, one that focuses on the law giver and the sovereign
rather than that of law users. The view of law as the commands of the sovereign backed
by sanctions is one of the dominant versions of legal positivism. Austin’s ‘main idea, that
law is a matter of historical decisions by people in positions of political power, has never
wholly lost its grip on jurisprudence’ (Dworkin 1986, 4). Its simplicity attracts practition-
ers and academics alike. In a nutshell, the command is the expressed wish that something
be done, laid down by a sovereign who receives habitual obedience from the bulk of the
population, and who has the ability to impose an evil or a sanction if that wish is not
complied with. The ‘sovereign’ is a person (or determinate body of persons) who receives
habitual obedience from the bulk of the population, but does not habitually obey any
other (earthly) person or institution (Austin 1832; Bix 2018). Here, jurisprudence draws
from sociologically observable facts, and sociology depends on internalised norms or
expectations. The is/ought divide fades away in Austin.

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12  Research handbook on the sociology of law

The Sociological Dimension: The External and Internal Point of View

The sociological dimension of legal theory is taken for granted in three elements of
Austin’s definition: (i) the sovereign – one who receives habitual obedience from the bulk
of the population and does not habitually obey any other earthly person or institution;
(ii) the sovereign’s ability to impose an evil; and (iii) the possibility of ascertaining whether
the wish or the command is complied with or not. The three are external factors that
call for an empirical enquiry: does a given person or an institution, as a matter of fact,
receive habitual obedience? How and where is this obedience identified or observed? How
much of the population makes the bulk of the population? What is the nature of non-
compliance with the commands of the sovereign, considering possible conflicting sources
of popular consciousness?4 Who certifies non-compliance and how? How is the system of
evil operated by the sovereign? These questions deal with external regularities and should
call for an empirical enquiry, but they also have an internal dimension and exploring it
calls for a qualitative methodology.
As Hart observed (1961, 55), the habit of obedience, the regular uniform behaviour,
which an observer could record, is the external aspect of a rule. But Austin’s definition
makes several theoretical and conceptual assumptions about the internal aspect as well;
the reason to obey is the fear of the sanction – the imposition of sanctions is sufficiently
credible to the bulk of the population to ensure compliance. These assumptions involve
the internal point of view of the population: people avoid evil; people will comply in
order to avoid evil; people believe that the infliction of evil is a credible scenario in case
of non-compliance; and people believe that non-compliance will not go unnoticed, so
they had better comply. The identification of these internal factors also calls for an
empirical enquiry, but not of the type that looks into regularities and correlations. The
meaning and opinions about the law, people’s reasons to follow or break the law and
legal consciousness need to be explored. Max Weber built on the idea of coercion (the
sanction) and on the meaning of following a rule, upon which HLA Hart developed
the internal point of view. Lacey (2004) recalls that Hart was indebted to Weber for his
internal account of legal rules and had read Economy and Society, but never acknowl-
edged his debt.
Weber’s sophisticated definition of the state echoes Austin’s view of the sovereign’s
ability to impose an evil. For Weber (1978, 904), the state (successfully) ‘claims the
monopoly of the legitimate use of physical force within a given territory’. For Searle
too, the feature distinguishing government (state) law from other social institutions is
the constant threat of physical force (Searle 2010, 171). Under the coercive views, law is
to be found in the commands of the sovereign (Austin) or in the conditions under which
physical force can be used legitimately in a territory, in a logically clear and internally
consistent, gapless system of rules governing all conceivable fact situations (Weber 1978,
656), or in the rights and guarantees that citizens have as protection from such use of

4
For Eugen Ehrlich (1936), living law emerges from different social groups, and in each of
these groups psychological pressure is exerted on individuals to comply with the norms of the
group (Hertogh 2009).

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 Legal theory and sociology of law  13

force. Indeed, for Dworkin, ‘law insists that force not be used or withheld, no matter how
useful, beneficial or noble the ends, except as licensed or required by individual rights
and responsibilities flowing from past political decisions about when collective force is
justified’ (1986, 93).
Taking a distance from coercive views, Hart explored The Concept of Law (1961)
and found the grounds of law in the acceptance by the community as a whole of a
fundamental master rule of recognition that assigns to particular institutions the
authority to make law, which relates to social conventions. The identification of such
conventions is a matter of sociological research, but Hart’s theory also takes sociologi-
cal enquiry for granted and postulates that actors’ critical reflective attitude toward the
rules is not ultimately a matter of internal feelings, but of how the group regards its
own behaviour (1961, 88), and this establishes a connection with normative language:
ought, must, should, right and wrong (1961, 56). This allows him to distinguish between
‘feeling obliged’ and having an obligation, according to this critical reflective attitude
shared by the group (1961, 86). For many, The Concept of Law is the most important
work of twentieth century analytical jurisprudence (Douglas-Scott 2013, 40), but in
spite of pretending to deliver ‘a descriptive sociology’ Hart only describes the use of
language: social situations or relationships are related to the standard uses of relevant
linguistic expressions in a social context. Such “language turn” points to the relevance
of semiotics.

The semiotic dimension: ‘It takes two to make a truth’ (Austin 1950, 124)
The commands of the sovereign are expressed in a language: take the language out and the
whole system collapses. This necessarily implies a situation of linguistic communication
where the wish of the sovereign needs to be understood by the bulk of the population.
Words and commands are used to get things done, but Austin overlooked this point. The
presence of language in the background was largely ignored in successive jurisprudential
discussions. It took another writer, John Austin, 100 years later, to develop this dimension
of linguistic communication. The ‘language turn’ brought about by Oxford analytical
philosophy was incorporated into the law largely by H.L.A. Hart, who built The Concept
of Law on the criticism of Austin’s command theory. John Langshaw Austin (1911–1960),
a colleague of Hart’s in Oxford, developed this dimension of linguistic communica-
tion. He could have analysed Austin’s commands as a situation of communication, as
performative, perlocutionary acts (1962). The messages emitted by the sovereign are not
only pieces of information, they are ‘commands’ and threats addressed to the population
for it to do, or not do, something. J. L. Austin was sensitive to: (i) the specific features
of situations upon which we base one or another more fine-grained appraisal of uses of
sentences, and (ii) the details of the participants in that and other forms of transaction
between word and world (Longworth 2017). Norms are messages, illocutionary speech
acts emitted by a source and directed to addressees in a shared speech situation – semiotic
circle or discursive space sharing codes of meaning, word and world, and extracting from
them similar information (Ferrari 2006, 69).
From the sociolinguistic speech act perspective, law is a process of communication
generating order in an institutional environment: a norm-giver emits or directs norms to
the addressees, the norm-takers, in a given jurisdiction, who are the bulk of the population.

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14  Research handbook on the sociology of law

But why not understand law as the self-government of the citizens rather than the com-
mand of a sovereign to subjects? Norm-givers and norm-addressees (norm-users) would
then merge as the same self-governing or autonomous agents. If it takes two to make a
truth, it takes two to make a norm as well. This alternative focus adopts the norm-user
perspective rather than that of the norm-giver. The institutional approach to law and nor-
mativity (MacCormick 2007) accepts law is about normative communication, generating
order in an institutional environment. The ‘sovereign’, the norm-giver, also has to follow
the norms about making new norms, and thus becomes a norm-user bound by the law
(secondary rules). When applying and stating the law, judges also follow previously set
norms. Herein lies the essence of the rule of law. The community of users then becomes
the focal point, in law as in language, and this enhances individuals’ access to law making
and autonomy; that is personal empowerment (Bengoetxea 2015). Law, normativity in
general, is very much like language games in that the community of users determines
the linguistic practice and the understanding of the norms. An authority may very well
prescribe correct ways of speaking but if the users do not follow, the stipulated language
will become merely academic.
Law is not only about norm and regulation, it is also about dispute resolution and
conflict, and conflict emerges where normative expectations are not met and where
behaviour does not conform to the norms. Here too, it takes two to make a conflict. This
can happen when norms are being discussed, because their existence, validity or meaning
are contested. A failure of linguistic communication can account for the contested mean-
ing. A disagreement with the norm can also take place, and this may bring about a new
form of communication or discourse – debating the norms. The resulting situation may
be a frustration of normative expectations which may change with the new norms and,
sometimes, result in a loss of trust in normativity within the social group. But if conflict
and norm change are successfully managed, a new form of order may emerge and trust
in institutions may be reinforced.
The institutional settings or contexts differ greatly, but the essence of normative
communication remains the same: generating and fulfilling normative expectations on
behaviour in a community of users is socially meaningful. It is also socially valuable;
to the extent that the users share and satisfy such expectations, trust will follow, and
the rule of law principles will reinforce mutual trust in the social group, and this trust
is enhanced when norm-users engage in normative communication in a language that
they share (Bengoetxea 2011). For the more like others you are, the more inclined
you will be to trust them (Fukuyama 1995). Norm-givers (message issuers) and
norm-addressees (message recipients) normally find themselves in different spatial and
temporal coordinates; communication is not immediate, but they share an institutional
setting, a social space, a context, a language and a (legal) culture where norm-making
and norm-following are socially valuable institutional practices: in short, the social
capital of civil society (Putnam 1993). Herein, we meet the essence of self-government,
home rule, or self-determination. In a democratic polity, law is then better understood
as the re-enactment of the citizens governing themselves directly or indirectly through
representation. In multilingual, highly pluralistic and polycentric polities like the EU,
this process of representation, taking place in over 23 different languages, where the
citizens elaborate, receive and follow the norms, is extremely complex. It is supported
by a wealth of institutions.

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 Legal theory and sociology of law  15

A CONCEPT OF LAW AS AN INSTITUTIONAL

NORMATIVE ORDER

We need to be very careful about making universal claims when putting forward a concept
of law: its defining features – sense or intension – have to capture the many different
manifestations of the legal phenomena historically and geographically, reference or
extension. An over-inclusive reference extends to phenomena like morality or religion,
whereas an under-inclusive reference excludes phenomena like custom or self-regulation
(Tamanaha 2017, Ch. 2). Following this advice, we should approach the theory and
concept of law cautiously, progressively and cumulatively. Cautiously, by not making
sweeping generalisations; progressively, analysing each of the necessary features step by
step; and cumulatively, where each feature adds something necessary. MacCormick (2007)
defined law as an ‘institutional normative order’, a short but rich concept of law. Its three
components or explanans – norms, order and institutions – need to be conceptualised
without reference to the explanandum, law, in order to avoid redundancy and circularity.
The fundamental presupposition of this concept is that law belongs in the domain of
practical reason; the general human capacity for resolving, through reflection, the ques-
tion of what is to be done and how one contributes to what collectively ought to be done
when faced with a set of alternatives for action. Practical reason is concerned with matters
of value, of what it would be desirable to do, assessing and weighing reasons for action
(Wallace 2018). Norms, rules or standards of behaviour recognised in a social group are
powerful reasons for action.
From a sociological point of view, an institution is any type of normative set structur-
ing a field of social action in a lasting manner (Ferrari 2006, 139). The field of social
action is the subject matter of the institution: family, religious practices, games, economic
value, goods, power, education, health and so on. The lasting existence in society is the
consequence of the normative set providing stability and order: ‘Institutions by definition
are the more enduring features of social life.’ (Giddens 1984, 24). Institutions thus help
conciliate social stability and individual free will, recalling Aristotle’s view of man as a
political animal.
The structuring and the normative set go together and relate back to the concept of
norms, which constitute social reality. There are formal features – a status with deontic rela-
tions giving rise to rights, duties, obligations, requirements, permissions, authorizations,
entitlements, prohibitions and powers – that the diverse human institutions – churches,
universities, money, hospitals, schools, banks, ski clubs, marching bands, nation states or
governments – have in common, enabling them to function in human life (Searle 2010,
123). These formal features, bearing the form ‘X counts as Y in context C’, rely precisely
on norms: they provide structure to the institutions and they involve social and collective
recognition of the broader system or order where they belong to create deontic relations.
Institutions bring together categories of norms; for example, contract, property, mar-
riage, personality, trusts and so on, but they are themselves the creation of norms, namely
constitutive rules. Social institutions like family, authority, money and the market acquire
a higher level of complexity, an enhanced double institutionalisation (Bohannan 1965),
when they turn into legal institutions where the norms that constitute, regulate and change
them are themselves the object of further institutions. Norms in highly institutionalised
settings are structurally (systemically) more complex and sophisticated than norms

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16  Research handbook on the sociology of law

in less institutionalised settings such as custom or moral standards. Legal norms are
highly institutionalised forms: ‘legal conceptualisations function as action guides for an
idealised norm-subject’, a zoon politikon or homo juridicus using ‘institutional information
about legal arrangements both to set up and to stabilise relevant normative information’
(MacCormick 1992, 12). This stabilisation function of institutions can also be seen in
Schelsky (1980), Luhman (1985) and Weinberger (1991).5 Indeed, the institutional theory
of law advocated in this chapter, as facilitating the cross fertilization between jurisprudence
and sociology of law, which was sketched by MacCormick and Weinberger (1986), ‘was
profoundly influenced by a general sociological theory of institutions and legal realist
ideas of law as a means of social integration and change and as a normative reflection
and institutionalisation of human political and social imagination’ (Přibáň 2015, 98). But,
from the point of view of practical reason too, law involves enhanced institutionalisation:
‘the law exists to improve people’s conformity with reasons that already apply to them’
(Gardner 2018, 77), and this raises the issue of justice, upon which we conclude.

THE DIMENSION OF JUSTICE

‘Justice is the first virtue of social institutions’ (Rawls 1971, 3). The institutional analysis
of law carried out so far, like socio-legal studies generally, has paid less attention to a
crucial dimension of practical reason. The claim to correctness of the legal order, a claim
revived whenever controversies, disputes or conflicts emerge concerning the legitimacy of
legal norms and institutions, or their correct interpretation in hard cases, are given their
best possible meaning (Dworkin 1986). Law, as part of practical reason, makes a claim to
correctness that goes beyond its claim to formal validity, legality and authority (Raz 1994,
199), and even beyond the inner morality of law (Fuller 1964). Not only is the legal system
and its norms valid, they are also morally correct because the legal system, the legal order
and the institutions of law, aspire to reflect justice (Alexy 2010).
This is not an external claim to be checked empirically. The claim of law as integrity, the
dual nature of law is internal and conceptual: it would be self-defeating and conceptually
contradictory for the law to content itself with legality and not claim correctness at all,
or not interested in justice. If law discarded this claim to integrity, it would not be an
institutional normative order. The very concept of the norms as justificatory reasons
implies an internal claim to correctness. It is the very idea of norm in practical reason, of
order and of institution that implies such claims to moral correctness, justifying actions
and decisions. We go back to Gardner’s delphic observation that ‘the law exists to improve
people’s conformity with reasons that already apply to them’ (2018, 77), and we could add,
following from the previous section, that legal institutions exist to stabilise such reasons.
Practical reason may guide action and decision-making in complex and critical situations
where the rule of law – the virtue of legality – clash with other important values and

5
Like many sociologically inclined German and Central European jurists, Luhmann and
Weinberger were influenced by Schelsky’s notion of social institution as ‘objektiv, festgelegtes
System sozialer Handlungen’ (1980, 215). Discourse and systems theories soon took over, however,
and the general sociological theory of institutions gradually lost ground. I am indebted to Jiří
Přibáň for pointing out Schelsky to me.

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 Legal theory and sociology of law  17

claims to justice put forward by norm-users and litigants. ‘The paradigm of law is law that
exhibits all of the moral virtues that can be exhibited by institutions, not just the virtue
of legality. When law can exhibit legality only at the expense of other moral virtues, it is
by no means a foregone conclusion that legality must triumph’ (Gardner 2010, 426). This
principle of orientation that sees law as an argumentative practice, and legal reasoning
as part of practical reason, can be taken into account by a judge when judging human
and social action, but it can also contribute to the sociology of law when analysing and
even researching into the claims of law and the question of authority and legitimacy, and
the internal legal culture of a law as part of practical reason. This conceptual framework
should also be of use to the sociology of litigation.

CONCLUSION

The dialogue between jurisprudence and sociology of law will bring about an enhanced
understanding of the phenomenology of law. This dialogue has all too often been
eschewed by both disciplines, obsessed as they were with achieving full scientific creden-
tials on their own. Law’s domain is not an empire nor a closed system of norms, not even
a collection of raw data (social facts) but, rather, argumentative practice and practical
reason in a highly institutionalised setting, concerning personal lives in private and public
spheres. The language games of the law operate with rules (norms), processes (procedures)
and institutions; they stabilise and reflect social practices, social action involving people’s
rule-guided behaviour, disputes and conflicts concerning the rules, their meaning, scope
and application, even their change, and the making and enforcement of authoritative
decisions on the basis of such norms to concrete and real disputes. The internal (re)
construction of that system of norms, procedures, institutions and argumentative practice
seeking fairness is the law in the books and the law in the minds, of particular interest to
jurisprudence. The external social action reflecting and generating such practice is the law
in action that makes socio-legal scholars tick. I cannot begin to see how understanding
‘the legal’ could neglect either discipline.

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