Page 89 - The ISA Handbook in Contemporary Sociology

9781412934633-Chap-05 1/10/09 10:21 AM Page 60

60 THE ISA HANDBOOK IN CONTEMPORARY SOCIOLOGY

schools of thought that implicitly or explic- emerged, in part, as a reaction to natural law
itly recognize the social and institutional theories, which sought a permanent and
character of law (Raz, 1979: 41). Yet, the universally valid basis for law in nature
2
image of law as a highly rationalized rule- and/or divine reason. Various schools of
based activity, i.e., as a system of rules, legal positivism share three fundamental
norms, decisions, doctrines and principles assumptions: firstly, law is a system of rules,
designed to direct action, guide legal analysis norms or principles; secondly, law is a matter
and justify decisions in an ‘objective’ of ‘social fact’ and its sources of authority
manner, pervades juristic discourses and and validity are empirically verifiable; and,
creates the cornerstone of legal education. thirdly, there is no necessary link between
Rule-based thinking can be regarded as part of law and morality. This means that the valid-
the method through which law distinguishes ity of a legal rule is not derived from its
the legal from extra-legal events, at the same content but from its source, which is in turn
time as it appears to be deciding cases on an conceptualized in terms of a social agency or
all-or-nothing basis, which in principle institution such as the ‘sovereign’. Despite
leaves little or no space for general moral or recognizing the social nature of the sources
sociological considerations (Luhmann, of law, legal positivism pays little, if any,
1985). Rule-based thinking might appear to attention to the social constitution of this
be a mechanical method of decision-making, agency. As a result, we find H. L. A. Hart
but in practice it is an open-ended and reflec- (1907–92), who is one of the influential legal
tive process of interpretation, where the same philosophers of the twentieth century, recog-
rule can be interpreted by different lawyers in nizing the importance of ‘officials’ of law,
different ways, reflecting their specific legal but neglecting to consider how the social
standpoint, interest and the social context in constitution of these ‘officials’ can influence
which they find themselves. Rules are thus the way law is formulated, promulgated,
standards for action, or one among many interpreted and enforced (Cotterrell, 2003:
resources used to negotiate the boundaries of 210–11). Hart also argues that law consists in
law. The interpretive and contextual nature of various rules which are essentially social, but
legal rules indicates that law does not consist again stops short of analyzing whom law
of rules alone, but also of communicative speaks for and ‘whose voices and expres-
processes through which the interpretation sions are excluded from legal expressions’
and application of rules are realised in vari- (Cotterrell, 2003: 210–11). Legal posi-
ous social contexts. Sociologically, these tivism’s unwillingness to discuss the consti-
communicative processes, rather than legal tution of the ‘social’ is a reflection of what
rules, are the units of analysis. Also, from a much of jurisprudence – obvious exceptions
sociological point of view, the rule-based being legal realism, critical legal studies and
approach reflects law’s attempt to rationalize schools of legal feminism – has set out to
and confine complex social processes to the achieve. Legal positivism tries to provide an
conceptual boundaries of legal rules and adequate account of law as it is in contrast to
standards. how law ought to be, but it wishes to achieve
The significance of the rule-based under- this analytically and at the level of general
standing of law can be observed in theories theory, i.e., by clarifying the basic concepts
which subscribe to ‘legal positivism’ and see and frameworks through which we observe,
law as consisting in rules (Hart, 1998; describe and understand law rather than
Kelsen, 2001; Raz, 1979). The tradition of through empirical investigation of the mun-
‘legal positivism’, which continues to pro- dane practices and experiences of men and
vide the most influential modern account of women who produce and reproduce the law
law, has its roots in the Enlightenment and and its institutions.