Law and political sociology
Chris Thornhill
Origins: Law and the rise of political sociology
The early emergence of political sociology reflected an endeavour amongst certain theorists to comprehend the social meaning of the law, the social foundations of legal obligation, and the nature of the social freedoms secured by legitimate law. In key respects, in fact, the corpus of research now recognized as setting the groundwork for the later development of political sociology was formed through a broad, often skeptical response to the legal-political ideas of the later Enlightenment, which assumed objective form in the processes of constitutional revolution in France and America in the period 1776-1795.
The legal-political ideas of the later Enlightenment were based, first, in the constitutional principle of popular sovereignty: that is, that the legitimacy required to sustain the political order of a national society is created through the translation of rational agreements between politically relevant members of society into public-legal norms, binding upon all acts of state. This construction of popular sovereignty of course had its origins in the rationalist lines of social contract theory proposed, especially, by Locke, Rousseau and Kant. Expanding these principles, however, constitutionalists of the later Enlightenment formulated a concept of legitimate government as rule by constitutional law, in which the formal legal grammar of the constitution permanently distills the rational will and the rational freedoms of the sovereign people, and the constitution brings legitimacy to the political system by defining the conditions under which acts of governmental authority are to be conducted.[1] Early constitutionalism thus began to craft the argument that, as an expression of the popular sovereign’s will, constitutional law necessarily has a higher-order normative character, it reflects universally acceded subjective norms, and it is subject to particular entrenchment.[2] On this basis, early constitutionalists widely claimed that the political system constructs generalized norms for all society, and that all society is bound, in equal fashion, by the constitutional laws of the state. Indeed, early constitutionalism was specifically designed to supplant the more pluralistic legal orders of early modern Europe, in which the political system did not fully control or define the legal structure of society.[3]
The legal-political ideas of the later Enlightenment were based, second, in the idea that, although constitutional law extracts its legitimacy from the fact that it represents the will of the people, the people must also be protected from the governance system of society. In particular, individual members of society must be granted a sphere of legally guaranteed private liberty on which the state cannot intrude with strong justification. For this reason, early constitutionalism subscribed to the principle that the legitimacy of a constitution depends on the recognition of persons subject to law as holders of subjective rights, which can only exceptionally be suspended by persons exercising governmental power. Early constitutionalism, in short, was centred on a dual formula of legitimacy: popular sovereignty and subjective rights.
It would be an exaggeration to say that early political sociology evolved, ex nihilo, as a reaction against these legal-political ideas of the Enlightenment. Some theorists usually associated with the Enlightenment had set out a proto-sociological critique of rational constitutionalism long before the revolutionary decades. This was especially visible in the gradualist, anti-contractarian theories of legal-political legitimacy articulated in the Scottish Enlightenment, exemplified by David Hume and Adam Smith.[4] However, in the longer wake of the constitutional revolutions in America and France, there emerged a broad front of theorists, in themselves very distinct, who can now be seen as forerunners of political sociology. The outlooks of these theorists converged around a critique of the legal-normative preconditions of early constitutional democracy, and, most distinctively, they rejected, as socially reductive, the principle that the public-legal order of a state able to claim legitimacy can be founded in simple, generalized, rational norms or simple acts of collective rational self-legislation. Early political sociology developed, in part, as a critique of early political democracy; in fact, it was inseparably linked to the initial rise of early, semi-democratic models of legitimacy. On similar grounds, early political sociology also evolved, in part, as a critique of the patterns of legal construction that surrounded the first experiments in political democracy. Early political sociology, accordingly, was very close to early legal sociology.
This legal dimension of early political sociology is evident, first, in critical reactions to revolutionary constitutionalism set out by theorists who would now be classical as historicists. Contra the generalized normative principles promoted by the Enlightenment, in the longer wake of 1789 theorists of a historicist persuasion argued that legitimate statehood could only be founded in organically evolved, historically embedded legal norms, which could not easily be articulated in generalized rational categories.[5] This legal dimension in early political sociology is evident, second, in reactions to the French Revolution associated with Romanticism. After the revolutionary period, there emerged a second group of theorists, now seen as Romantics, who placed particular emphasis on the experiential dimension of legitimate law, also claiming that law acquired legitimacy from its interwovenness with historical circumstances and the natural ‘progressivity’ of human life-forms.[6] Notably, the historicists and the Romantics both shared the claim that legitimate law presupposes an objective-cognitive foundation society, and that the rational subject of law (the sovereign people) proposed by the Enlightenment lacked objective or social-material reality. Consequently, they implied that the constitutional doctrines of the Enlightenment could not provide an account of law able genuinely to secure human freedom or plausibly to command obedience in society. Both these lineages, thus, tentatively suggested that the legitimacy of the modern state had to be envisioned in sociologically refined categories, and that reflection on the personal, societal position of law’s addressees had to be integrated in any account of the legitimate state.
The legal dimension to early political sociology became evident, third, and most importantly, in Hegel’s works on the philosophy of the state, which can be viewed as the first cornerstone of modern political sociology, and of modern legal sociology.
First, Hegel criticized the legal theories of the revolutionary period for their salient focus on formal subjective rights as primary articulations of human liberty. He argued that the construction of rights as core elements of legitimate statehood reflected a falsely abstracted, socially unmediated understanding of human liberties and the conditions of their social realization. For Hegel, all exercise of human liberty presupposes the historically formed objective order of the state, prior or external to which there can be no freedom: all rights are contingent on the existence of a state able to protect such rights.[7]
Second, he argued that modern society was defined, at an essential formative level, by processes of differentiation, creating a societal order containing separate domains, marked by functionally distinct normative values. The formation of the modern society and its governance system, accordingly, should be observed, not as the result of collective-rational decisions, but rather as the consequence of a multi-focal trajectory, in which the political system, the economic system, and the system of personal relations had all assumed a distinct legal form and produced distinct legal norms, shaped by multiple rationalities.[8]
Third, Hegel claimed that, although the legitimate state was necessarily framed by rational constitutional laws, it was erroneous to presuppose that such laws could be projected through simple or formal acts of ideation by free-standing human subjects. Instead, he explained, laws of the rational state necessarily evolve on deep social foundations, and they can only be constructed through multi-layered patterns of social interaction and formation. Tellingly, Hegel asserted that it is implausible to imagine that a people can simply dictate laws to the state, and that the state can then, with equal simplicity, demonstrate its legitimacy to all society by complying with these laws. For Hegel, such Rousseauian or Kantian constructions of the state reflected a deep simplification of society and its political content, counterfactually assuming that society can be identified with one people, with one set of interests, motivated by one single rationality, and that the state can acquire legitimacy by assuming a simple rational identity with this simplified account of the people. The rationality of the state, he argued, needs in fact to be observed as the result of a series of embedded processes, located in multiple social locations, and the state can only acquire legitimacy to the extent that it promotes a multi-centric rationality, incorporating legal norms generated by and particular to different spheres of social exchange (economy, family, government). In this respect, Hegel argued against the abstraction of legal norms in the philosophy of the Enlightenment, and he claimed that the laws of the legitimate state obtain recognition through correlation with a complexly structured material-historical political will.
Hegel made two core contributions to the development of legal and political sociology. Crucially, he identified differentiation as the defining fact of modern society. He argued that the legal and political forms of modern society can only be explained through a perspective that is sensitive to the effects of societal differentiation, largely determined by the emergence of a relatively autonomous monetary economy. Simultaneously, however, he argued, in apparent paradox, that the state, although its construction is itself a part of a wider process of differentiation, possesses a distinctively privileged normative position in society. That is to say, the state must stand above other non-political spheres of exchange, radiating generally legitimized legal norms across all parts of society, in some cases even providing legal protection for persons released from their traditional social locations by the logic of differentiation from potentially unsettling experiences of individualization, competition, and economic instrumentality.[9] On this basis, Hegel explained that the legitimacy of the state has a double foundation. On one hand, the legitimacy of the state depends on the fact that it is required to recognize and preserve the plural liberties formed through societal differentiation, as the liberties of a modern society. Yet, the state also obtains legitimacy as it articulates a unified system of rational-legal norms, which overarch and underpin exchanges in other, differentiated spheres of society, and which in fact make the exercise of plural liberties in other parts of society possible.
At the heart of Hegel’s work, consequently, we can identify a defining sociological paradox. Although skeptical about the rationalist claims of the Enlightenment, he opted for a deeply sympathetic view of the state, whose public-legal order he saw as a potential rational corrective to the patterns of disaggregation, which otherwise determined the form of modern society. In particular, he implied that, although law and politics are shaped by a logic of differentiation, there are realms of social practice in which law and politics are necessarily fused, and where law needs to find its foundation and legitimacy in deeply structured political imperatives. Accordingly, he concluded that, although each sphere of society generates its own laws, the public laws of the state are defined and legitimated by the fact that they resolve antinomies inherent in subsidiary patterns of legal formation. The state acquires its highest legitimacy through its ability to translate the deep-lying political interests of society into universally accepted legal norms.
In Hegel’s thought an ambiguously statist attitude became a core part of early sociological inquiry into politics and law. This attitude was centred on the claim that formal rationality and positive, differentiated legal norms are themselves not strong enough to generate all resources of legitimacy required and consumed by modern society. Legitimate law, thus, requires a manifestly political substructure to secure its general obligatory force. Politics, in other words, became a central dimension of the sociology of law.
These legal motifs later became central to sociology as it developed as a more formally established academic discipline.[10] By the late nineteenth century, for example, Max Weber’s construction of modern society also reflected a critical theory of legal/political differentiation. For example, Weber argued that modern society was defined in general by a differentiation of the political system, which had evolved in accordance with a wider secularizing logic of purposive rationalization and technical bureaucratization. He also claimed, centrally, that modern society was marked by a differentiation of the legal system, which was increasingly constructed as a corpus of free-standing positive norms, expressed most clearly in the positive legal apparatus of the bureaucratic state. In his explanation of modern law, Weber was clear that modern society relies on positive law, and he analyzed the rule-bound purposive logic underpinning formal law as a core prerequisite in the stabilization and legitimization of legal, political and economic institutions. However, he also indicated that the resources of legitimacy created by positive law are restricted, and the capacity of positive law for enshrining substantial freedoms has clear limits. In particular, Weber argued that the rise of modern law was closely linked to two socially constitutive processes: to the bureaucratization of politics, and to the evolution of the instrumental mode of rationality underpinning the economy. In the latter respect, he explained that positive law acts to generate a framework of ‘rational rules’ and ‘calculable functioning’, in order to stabilize the mass of processes that define capitalism: industrial production, commodity circulation and – above all – ‘contractual freedom’ of exchange.[11] In some respects, therefore, Weber came close to proposing an inversion of the legal ideals of the Enlightenment, which construed modern law as a system of realized norms facilitating collective self-legislation, determining legitimational norms for the political system. He argued that modern law primarily expresses a formal-technical rationality, in which individual agents are trapped in formal sequences of obedience and instrumentality.[12] Notably, he did not see the modern constitutional state, at least in its positivist formation, as an institution in which power is constrained by agreed norms, or in which rationalized ideas of freedom are communicated through society. Instead, he described the constitutional legal state as ‘an impersonal order’ of ‘formal legality’,[13] whose appearance of regularity often serves to obscure the fact that the laws alienate their addressees from authentic purposes and freedoms.
Alongside his theory of legal and political differentiation, however, Weber devised a theory of political legitimacy based in the idea that the reality of societal differentiation could be countervailed, and that modern society had not entirely lost the capacity for producing substantial resources of legal and political authority. In fact, like Hegel, Weber’s basic theory of the state contains the claim that there are certain conditions in which the legal system of society can be suffused with substantial meaning, so that law can acquire a distinctly authoritative content. Notably, Weber described these conditions as moments in which legal norms are re-articulated with profound political experiences in society, and in which society expresses collective patterns of volition, identity and motivation through its public-legal order. For Weber, such conditions occur when society is unified by modes of rationality that have stronger appeal than the technical rationality of modern law and modern political and economic institutions – that is, in particular, by the charismatic rationality of powerful leaders. Weber argued that an element of charisma is an essential ingredient of political stability in modern mass-society. In fact, mass-societies must be unified and integrated by powerful politicians, who impose order, discipline and common purposiveness on society by exercising a specifically political will: a personal will which stands above the technical rationality of the bureaucracy and formal law, and which galvanizes society around imperatives that cannot be reduced to technical or formal-purposive motives. Politicians exercising such a will are likely to be distinguished by demagogic or Caesaristic attributes.[14] Like Hegel, in fact, Weber implied that, if it follows purely formal patterns of legal differentiation, modern society cannot generate the legitimacy required to sustain its own foundations, and the cohesion of society presupposes the legal embodiment of more integrative modes of rationality and legitimacy. The essential legal-political insight of classical political sociology, in other words, is that modern society is defined by legal, political and economic differentiation, but the legitimacy of society as a whole at times necessitates momentary, eminently political suspensions of its own differentiation.