New Bearings in the Sociology of Law

Abstract

Conventionally, normative and analytical philosophical approaches (i.e., those of Rawls, Dworkin, Alexy, etc) occupied an unshakably dominant position in constitutional theory. Theories of constitutional rule typically isolated the aspect of constitutionalism concerned with fundamental rights from other constitutional functions, and they usually revolved around the attempt to explain constitutions as documents expressing rationally defensible norms to govern the distinctively public exchanges of society. This dominance of analytical theory in constitutional inquiry was flanked and reinforced by the fact that ‘sociolegal’ analysis – with its own particular methodologies and emphases – had retreated from, or in fact had never really taken occupancy of, the sphere of constitutional debate, and it tended to concern itself with questions located in the sphere of private law, in regulation, or in criminology; the primary overlap of sociolegal analysis with a particular subdiscipline of law is clearly still now with criminology. In the rare cases in which more conventional sociological reflection placed a focus on constitutional law, for instance, in the works of Gunther Teubner and other theorists influenced by him, it usually located constitutional law on a continuum with private law. Indeed, the connection between constitutional law and private law was already anticipated by the very earliest sociotheoretical reflections on constitutional law – for instance, in the writings of theorists as diverse as Savigny and Marx. In contemporary debate, the indifference of legal sociology toward constitutional law (construed categorically as public law) is no doubt in part attributable to the fact that the field of sociolegal studies evolved in tandem with the development of research on legal pluralism and with the growth of attendant theoretical and explanatory models. In the spirit of Eugen Ehrlich, analysis of legal pluralism was historically associated with the sphere of private–legal relations, which meant that sociolegal inquiry into constitutional norms was also directed toward the domain of