Law and political sociology Chris Thornhill

Origins: Law and the rise of political sociologyThe 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 1Some research for this article was funded by the European Research Council (Advanced Grant: 323656-STC). Emmanuel-Joseph Sieyès, Qu’est-ce que le tiers-état? (Paris: Pagnerre, 1839 [1789]).2 See the quintessential account of this in Federalist 78, in James Madison, Alexander Hamilton, and John Jay, The Federalist Papers (London: Penguin, 1987). 3 Chris Thornhill, A Sociology of Constitutions. Constitutions and State Legitimacy in Historical-Sociological Perspective (Cambridge: Cambridge University Press, 20110, Chap. 3.

1

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, 4 Hume denied that laws of justice can be condensed into promises or contracts which are ‘antecedent to human conventions’: David Hume, A Treatise on Human Nature (Oxford: Oxford University Press, 1978), p. 542. For an early anti-deductive version of constitutional theory see also Adam Smith, Lectures on Jurisprudence, edited by R.L. Meek, D.D. Raphael and P.G. Stein (Oxford: Oxford University Press, 1978 [1762-66]), p. 3475 See as examples Edmund Burke, Reflections on the Revolution in France (London: Dodsley, 1790); Friedrich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung (Heidelberg: J.C.B. Mohr, 1840), p. 11; Leopold von Ranke, ‘Einleitung.’ Historisch-politische Zeitschrift, I (1832): 1-9; 2.

2

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 6 Friedrich Wilhelm Joseph von Schelling, System des transcendentalen Idealismus, in: Schelling, Werke, edited by Manfred Schröter, in 12 vols., (Munich: Beck and Oldenbourg, 1927-1954), II: pp. 327-634; 583.7 G. W. F. Hegel, Enzyklopädie der philosophischen Wissenschaften, part 3, in Werke, edited by E. Moldenhauer and K.M. Michel, in 20 vols. (Frankfurt am Main: Suhrkamp, 1969), X: 332-33.8 The objective societal will is divided into three spheres of social interaction: family, economy (civil society), and state. See G.W.F. Hegel, Grundlinien der Philosophie des

3

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

Rechts, in Werke, edited by E. Moldenhauer and K.M. Michel, in 20 vols. (Frankfurt am Main: Suhrkamp, 1969), VII: p. 306.9 Ibid p. 407.

4

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 10 See Talcott Parsons, ‘Law as an Intellectual Stepchild.’ Sociological Inquiry 47(3-4) (1977): 11-58; 11.

5

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

11 Max Weber, Wirtschaft und Gesellschaft. Grundriß der verstehenden Soziologie, 5th edition, edited by Johannes Winckelmann (Tübingen: J.C.B. Mohr, 1921), pp. 181, 198, 439.12 Ibid p. 43913 Ibid p. 124

6

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.

In some respects, similar constructions can be observed in the work of Durkheim. Of course, Durkheim also organized his theory of society around the idea of differentiation, and he argued that modern society in its entirety could be examined as the result of a basic process of differentiation, expressed in the rise of organic solidarity. In particular, he saw the emergence of the modern legal system and the modern constitutional state as the outgrowth of the evolutionary transformation of society towards a condition of organic solidarity. Notably, he set out the ground-breaking theory that the increasing constitutional formalization of the power of the state, observable in the growth of legal rights as subjective entitlements and the general decrease in political coercion, marked a wider correlation of the political system with the organic structure of society as a whole. By evolving a constitutional order, he claimed, the state learned to maximize its own power, so that it was able more effectively to apply its power, as a medium of inclusion, to persons in different locations across society.15 The modern constitutional state, accordingly, was formed through an evolutionary process, in which the political system reflected the organically connected reality of society as a whole.

Despite this emphasis on evolution and differentiation, however, Durkheim also arrived at the conclusion that the political system occupies a privileged location in society. In particular, he argued that the state assumes legitimacy as it imposes universally rationalized laws through society, and that modern society presupposes rational political institutions for its wider cohesion. In particular, he claimed that the state acquires legitimacy as it elaborates and refines the collective conscience of society,16 and that the modern democratic state developed through a process of common reflexivity or deliberation, in which governmental organs are linked to and legitimated by the shared consciousness of individual agents through society. The democratic state, thus, ’communicates by full necessity’ with ‘the mass of the nation’, such that democracy ‘appears as the political form by means of which society 14 Max Weber, ‘Parlament und Regierung im neugeordneten Deutschland’, in Max Weber, Gesammelte politische Schriften (Tübingen: J.C.B. Mohr, 1988), pp. 306-443; 39115 Émile Durkheim, Leçons de sociologie (Paris: PUF, 1950), p. 9316 Émile Durkheim, De la division du travail social, second edition (Paris: Alcan, 1902), p. 207

7

obtains a purer consciousness of itself’. As a result, he concluded, a ‘society is more democratic to the degree that deliberation, reflection and critical intelligence play a more considerable role in the course of public affairs’.17

Across different positions, the defining impulse of early political sociology can be observed in its attempt to define the societal-political foundations of legitimate law. As discussed, theorists of the Enlightenment had generally separated the sources of law’s legitimacy from the historical form of society. Early sociologists rejected the legal formalism of the Enlightenment, but they did not entirely renounce the universalist or ethical elements of Enlightenment state theory. Notably, they sought to integrate the idea of a rational, socially privileged political system into alternative visions of societal self-legislation, explaining the political subjects giving legitimacy to law as real, societal subjects, shaped by real, substantial motivations. Subsequently, this impulse remained dominant through classical sociological theories of the state. This impulse was stated formulaically in the works of Georg Jellinek, who structured his work around the principle that the universal legal order of the state was necessarily correlated with deeply embedded patterns of social norm production and structured obligation.18 Later, Hans Freyer gave paradigmatic expression to this idea, arguing that the law assumes legitimacy through its correlation with the political contents of national culture.19 Ultimately, this essential sociological approach to questions of legal authority position moved beyond the disciplinary boundaries of sociology, and it assumed central importance in the works of more sociologically oriented constitutional theorists, especially those who opposed purely positivistic constructions of legal validity and who were skeptical about notions of democracy founded in formal law. For example, Carl Schmitt argued, on one hand, for a secular, differentiated theory of the modern state. Yet, he also devoted his theoretical career to explaining how the formal-positive order of law could be suffused with substantial-political contents, based in intense experiences of shared historical identity and emotionally unified collectivity.20 Relatedly, Hermann Heller also concluded that the legitimacy of modern law presupposes a deep correlation with a substantially formed political will, and that the legal and political institutions of modern society form themselves from a ‘reality of experience’ which unifies all numbers of a national or cultural order.21

The rise of national democracy and the rise of international lawClassical sociological theories of politics were primarily interested in the conditions of democracy and legitimacy within national societies, and they were focused on questions of legitimacy concerning the core domain of classical politics: the state. Notably, in their endeavor to identify political 17 See Durkheim, Leçons de sociologie, p. 122. 18 Georg Jellinek, Allgemeine Staatslehre (Berlin: Häring, 1900), p. 7419 Hans Freyer, ‘Ethische Normen und Politik.’ Kantstudien 35 (1930): 99-114: 107-9.20 Carl Schmitt, Verfassungslehre (Berlin: Duncker und Humblot, 1928), p. 87.21 Hermann Heller, Staatslehre, edited by G. Niemeyer, 4th edition (Leiden: Sijthoff, 1970), p. 69

8

or material/societal foundations for the legitimacy of modern law, early sociologists had usually reserved particular hostility for international law. They widely interpreted international law as a particularly chimerical outgrowth of formal legal rationality, lacking all basis in the sphere of social interaction or will formation, and thus without substantial motivational force.22 For this reason, more sociologically oriented constitutional theorists also tended to be dismissive of international law.23

After 1945, however, sociologists of politics and law were confronted with a new, rather paradoxical problem in their analysis of democracy, democratic law, and its social premises.

On one hand, before 1945, only a very small number of national democracies had assumed enduring form. Before 1945, few sociologists had lengthy first-hand experience of democracy. After 1945, however, democracy slowly became a general norm of political-systemic organization. By the 1980s, it was assumed that populations had some kind of right to be governed democratically.24 By the end of the century, most national societies had developed a political system with at least some democratic features. On the other hand, the rise and stabilization of democracy after 1945 were sustained by the fact that most relatively secure democracies constructed at least some of their legitimational foundations, and especially their constitutions, through reference to norms contained in the expanding system of international law. In the years after 1945, the system of international law assumed rapidly intensified importance. This was caused by the formation of the United Nations, the increasing authority of international human rights law, the growing number of international courts, and the promulgation of regional instruments of international human rights law in Europe (European Convention on Human Rights) and America (American Declaration of Human Rights, later the American Convention on Human Rights). The intensification of international law formed the backdrop to the progressive globalization of democracy. The correlation between law and democracy thus assumed a new dimension at this time.

After 1945, the relation between the growth of international law and the formation of national democracies was cemented through two distinct processes. First, gradually, national states began to proportion their laws to norms contained in the international arena, particularly norms concerning human rights, especially if these were backed by powerful 22 Famously, for instance, Weber refused to view international law as real law: Max Weber, Wirtschaft und Gesellschaft, p. 18. Notably, Theodor Geiger described international law as a system of merely ‘purported legal norms’: Theodor Geiger, Vorstudien zu einer Soziologie des Rechts (Neuwied am Rhein: Luchterhand, 1964 [1947]), p. 221. 23 Carl Schmitt, ‘Über die zwei großen ,Dualismen’ des heutigen Rechtssystems’ in Carl Schmitt, Positionen und Begriffe im Kampf mit Weimar-Genf-Versailles (Berlin: Duncker & Humblot, 1940), pp. 261-271.24 Thomas M. Franck, ‘The Emerging Right to Democratic Governance’. The American Journal of International Law 86(1) (1992): 46-91.

9

international organizations and their judicial bodies. Second, many national states created new constitutions which instituted powerful domestic courts, which obtained the power to check domestic statutes for constitutional compliance, often using international human rights law to buttress their rulings and opinions; such courts often acted as transformers of international law. These two lines of interaction between international and domestic law meant that, after 1945, human rights became a vital part of a shared vocabulary of democratic legitimacy, and the institutional architecture of democratic polities generally converged around normative designs shaped by international human rights obligations. In some extreme cases, international organizations even played an immediate role in the constitutional creation and territorial administration of new democracies.25

Slowly but inevitably, the increasingly palpable linkage between international law and national democracy had an impact on the sociology of democracy and democratic law. Paradoxically, whereas earlier sociological theorists had implied that the abstracted legal order of democratic political systems could not generate enduring structures of legitimacy, democracy ultimately became an enduring global governance model on the foundation of a legal order (international law), which sociologists had denounced as wholly formal and insubstantial, or even as falling below acceptable definitions of law. For sociological theorists, these developments had the implication that, to some degree, the primary legal-political critiques of the classical era of sociology had to be abandoned, or at least revised. In particular, this led to a certain re-orientation amongst sociological theories of law and democracy, and sociological theorists were obliged to redesign their earlier critical analysis of legal formalism and their conventional enthusiasm for nationally embedded, volitional modes of political formation.

Generally, this reorientation in sociological reflection on democratic law can be divided into four distinct conceptual lineages, discussed below. These lineages are not presented here as distinct schools of sociological theory. Clearly, these lineages cross a range of very distinct theoretical outlooks, and they bridge otherwise non-reconcilable lines of inquiry. Instead, they are presented as broad conceptual paradigms for articulating a sociology of democratic law in a context increasingly marked by interaction between national and global legal systems.

1. The legal sources of national democracyThrough the second half of the twentieth century, many central positions in the sociology of democratic law only paid peripheral attention to the increasing correlation between the legal system of national democracy and the growth of international law. In fact, a small number of exceptions notwithstanding,26 sociological theory only focused its gaze on the inner-societal implications of international law rather gradually. Accordingly, 25 Simon Chesterman, You, the people. The United Nations, Transitional Administration, and State-Building (Oxford: Oxford University Press, 2004).

10

many leading analyses of the social foundations of democratic law in the decades after 1945 did not renounce their primary concern with the functions of law, and especially constitutional law, for processes of national integration, national identity formation, and the legitimization of national institutions. In such neo-classical theories, the sociological implications of international law only received relatively marginal consideration.

Key amongst the primarily nation-state-focused analyses of democratic law after 1945 are, first, works in the Parsonian line of inquiry.

Parsons himself developed one of the most important perspectives in the sociology of democratic law in his interpretation of the social functions of civil rights, in the context of the American civil rights movement of the 1950s and 1960s. Building on T. H. Marshall’s earlier analysis of the integrative function of legal rights, Parsons argued that civil rights law plays a vital role in the formation of democratic polities because it permits multiple patterns of inclusion or membership in society, and it facilitates the construction of society around pluralistic identities and affiliations. He thus implied an attachment to a Durkheimian theory of constitutional rights as institutions that help to sustain complex patterns of citizenship, in which an overarching national societal collective is able to incorporate, a number of sub-collectivities.27 Accordingly, rights appeared to Parsons as core elements in the structure of democracy, forming a multi-focal system of societal inclusion, capable of linking a pluralistic society to a democratically formed political system. Elsewhere, Parsons also attached great important to the constitution as a legitimating sub-system of modern society.28

Parsons’s ideas were later reproduced, in varied form, in other important sociological discussions of democratic law. This is most visible, for example, in Niklas Luhmann’s early writings on legal sociology. Notably, although Luhmann placed the concept of world society at the centre of his work, his writings on law, and, still more noticeably, on politics, are unmistakably focused on the more classical processes of legal-political inclusion that characterize national states. In his writings of the 1960s, Luhmann proposed a key sociological analysis of constitutional rights as institutions that serve a vital dual function for democratic states. On one hand, he argued, rights facilitate the social inclusion of individual persons in the political system. On the other hand, the fact that persons are designated as holders of rights solidifies the wider differentiation of society, obstructing the full, unsettling centration of society around the

26 Myres S. McDougal, Harold D. Lasswell and W. Michael Reisman, ‘Theories about International Law: Prologue to a Configurative Jurisprudence.’ Virginia Journal of International Law 8 (1968): 188-299.27 Talcott Parsons, ‘Full Citizenship for the Negro American? A Sociological Problem.’ Daedalus 94(4) (1965): 1009-1054;101528 Talcott Parsons, ‘Review: Hurst’s Law and Social Process in U.S. History.’ Journal of the History of Ideas 23(4) (1962): 558-564; 563.

11

political system.29 Like Durkheim and Parsons, therefore, he examined the rise of legal rights as an evolutionary process, enabling the institutionalization of individual liberties in a balanced political system, located in a pluralistically formed society. After this, Luhmann’s reflections on law and democracy passed through a number of phases. In the first instance, he intensified the functionalist dimension to Parsons’s thought by arguing that democratic law assumes legitimacy to the degree that, for whatever motive, its addressees can be trained to accept it as legitimate, typically through the institutionalization of role-playing procedures within the governmental administration.30 Ultimately, he developed the argument that in contemporary differentiated societies the legal system and the political system are necessarily conjoined, and political power can only be utilized as an effective medium of societal exchange to the degree that it is distilled into legal form.31 On this account, the legal transformation of political power presupposes the existence of a constitution, which facilitates the construction of power as a legally usable medium, and it requires the presence of democratic procedures, which also convert politically relevant social exchanges into a legally transmissible form.32 In this theory, Luhmann construed democracy as an essential apparatus for the effective social circulation of political power, and he argued that the legal foundations of democracy are formed through a functional reliance of political power on the law as a medium of transmission. Later, Richard Münch also relied heavily on Parsons to establish a concept of ‘constitutional culture’ as a core premise of democratic society.33

These more functionalist accounts of democratic law were rivalled by sociological theories of democratic norm production originating in the wider milieu of the Frankfurt School, which also tended to focus on essentially national models of democratic polity. Before 1945, some theorists attached, broadly, to the Frankfurt School had already set out important critical analyses of the legal foundations of democracy in mass society, tending to link aspects of Schmittian anti-parliamentarism to a critique of the materialization of politics in modern democracy. This was especially elaborated in the thought of Franz L. Neumann and Otto Kirchheimer, who wrote extensively on the underlying contradictions of constitutional law in capitalist societies.34 29 Niklas Luhmann, Grundrechte als Institution. Ein Beitrag zur politischen Soziologie (Berlin: Duncker und Humblot, 1965).30 Niklas Luhmann, Legitimation durch Verfahren (Frankfurt am Main: Suhrkamp, 1983 [1969]), p. 34.31 Niklas Luhmann, Die Gesellschaft der Gesellschaft (Frankfurt am Main: Suhrkamp, 1997), p. 35732 Niklas Luhmann, Das Recht der Gesellschaft (Frankfurt am Main: Suhrkamp, 1993), pp. 416-17.33 Richard Münch, Die Struktur der Moderne. Grundmuster und differentielle Gestaltung des institutionellen Aufbaus der modernen Gesellschaften (Frankfurt am Main: Suhrkamp, 1984), p. 311.34 See especially Otto Kirchheimer, ‘Das Problem der Verfassung’, in: Kirchheimer, Von der Weimarer Republik zum Faschismus: Die Auflösung der demokratischen Rechtsordnung, edited by W. Luthardt (Frankfurt am Main: Suhrkamp, 1976), pp. 64-

12

On this basis, ultimately, Jürgen Habermas developed a discourse-theoretical analysis of democratic law, designed to recreate the normative conditions of classical democracy, based in acts of rational collective self-legislation, in the context of highly complex modern societies. Salient in Habermas’s theoretical endeavor to rearticulate the classical premises of democratic law are the claims that (a) discursively constructed legality is an irreplaceable foundation for a legitimate democratic system; (b) discursive consensus, which forms the foundation for legitimate democratic law, must be secured in a politically unregulated public sphere;35 (c) members of mass society can be incorporated within democratic political systems, as participants in discursive legal norm production, through the proceduralization of participation opportunities; 36 (d) even in hyper-complex democratic societies, legitimational processes cannot be reduced to simply functional operations, and rational or consensus-oriented discourse can produce norms that steer all institutions; (e) democratic legitimation of laws presupposes both collective participation in legally relevant discourse, and the existence of formal constitutional rights, which guarantee the normative parameters for participation. On the last point, Habermas reserved a distinctive legitimational status for human rights, and he argued that rights become constitutive of political legitimacy where they are exercised as ‘participatory rights and rights of communication’; as such, rights enact ‘positive liberties’, through which the organs of political authority are constituted as accountable to and representative of positively generalizable human freedoms.37

Central to Habermas’s discourse-theoretical understanding of democracy is an attempt to combine pure philosophical and more obviously sociological methods in the discussion of democratic legitimacy. On one hand, therefore, he aimed to show that democratic legitimacy presupposes that laws reflect universal principles, and that they enact interests recognized as valid by all implicated rational agents. To this extent, Habermas worked within the scope of classical-philosophical legal inquiry. At the same time, however, he argued that the discursive procedures in which consensually founded laws are established are embedded in everyday societal experiences and domains of interaction. To this degree, Habermas re-expressed the main principle of earlier sociological critiques of classical philosophy, insisting that legitimate law requires a social foundation of politically motivated recognition, and that such recognition cannot be secured through formal rational analysis on its own. The more political elements of Habermas’s discourse-theoretical account of democratic law were later integrated into activist theories of 68; 6735 Jürgen Habermas, Strukturwandel der Öffentlichkeit. Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft, new edition (Frankfurt am Main: Suhrkamp, 1990), p. 142.36 See Jürgen Habermas, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Frankfurt am Main: Suhrkamp, 1992), p. 133.37 Ibid p. 328

13

legal-democratic agency, most notably that of Andrew Arato, who linked the consensualist dimension of Habermas’s thinking to an analysis of the role of civil society activism in democratic formation.38

As mentioned, for all their variations, these theories fall into a category of legal-sociological reflection that is focused largely on questions of legitimation and norm production within national democratic legal-political systems. Nonetheless, it is clear that these outlooks all showed at least an oblique awareness of the increasingly transnational form of democracy after 1945. Indeed, in each case, special emphasis was placed on the role of universal rights in stabilizing democracy, and each theoretical position was designed to explain the importance of universal norms within more traditional, nationally circumscribed processes of inclusion and legitimization. For Parsons, Luhmann, and Habermas, notably, democratic law rests, in part, on universal constitutional rights, and the processes of collective inclusion which define the legitimacy of democratic law are not thinkable without strong constitutional guarantees for human rights.

2. Critique of global normsIf the core perspectives of neo-classical legal sociology after 1945 were only marginally concerned with the international dimension of democratic law, the late twentieth century saw the emergence of a large body of sociological research which engaged more frontally with the rise of legal universalism. Many perspectives in this research identified the globalization of human rights law, in particular, as leading to an erosion of national democracy. The tenor of such legal-sociological inquiry is largely typical of early research on globalization as a wide bundle of social phenomena, and it analyzes globalization as a process that weakens national states and undermines opportunities within national societies for authentic democratic self-legislation.

In the first instance, this critique of universal law was proposed from within the political flank of the Critical Legal Studies movement, notably by Costas Douzinas, who has analyzed human rights law, in part, as an inhibiting factor in movements for collective liberation.39 Duncan Kennedy set out analogous claims, arguing that rights-based models of democracy reflect an ideological universalization project, which potentially restricts genuine social emancipation.40

Relatedly, more orthodox anti-globalist perspectives have been developed within the context of research on post-colonial law. Key positions in this literature argue that international law was devised as an imperialist construction, and it was designed to impose falsely universalized legal 38 Andrew Arato, Civil Society, Constitution, and Legitimacy (Lanham/Oxford: Rowman and Littlefield, 2000).39 Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Abingdon: Routledge-Cavendish, 2007).40 Duncan Kennedy, ‘The Critique of Rights in Critical Legal Studies’ in Wendy Brown and Janet Halley (eds), Left Legalism/Left Critique (Durham, NC.: Duke University Press, 2002), 178-227; 190, 219.

14

models, primarily promoting the capitalist liberties of proprietary autonomy and contractual independence, on societies historically defined by organic patterns of collective ownership and recognition.41 This line of critical refection on international law is closely flanked by a long-standing tradition of socio-anthropological research on legal pluralism. Through the 1970s and 1980s, in particular, there emerged a large body of research, placing a particular focus on post-colonial societies, which sought to uncover the multiple legal histories which, allegedly, had been eradicated by the imposition of formalistic, inherently oppressive legal systems through the era of colonial rule.42

These two lines of research eventually converged in a pluralistic critique of formal democratic legalism, expressed most clearly in the works of Boaventura de Sousa Santos. Central to the work of Sousa Santos is a theory of interlegality, based in the observation that in most societies, and most especially post-colonial societies, there exist multiple legal sites, which often interact with each other in hybridizing fashion, and in which the assumption of dominance by a formal legal system is often simply illusory.43 Ultimately, this theory was incorporated into a doctrine of legal activism, calling for the assertion of alternative sources of law against dominant legal patterns, and even for a radically acentric re-foundation of democracy. This theory assumed specific relevance in some South American societies, notably Ecuador and Bolivia, which were abidingly marked by the legal legacies of colonialism and which also contained a complex ethnic structure, in which indigenous communities were politically galvanized by demands for legal/judicial self-government.44 In this context, elements of critical legal studies and more orthodox theories of legal pluralism were fused by Sousa Santos and others to form the basis for a new model of constitutionalism in which multiple, post-classical or even subaltern political subjects were able to appear as constituent actors. Notably, Sousa Santos accentuated the importance of some domains of international law is promoting democratic legal cultures; he sees the ‘political mobilization of international human rights’ as a core mode of inner-societal democratic agency.45 However, his work is clearly opposed to the simple formalist application of human rights law as a global premise for democracy.

41 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004). 42 See for example John Griffiths, ‘What is Legal Pluralism?’ Journal of Legal Pluralism 24 (1986): 1-55; 1. Sally Engle Merry, ‘Legal Pluralism.’ Law & Society Review 22(5) (1988): 869-896.43 Boaventura de Sousa Santos, Toward a New Legal Common Sense, 2nd edition (Cambridge: Cambridge University Press, 2002), p. 437; Boaventura de Sousa Santos, ‘The Heterogenous State and Legal Pluralism in Mozambique.’ Law & Society Review 40(1) (2006): 39-75.44 Boaventura de Sousa Santos, ‘Cuando los excluidos tienen derecho: justicia indígena, plurinacionalidad e interculturalidad’ in Boaventura de Sousa Santos and José Luis Exení Rodríguez (eds), Justicia indígena, plurinacionalidad e interculturalidad en Bolivia (Quito: Abya-Yala, 2012), pp. 11-48; 19.45 Sousa Santos, Toward a New Legal Common Sense, p. 488.

15

Such critiques of legal universalism are not exclusive to theorists with a particular concern for the politics of post-colonial societies. An alternative critique of the linkage between contemporary democracy and international law, especially in a form mediated into national societies through powerful domestic courts, also appeared in a number of increasingly acerbic commentaries on the role of judicial politics. In this setting, the works of Ran Hirschl, focused on a critique of juristocracy, have exemplary importance.46 Hirschl proposed an analysis of the judicial emphasis of contemporary democracy which argued that that the close relation between dominant lines of democratic institutional selection, the rise of international courts, and the domestic penetration of international law has widely undermined national-democratic processes, and it is closely determined by the policy preferences of global elites. These ideas have been extended by David Schneiderman, who has argued that the global rise of courts, especially in the sphere of international investment law, can be directly linked to an emergent international financial hegemony.47

3. New patterns of politics Theories discussed in previous sections, generally, remain attached to relatively classical-sociological conceptions of the political domain, and, to some degree, they retain an essentially binary or even dualist approach to the relation between domestic and international law. At the same time, however, other sociologists have begun to more nuanced regard for the consequences of the rising force of international norms, and they have begun to envision new patterns of political practice which reflected and captured this.

To some degree, the idea that the interaction between national and global norms has stimulated the emergence of new patterns of politicality is already visible in the thought of Sousa Santos, whose concept of interlegality identifies international law as one important element in the mix of contemporary legal-political agency.48 More centrally, however, a significant volume of legal-sociological research on democracy has developed which has rejected the formal separation between national law and international law, and which applies the theory of legal pluralism to the dynamics of global legal interaction. Under the influence both of Luhmann’s theory of world society and of David Sciulli’s critique of state-centred constitutionalism, for example, Gunther Teubner has set out a proceduralist theory of constitutional norm formation, which endeavours to imagine new locations and new expressions of political agency and legal norm construction in the hyper-complex form of global society. 46 Ran Hirschl, Towards Juristocracy. The Origins and the Consequences of the New Constitutionalism (Cambridge, Mass.: Harvard University Press, 2004).47 David Schneiderman, Constitutionalizing Economic Globalization. Investment Rules and Democracy’s Promise (Cambridge: Cambridge University Press, 2008).48 See Leonardo Tamburini, ‘La jurisdicción indigena y las autonomías indigenas’ in Bouventura de Sousa Santos and José Luis Exení Rodríguez (eds), Justicia indígena, plurinacionalidad e interculturalidad en Bolvia (Quito: Abya-Yala, 2012), pp. 249-274; 250-51.

16

Teubner developed the theory that, in global society, the political centres of social interaction should not be imagined as solely tied to formal state-like institutions. Moreover, the state, and above all the nation state, cannot be seen as constructing norms that have monopolistic force across all parts of society.49 Instead, he argued that global society is divided into many separate transnational functional sectors, each of which contains its own specific modes of political-democratic agency, and each of which is capable of generating de facto constitutional norms to regulate its exchanges, across the historical boundaries between national societies.50 Each transnational functional domain thus creates its own political-constitutional order, based in highly contingent, inner-systemic acts, which cannot be generalized across all of society’s dimensions.

Important legal-sociological reflections on the interpenetration of national democracy and global norms are also found in research on legal mobilization as a determinant of democratic foundation. In different ways, Sally Engle Merry,51 and Kathryn Sikkink,52 have explained how the interlocking between national political practices and internationally defined and protected legal norms assumes particular democracy-enhancing effect, especially in transitional societies. These ideas have also been expanded in research that belongs to a more obviously cosmopolitan tradition.53 In particular, cosmopolitan theorists have argued that acts of popular sovereignty in national society can be enhanced by the mobilization of international norms. Notably, in his later contributions to the theory of democracy, Habermas increasingly accentuated the complementarity of national democratic constitutionalism and transnational modes of governmental organization. Salient in this regard are his reflections on the politics of the European Union, in which he identified the possibility of dual sovereignty, reflecting a homology between the constitutional culture of national states and the constitutional culture of the EU as a whole, as a legitimational foundation for transnational politics.54

In each of these examples, the overlapping of national and international modes of norm construction is observed as making a distinctive contribution to the formation of democracy, such that democracy increasingly appears as sustained by two-level sources of normative 49 Gunther Teubner, ‘Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory?’ in Christian Joerges, Inger-Johanne Sand and Gunther Teubner (eds), Transnational Governance and Constitutionalism (Oxford: Hart, 2004), pp. 3-28.50 Gunther Teubner, Constitutional Fragments. Societal Constitutionalism and Globalization (Oxford: Oxford University Press, 2012).51 Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago: Chicago University Press, 2005)52 Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York: W.W. Norton: 2012)53 Seyla Benhabib, ‘Claiming Rights across Borders: International Human Rights and Democratic Sovereignty.’ American Political Science Review 103(4) (2009): 691-704. 54 Jürgen Habermas, 'Die Krise der Europäischen Union im Lichte einer Konstitutionalisierung des Völkerrechts – Ein Essay zur Verfassung Europas.’ Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 72 (2012): 1-44; 22-23.

17

agency. This idea is also central to the later works of Roger Cotterell, who sought to imagine transnational forms of community to support and bring legitimacy to the legal structures of global society.55

4. The correlation of democracy and international lawAlongside these developments, it is also possible to identify a distinct line of research which emphasizes the complementarity of democracy and international law, arguing that the formation of an international legal domain is actually driven by impulses that are deeply embedded in the structure of national democracies. Some positions in this research even view the interaction between international law and domestic law as an essential precondition of democracy.

For example, focusing on a constrained empirical-institutional domain, some sociologists, influenced by Pierre Bourdieu, have adapted perspectives from the sociology of elites and the sociology of professions to explain the rise of an international judicial system. Notably, Mikael Rask Madsen has explained the growth of international human rights courts, promoting the formation of global democracy, as the result of elite strategies within national societies.56 The theme of the essential interconnectedness of global normativity and national-democratic consolidation is approached from a more expansive sociological perspective in recent publications by Hauke Brunkhorst. Linking an evolutionary theory of social formation to a Habermasian doctrine of discursive norm construction, Brunkhorst accounted for contemporary democracy through a long pre-history of democratic institution building, tracing the constitutional origins of democratic governance to the high Middle Ages.57 In this reconstruction, he argues that each period of revolution in modern history, from the Papal Revolution of the 12th Century, to the Reformation, to the constitutionalist Revolutions of the Enlightenment in the 18th Century, has instilled in society a set of hard, materialized norms, which propel the formation of democratic government, in each case giving more robust protection to essential liberties of human self-determination. Ultimately, Brunkhorst argued, this process resulted in the revolutionary construction of a system of international norms, especially relating to human rights law, in the aftermath of 1945, which conferred intensified security on democratic normativity within the national domain. In this process, the stabilization of 55 Roger Cotterrell, ‘Transnational Communities and the Concept of Law.’ Ratio Juris 21(1) (2008): pp. 1-18.56 Mikael Rask Madsen, ‘Sociological Approaches to International Courts’ in Cesare Romano, Karen Alter and Yuval Shany (eds), Oxford Handbook of International Adjudication (Oxford: Oxford University Press, 2014), pp. 388-412. For background see Yves Dezalay and Mikael Madsen, ‘The Force of Law and Lawyers: Pierre Bourdieu and the Reflexive Sociology of Law.’ Annual Review of Law and Social Science 8 (2012): 433-452. For a similar approach see Antoine Vauchez, ‘Judicialization: A Sociohistorical Perspective’ in Mikael Rask Madsen and Chris Thornhill (eds), Law and the Formation of Modern Europe: Perspectives from the Historical Sociology of Law (Cambridge: Cambridge University Press, 2014), pp. 96-116.57 Hauke Brunkhorst, Critical Theory of Legal Revolutions – Evolutionary Perspectives (London/New York: Continuum, 2014).

18

democracy within national societies is integrally linked to the articulation of democratic norms at an international level, and it is only through the correlation between both dimensions of the global legal system that democracy emerges as a relatively stable mode of socio-political organization.

From a more functionalist perspective, related legal-sociological claims have been advanced by Chris Thornhill. Thornhill argued that, from the moment of their establishment, national democratic societies generated dynamics of legal inclusion, linked to constitutional guarantees over different strata of rights, which they cannot of themselves resolve. In particular, national democracies are forced to confront inclusionary pressures by different social groups, which their institutions struggle to incorporate, or even to withstand.58 On this basis, he explained how national political institutions lock themselves into international normative systems to heighten their resilience in face of inclusionary pressures, embedded in the structure of national societies. On this account, the evolution of international human rights is largely driven by pressures within national societies, and the concretion of a layer of international rights, above the layers of economic, political and socio-material rights created exclusively within national institutions, acts to stabilize democracy at a national level, and to soften the exposure of democratic institutions to otherwise unsettling demands for inclusion.

For both Brunkhorst and Thornhill, therefore, national democracy is not enduringly secure outside a normative context defined by international law, and national democracy in many ways presupposes international law. In fact, national and international norms are produced by the same evolutionary processes.

ConclusionPolitical sociology and legal sociology have, from the outset, been closely connected. Indeed, some core works of political sociology – for example, Hegel’s Philosophy of Right, Weber’s Economy and Society, Habermas’s Structural Transformation of the Public Sphere – are also core works of legal sociology. Notable in the formative relation between legal and political sociology is the fact that early legal sociology was usually distinctively political, and it was widely centred on a critique of law, or at least of formalistic concepts of legal validity and authority, in the name of politics. Paradoxically, however, legal sociology was eventually confronted with the fact that political democracies tended to stabilize, not around collectivized political experiences, but around systems of formal legal norms, largely based in international human rights law. Latterly, therefore, the political focus of legal sociology has mainly focused, critically or affirmatively, on the reconfiguring of democracy by international law. In

58 Chris Thornhill, A Sociology of Transnational Constitutions. Social Foundations of the Post-National Legal Structure (Cambridge: Cambridge University Press, 2016), Chaps 5-6.

19

consequence, the emphatically political content of legal sociology has necessarily been muted, although not eradicated.

20