An Institutional Approach towards the History and Present State of Rechtssoziologie (Sociology of Law) in Germany

by Michael Wrase

The joint conference “Die Versprechungen des Rechts” (“The Promises of Law”) of the socio-legal studies associations of Germany, Switzerland and Austria taking place 9th-11th September 2015 at Humboldt University Berlin attracted more than 200 submissions of panels and paper proposals. Having experienced a constant decline in institutionalisation over the last three decades, and despite the difficulties still faced by the field of socio-legal studies in Germany, there now seems to be at least a phase of ‘consolidation’. The Berlin conference will be the third in a row of gatherings following Lucerne 2008 and Vienna 2011. This new and in the history of German socio-legal studies unprecedented series of conferences was sparked by the International Conference of the LSA at Humboldt University in 2007, which bore the promising title “Law and Society in the 21st Century”.

The following remarks are a slightly revised version of a paper I presented at that 2007 LSA conference on a panel conceptualized by Helen Hartnell, to whom I owe a debt of gratitude. The panel compared the developments of socio-legal studies in different countries, in particular Japan, UK, USA and Germany. Although considerable time has passed since, I believe that especially the analyses of the developments outlined in my paper keep their validity and timeliness until now. Therefore, I deem it worthwhile posting my paper on the BAR blog. Some adaptations and amendments to the original version have been made especially in the last part (IV.), otherwise only where statements had become outdated or proven obsolete. As this is an ongoing endeavour, I highly appreciate any comments and remarks.

I. Socio-legal Studies in Comparative Perspective: What we can learn from each other

In their paper “Studying European Ways of Law,” presented at the Conference “Law and Society in the 21st Century” 2007, Volkmar Gessner and David Nelken asked whether there can “be such a thing as a European sociology of law” (Gessner/Nelken, 2007: 1). Despite the profound differences in language, culture and academic traditions “which are inextricably intertwined with modes of thinking about, experiencing and studying law” and the objection, uttered by many, that such “contrasting legal epistemes cannot communicate,” Gessner and Nelken find common ground between these nationally shaped fields which could form a basis for an emerging European, as well as a global, socio-legal field. Garcia Villegas states that, “interest in the sociology of law has increased in the United States, Europe, Latin America, and Asia over the last twenty years. The number of publications, congresses, and programs has grown substantially and bears witness to the existence of a dynamic healthy academic field of study. However, the field´s production is fragmented into national clusters, which makes it difficult to grasp its spirit and evaluation in a global perspective” (Garcia-Villegas, 2006: 344).

It cannot be denied that there are vast differences between legal cultures and their specific institutional settings, which, at the same time, have shaped the very outlines of “socio-legal studies” or “sociology of law” in each society differently. That is why it seems advisable not only to take the concept of legal culture as the basis for our endeavour in order to find out more about the peculiarities, but also to explore common features of socio-legal studies on the national and on the trans-national level alike. However, it seems that, despite all differences, the various fields of socio-legal studies in Western Europe, and also several countries abroad, show interesting similarities:

  • Socio-legal studies are mostly opposed to the dominance of a normative, doctrinal or conceptual way of mainstream legal thinking. This can clearly be linked to historical reasons.
  • They take a rather critical stance towards the normative conception of law, either by offering a sociological explanation of how law works in the real world – by empirically examining its effectiveness and impacts and revealing the discrepancies between normative order and social reality – or by questioning the social presuppositions of legal doctrine and conceptual jurisprudence.
  • They are widely regarded as having significant potential for facilitating and rationalizing legal practice and law-making processes as well as for providing important information for the legal reform agenda.
  • However, seen from an institutional angle, in most countries socio-legal studies have been weakly supported, their scholarship is marginalized and, in most cases, scholars engaging in a more sociological, i.e. empirical or critical, approach towards law have had to struggle severely in order to establish or preserve their position within the system of law schools and legal education.

Most striking of these four points mentioned is the fact that, except maybe for the North American law and society movement (Munger, 1998), a persistent lack of institutionalisation of socio-legal studies can be found in almost every academic and educational setting. Furthermore, in some European countries, such as Germany or France, sociology of law nowadays is even facing serious crises. Why is this so? The following issues, such as may be found in, e.g., the Nuffield report (2006, for a critical assessment see Lange 2007), are quite familiar to continental socio-legal scholars:

  • Shortfalls of socio-legal expertise within the law faculties and social science departments;
  • a serious lack of young scholars being trained on and engaging in empirical research on law;
  • the intricacies of interdisciplinary research;
  • an increasing focus on self-referential theoretical and text-based legal doctrine in the law schools.

If we take into account that the relevance of empirical and socio-legal research is fairly undisputed today, the fact that the discipline is still lacking support in various legal educational and academic settings worldwide might, nevertheless, cause considerable surprise. Therefore, it can only be explained if we take the institutional aspect seriously. By using the concept of “institution” I refer to the structures of social order and cooperation with its specific distribution of capital, material and symbolic power, created and preserved by certain formal and informal rules and sets of knowledge (Lipp, 2002: 246).

II. German Legal Culture and its Institutional Background

In his intriguing article on “comparative sociology of law,” Mauricio Garcia-Villegas states: “The comparison of legal fields – with their history, their internal structure, and their power relations – show us how legal and sociolegal ideas have been shaped not only by legal tradition and by the role that the protagonists in the legal field play in legal culture, but also by the distribution of capital inside the legal field and by the relations of power-knowledge that these actors maintain with the society outside the field, in particular with those holding political power and economic power – which are essential for the explanation of the content, the meaning, and the scope of sociolegal knowledge” (Garcia-Villegas, 2006: 345). Referring to Bourdieu´s concept of the “legal field,” Garcia-Villegas depicts the actors in the legal field as constantly struggling “over the appropriation of the symbolic power that is implicit in legal texts” in order to gain the chance to “pronounce the final word about the meaning and ultimate scope of law”. These struggles aim to accumulate symbolic power and, thereby, influence the meaning of law – and simultaneously limit the field of disciplinary endeavour. This theoretical frame might still be elaborated more accurately by drawing in the concept of discourse offered by Foucault. The discourse in the sense that Foucault describes it “is at once controlled, selected, organised and redistributed according to certain numbers of procedures” and operates by “rules of exclusion” (Foucault, 1972: 216). Although Foucault is widely understood as virtually fading out the role of social actors in his concept, emphasising that “the subject” is construed by the discourse itself, it might nevertheless be fruitful for our purpose to combine the concepts of “legal field” and “discourse.” This might especially help us in order to show that symbolic power reproduces itself not only by the performance of actors, but also by the use of certain symbols, meanings and valid knowledge and its iteration, which can be found for instance in normative (hermeneutical) legal methodology and doctrine. At the same time, deviant viewpoints or styles of thinking about law, be they from an empirical or socio-critical points of view, are excluded. The mainstream legal discourse shapes the way in which we understand “law,” and it also shapes our understanding of what the adequate approach of science towards “law” should be, or in what way we should properly study “the law.” It is self-evident that – by examining the legal field and discourse with a specific focus on the institutional aspects – we will find no simple answers, but a rather complex web of important factors, some of which I will try to outline in the following.

For this purpose, we have to go back into the history of legal scholarship. The German legal culture was shaped significantly in the first half of the 19th century. In opposition to the claim for the codification of the civil law for the entirety of Germany, inspired by the national and liberal spirits of the bourgeoning bourgeoisie (Bürgertum), the Berlin jurist Carl Friedrich von Savigny, an arduous supporter of the monarchy, and the Historical School advocated the purely historical and systematic analysis of Roman pandectist law at the universities. This approach had two principal consequences for the methodology of law and the further development of the legal field: firstly, the Historical School managed to establish “jurisprudence” as a positivistic and (politically) “neutral” science at the universities based solely upon textual and conceptual analysis of the historical material; and secondly, by confining legal science entirely to the conceptual study of Roman Law, the scholars of the Historical School and conceptual jurisprudence (Begriffsjurisprudenz) moved the field away from any efforts which favoured democratic reforms of the feudalistic political and legal system. The historical approach promoted a policy of laissez-faire only in the economic sector, which the monarchic authorities were inclined to concede. Savigny´s doctrine underpinned the political “status quo,” and thereby supported the policies of the absolute rulers. In return, lawyers were primarily trained and recruited for higher administrative posts and, hence, became important sustainers of the absolute state. Although Savigny´s concept of Volksgeist (“spirit of the people”) as a source of the historical law had also inspired some socio-legal scholars, as Garcia-Villegas mentions (2006: 350), the actual aim of the Historical School had never been to foster a sociological perspective on law. On the contrary, as Dieter Grimm puts it, Savigny´s statements about the relationship between law and reality clearly show that their actual correspondence was not seen as a goal, but that it was simply presumed, and that law does not attain its value from its present social function, but from its historical formation (Grimm, 1987: 355). Rejecting the call for a codification of the civil law, Savigny also maintained the privileged position of legal scholarship over the legislator. It should be the exclusive task of legal scholars to “recover,” refine and systemise the law. However, this so-called “expert doctrine” (Spezialistendogma) was confined entirely to the civil law, whereas, insofar as the administration was concerned, the legislative power of the absolute monarch remained untouched. Since the outlines of the legal field set up by the Historical School survived for many centuries, legal scholars managed to accumulate a considerable amount of (symbolic) power through engaging in legal doctrine.

The thesis by Garcia-Villegas: “The closer the law is to the state, the stronger the idea of the autonomy of legal doctrine, and the separation between law and social sciences” (Garia-Villegas, 2006: 346) can be confirmed also for the German legal discourse. There have always been close links between legal scholarship and the state. Law professors have traditionally been close to political power, but at the same time distanced themselves from the “political” by constructing a positivist and formalist science of law. Kommers states: “… the one notion that emerges relatively intact, in contrast to American [legal] theory, is the reality and ubiquity of the state. German legal theorists have commonly assumed that law and justice would thrive solely within the bosom of that perfect society known as the state” (Kommers, 1997: 41).

The concept of legal positivism became ultimately prevalent at the end of the 19th century under the stable regime of the “class compromise” (Klassenkompromiss) between the bourgeoisie and the monarchic leadership, barring the labour class from participating in power and social wealth. Influenced by the Neo-Kantian movement in science, law was considered as being a purely normative endeavour. Legal theorists drew a sharp distinction between the “ought” and the “is,” between the law on the one hand and morals and empirical facts on the other. Blurring that clear distinction would be flawed as “methodical syncretism.” Lawyers were schooled in that tradition of positivism to envision law as a self-contained, rational, deductive system of rules and norms, entirely separated from the domains of politics, psychology and sociology. “Law, in short, rests on an independent foundation of reason and logic. The concept of judicial decision generated by this mode of legal thought is the idea of a court – an autonomous legal institution – entrusted with the systematic … application of fixed rules of law” (Kommers, 1997: 40).

However, socio-legal approaches had their proponents, too. Along with other scholars of the “Free Law School” (Freirechtsschule) Eugen Ehrlich in his path-breaking work of 1913 proclaimed that the sociological inquiry of the living law (Das lebende Recht) was the genuine task of the science of law, whereas doctrinal jurisprudence should be regarded as being nothing more than a working technique for legal practitioners (Ehrlich, 1913). It must be noted that their agenda was not far removed from that of the practising lawyers as suggested by Garcia-Villegas (368), since it was one of the aims of the movement to strengthen the role of the judges (Richterperönlichkeiten) by emphasising their scope of discretion in legal reasoning. Nevertheless, the critics of the 1920s and 1930s – many of whom were of Jewish origin or influenced by left-wing political thought – remained “outsiders” in the legal academia as well as in the judiciary, mainly for institutional reasons. They were not accepted by the vast majority of law professors, who were keeping their hold on the appointment of new professors.

Anti-formalist modes of legal interpretation became fairly popular in mainstream jurisprudence during the Weimarer Republik with its continuous state of social and political crises. Courts had to react to inflation and to the temporary collapse of the smaller business economy. Many legal scholars, most of them still attached to the remnants of the monarchic state, wanted to distance themselves from the new democratic state, its politics of compromise and social interventionist law-making. Though the positivistic and conceptual mode of legal thinking remained prevalent, by movements such as Interessenjurisrudenz legal scholarship and practice became more adapted to taking the objectives of norms, the telos, and – to a certain degree – also the social context and impact of legal decisions into account. However, until today the doctrinal study of law has dominated legal education as well as the research agendas of the law faculties. It is being understood as the genuine task of jurisprudence as the “science of law”. Kommers holds: “And yet, for all that … the approach to legal reasoning in Begriffsjurisprudenz has outlasted positivism and has had a lasting influence throughout Europe” (Kommers, 1997: 41). Alec Stone-Sweet states: “[The] maintenance of the law/politics distinction as an article of disciplinary faith … has reproduced itself over many generations. That Continental legal scholarship is highly formalist, relatively immune to critical perspectives on the law, largely disinterested in questions of legal interpretation, but nonetheless committed to enhancing the prestige and legitimacy of doctrinal and judicial power are tendencies that have been widely commented upon” (Stone-Sweet, 2000: 147).

The dominance of doctrinal jurisprudence is upheld not least by the legal educational system. Legal education is provided mainly by law professors at the universities. However, the final examinations (First State Examination in Law, Erstes Staatsexamen, similar to a law degree in England) are not taken at the universities themselves, but rather at a special state office. Therefore, the required core subjects taught at the law faculties are determined by special laws on judicial education (Juristische Ausbildungsordnungen) of the states (Länder). This has significant effects on the law faculties’ structure and has a significant influence in their institutional orientation: scholars who do not have a state examination in law and, therefore, are not deemed to be experienced enough to teach doctrinal jurisprudence, have almost no chance of being appointed for a tenured position at a German law school. One of the very few non-lawyers ever to have been appointed as professor at a law department was sociologist Hubert Rottleuthner from the Free University Berlin in 1972.

III. History of Sociology of Law (Rechtssoziologie) in the Federal Republic of Germany[1]

At the beginning of the 1970s, sociology pressed for greater recognition in legal education. The title of Rüdiger Lautmann´s book, Rechtssoziologie vor den Toren der Jursiprudenz (“Sociology Before the Gates of Jurisprudence”) (1971), expressed a common striving toward bringing more socio-legal knowledge and sociological expertise into German law faculties. A few years earlier, sociologist Ralf Dahrendorf and later Wolfgang Kaupen had conducted empirical studies on the “social background, education and typical behavioural patterns and character traits of German lawyers” (Kaupen 1969: 63, Dahrendorf, 1961). Especially Kaupen came to a very unflattering and rather daring conclusion: the lawyers in the early Federal Republic, he claimed his research showed, would be risk-averse, obedient and socially backward. His theses were widely understood to support the allegation of “class justice” (Klassenjustiz), a position which later had to be largely revised, when Hubert Rottleuthner and others found out that organisational and occupational factors had a much greater influence on the judges´ adjudication than their social background and upbringing (Rottleuthner 1982: 82). Thereby, the history of the sociology of law (Rechtssoziologie) in the Federal Republic in Germany started with a controversy on the social background of lawyers and, from the very beginning, caused public interest as well as political polarisation. In 1972 Wolfgang Kaupen, Fritz Sack, and Erhard Blankenburg, as well as lawyer/sociologist Rüdiger Lautmann, took the initiative to found the Sektion Rechtssoziologie within the German Sociological Association (DGS). The agenda of the founders was mainly to criticise and reform the education and modes of working of lawyers. Legal scholars should strike new paths, they said, and apply the methods of social sciences and, thereby, learn how to justify their findings with regard to the societal reality and the social impacts of their decisions. They put forward the idea of lawyers as “social engineers” (Pound). Under the new government formed by the Social Democrats and Liberals and lead by the chancellor Willy Brandt, a climate for reforms in academia arose. After the culturally and politically conservative era of Konrad Adenauer, when Germany´s legacy of the 3rd Reich had actually been not addressed publicly, the German jurists were confronted with their disreputable recent past. It was revealed that leading scholars, such as Ernst Forsthoff, Theodor Maunz and Karl Larenz, who had an important influence on jurisprudence in the early years of the Federal Republic as well, had been engaged in National Socialism and had fostered its ideology in law. Despite these revelations, the new generation of law professors tried to dismiss the displeasing past by distancing themselves from their predecessors whenever it seemed necessary, but kept to their traditions and modes of legal thinking wherever it was possible. However, in legal theory there was a fresh movement towards anti-formalism at that time, since legal positivism was charged with the allegation of having availed the Nazi dictatorship by demanding strict adherence to the authority of the lawmaker.

The agenda of political and social reforms set up by the new government put the conservative law faculties under pressure to open their teaching and research to social sciences. However, even the liberal and more reform-oriented law professors did not want to associate with the critical legal sociologists such as Kaupen and others. As Thomas Raiser remembers, their highly critical approach seemed rather daunting for those coming from the law faculties. Lawyers who were interested in the sociology of law preferred to engage in empirical research on law, framed for helping them with specific problems emerging from normative questions, and, therefore, being pre-selected by the lawyers themselves (Rechtstatsachen­forschung) (Raiser, 1998: 13). The borders between the disciplines in the German academia turned out to be the crucial institutional barrier for a real cooperation between law and social sciences at the universities. It also became clear very quickly that the sociological teaching at the law schools should be conducted by the law professors themselves rather than by trained sociologists – “jurists with an additional office,” as Gerd Bender did once call them (Bender 1994: 106). In 1976, the Vereinigung für Rechtssoziologie (“Association for Sociology of Law”) was founded by a number of reform-oriented law professors, amongst them Thomas Raiser, Jutta Limbach, Winfried Hassemer and Wolfgang Hoffmann-Riem. From the beginning, one of the major aims of the Association has been to introduce the social sciences into legal education. Though the name of the Association originally referred solely to “sociology” as one of several disciplines within the much broader line of social sciences, it has always understood itself as “a forum for everybody who, from a legal or social scientific perspective, is studying the relationship between law and society”. Changing its name into Vereinigung für Recht und Gesellschaft (“German Association for Law and Society”) in 2010 has made its supposedly broad interdisciplinary approach even more visible (see www.rechtssoziologie.info).

Despite the developing institutionalisation Rechtssoziologie had to face considerable resistance at the law faculties. Among many traditional legal scholars it was ill-reputed because of its socio-critical and reformist orientation. Klaus F. Röhl depicts it very clearly: “That was a time when many – actors as well as observers – mixed sociology with socialism. The student’s movement, which had experienced its climax in 1968, was hardly abated. Sociology was extensively affected by Marxism and by the Frankfurt School” (Röhl, 2005: 171). Some reformist law schools, such as Bremen, Hannover, Bielefeld, and Hamburg could never fully dissociate themselves from that “stigma.” Those universities introduced a reformed one-phase education of lawyers, which dispensed with the traditional system of state examinations and the mandatory practical stage (Referendariat) in order to include social sciences in the curriculum. Since the one-phase legal training had been introduced half-heartedly and met huge scepticism by the traditional legal scholars, it was rather easy for the opponents to let the reform fail. In 1984, the Bundestag (German Parliament), again dominated by a conservative-liberal majority, resolved to reintroduce the traditional two-stage legal educational system in every reformed law school.

If we look back at sociology of law in Germany during the 1970s and 80s, we see the following features: as a critical endeavour it was meant to raise the social backgrounds of justice and reveal the discrepancies between the law-on-the-books and the living law, the social reality; as a means for social steering it should go along with and assess legal reforms as well as help to monitor and improve implemented rules. Lawyers hoped that by incorporating sociological knowledge in jurisprudence, legislative processes and court judgements could be based upon empirically rational findings. This approach can be called “sociological jurisprudence”, similar to the movement in the US, in contrast to a sociology of law as sociology, which primarily engages in describing and explaining law as a social phenomenon (Machura, 2001: 41).

Accordingly, Rechtssoziologie was mainly deemed practice-oriented, many even degraded it as an “auxiliary science” of jurisprudence. Sociological expertise, according to the lawyer´s point of view, should be given whenever empirical data would be needed, or a better “understanding” of social reality could help to “improve” legislation.

The reform agenda had failed by the end of the 1980s at the latest and sociology of law had to content itself with a minor role in the academic system. Engaging in socio-legal studies was, nevertheless, quite beneficial, particularly for the law professors within the growing community of legal sociologists. Several socio-legal scholars, amongst them Dieter Grimm, Jutta Limbach, Winfried Hassemer, Wolfgang Hoffmann-Riem and Brun-Otto Bryde, were appointed as justices of the German Federal Constitutional Court (Bundesver­fassungs­gericht).

There was a common mood that the opportunities to attain something greater for the subject had passed. Criticism of jurisprudence, and lawyers in particular, became less popular. Questions of governance became the main subject of political sciences, their implications on law were deemed less important. Eventually, the frightening image of the rigorously conservative lawyers fell into disuse. At the beginning of the 1980s even the Federal Constitutional Court did not show signs of an anti-reform agenda anymore. Rechtssoziologie became a basic course in legal education in almost all of the German states (Bundesländern). Practically this meant the universities implemented a two credit-hour undergraduate introductory course on sociology of law offered to students in their second or third semester.

Since the mid-1990s the minimum institutionalisation of Rechtssoziologie seems to have become even worse. Many, such as Thomas Raiser in the Neue Juristische Wochenschrift, the leading German law journal (Raiser, 2007), have rightly talked about a serious crisis. When older socio-legal professors retire, their professorships are not reoccupied with younger scholars coming from the field, but rather with doctrinally trained and working colleagues, if they are not simply abolished. Today, there are only about 10 to 15 chairs remaining in Germany to hold a denomination for sociology of law (Wrase, 2006: 296). Gessner and Nelken state: “… just when the subject is most needed, many continental law faculties are closing down non-doctrinal approaches to law so that their entire socio-legal population is reduced to a few dozens of academics” (Gessner/Nelken, 2007: 2); this is especially true for Germany.

IV. Outlining the Future of Socio-Legal Studies in Germany

Despite the critical nature of the situation, which, as I mentioned, hasn´t altered significantly since I held this talk in 2007, there are still reasons for a more optimistic view of the future. The fact that there seems to be a growing perception within mainstream legal thinking that engaging in purely doctrinal and theoretical work would lead legal academia backwards and weaken its potential for research (Schlink, 2006), implies that some changes are on the way. There seems to be a growing interest in critical approaches within social sciences as well as in law, challenging traditional concepts and modes of thinking. The report by the German Council of Sciences and Humanities, “Prospects of Legal Scholarship in Germany”, has made an important contribution to the debate. In the report the council, as a key government adviser on sciences and academia, comes to the conclusion that further efforts in order to foster diversity, internationalization and multidisciplinary in legal research and scholarship have to be made (for an elaborated discussion of the recommendations see verfassungsblog). There is also a growing understanding within the socio-legal community itself that the field must become aware of its common features, instead of continuing to segment into sub-disciplines like legal anthropology, sociology of law, political sciences of law, etc. In particular, to recruit and encourage younger scholars will be one of the major tasks for the future. A first step has been taken at Humboldt University for instance by founding the Law and Society Institute (LSI), a research institute at the Law Faculty which aims at integrating “the long tradition of German Sociology of Law with the international Law and Society research, and to supplement doctrinal legal thinking with the systematic inclusion of social science and the humanities.” Furthermore, we can see a growing need for empirical research in order to support and rationalise legislative activities. The Federal Government (Bundesregierung) has committed itself to undertake an impact assessment in the run-up to every legislative initiative (Gesetzesfolgen­abschätzung). Finally, the law faculties are becoming more and more aware that purely doctrinal research will not help them to gain reputation in interdisciplinary research in the growing competition between universities nationally as well as internationally. External funding organisations are fostering interdisciplinary research in order to break up impedimental interdisciplinary boundaries.

All these developments, even though they might also have some unpleasant effects on the traditional law faculties, are favourable for a renewed socio-legal project. In order to avoid passing up that opportunity, Rechtssoziologie should be understood as a transdisciplinary endeavour (Bora et al., 2000). While interdisciplinarity normally suggests a temporary cooperation between scholars coming from different disciplines, the adoption of a genuine transdisciplinary approach would lead to permanent changes within the academic system by altering the professional and disciplinary orientation and creating new approaches (Mittelstraß 2003; Baer 2005). Such a progressive scientific arrangement could be achieved by creating an open field or network for socio-legal studies in Germany, which might be similar in some ways to the Law and Society movement in the US.

 

References

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[1] This paper focuses on the institutional development of sociology of law (Rechtssoziologie) within the German legal field. For a more elaborated discussion, see Wrase (2006).

 


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