Can sociological inquiries play an important role in addressing juristic issues? Are they debarred from doing so by a necessary separation of ‘is’ and ‘ought’ – by the divide between a sociological concern to understand social facts and a juristic concern to interpret and develop legal norms? This chapter argues that the fact–norm divide may not be an absolute bar. Much depends on the ways in which the role of the jurist and the scope of legal sociology are understood. While sociological inquiries cannot solve normative problems of law, they can reveal and explain much, not only about the contexts in which juristic problems are addressed, but also why these problems take the form they do, why certain kinds of juristic arguments may tend to prevail over others, and what the parameters of meaningful juristic debate are likely to be in specific contexts.
This chapter assesses current prospects for sociological jurisprudence, which it defines as an approach to jurisprudence that stands between - and has different aims from - both sociology of law and legal philosophy. However, sociological jurisprudence must be informed by these other scholarly fields. It serves practical juristic needs rather than the disciplinary ambitions of sociology or philosophy, but it necessarily relies heavily for its practical relevance on the insights of contemporary social science and on analysis of legal values. The chapter evaluates the legacy of previous scholarship in sociological jurisprudence, including the contributions of Selznick, Teubner and Northrop. In particular, it considers what remains of value and what should be discarded in Roscoe Pound’s sociological jurisprudence which has often, in the past, been seen as demarcating the field in the Anglo-American context.
This chapter argues that the range of authority claims now being made to support transnational regulation, and the kinds of legitimacy that these claims attract, cannot be adequately analysed in the terms that jurists usually assume in considering Western state law. A temporary distancing from orthodox juristic concepts is needed: to survey the range of authority claims now made and widely accepted, to consider how these can be compared and assessed, and to avoid rigid preconceptions about their potential legal significance. The chapter claims that Max Weber’s typology of legitimate domination can usefully guide a socio-legal approach that treats authority as a matter of practice and experience. Weber’s concept of charisma offers a partial template for studying kinds of authority that, at present, escape sufficient juristic attention. Juristic engagement with the diversity of forms of transnational authority now recognised in practice must base itself on socio-legal study of these forms and their conditions of existence. Only with the aid of such study can jurists gain perspective on the formidable challenges of negotiating a viable, shifting normative ordering of transnational regulation.
Roger Cotterrell and Maksymilian Del Mar
This chapter concludes the volume, offering more speculative reflections on the central themes of the book, including whether a minimal conception of authority for the purposes of transnational legal theory is possible / desirable. The chapter also consider the various methodological challenges of theorising authority transnationally.