Economic and Sociological Approaches To Institutions: Economy, Society And Law

Examined in this paper are some important paradigmatic differences between novel economic institutionalism as espoused by the new institutional economics and sociological institutionalism as advanced by economic sociology. Just as the old and the new institutional economics, economic institutionalism and sociological institutionalism display important differences in their assumptions, domains and methodologies. The paper also takes a look at the possibility for multidisciplinary integration, in a multiple-paradigm approach, of economic and sociological institutionalism, particularly law and economics (economic analysis of law) and law and society (sociology of law) literatures, in these times of interdisciplinary social analysis. Since in the current literature comparative analyses of economic and sociological institutionalism in general, and economic and sociological approaches to legal institutions in particular, are relatively rare, the paper attempts to fill in a gap in this respect.     

Toward an integration of economic and sociological approaches?

This article answers the question whether sociology of law and law and economics can be unificd into one integrated science. First, it is argued that an integration process inside law and economics has taken place, integrating most schools and partial analyses into one mainstream law and economics. Second, it is argued that there are no natural barriers against an integration of sociology and economics. Purely economic theories cannot and do not exist. What is calledeconomic analysis of law is basically a mixture of, for instance, 70 percent economics, 10 percent sociology, 10 percent psychology, and 10 percent other sciences. In addition, there is no such a thing as a purely sociological concept; concepts are sociological only in the sense that they are invented by people who call themselves sociologists.Nevertheless one should not expect that such a richer social science will lead to fundamentally different predictions and policy recommendations than those derived from the current simplistic economic analysis of law. The aspects studied by sociologists but assumed away by legal economists to date have in most cases no influence on the determination of (optimal) legal rules or on the long-run effects of legal rules.     

Knowledge on Tap: Police Science and Common Knowledge in the Legal Regulation of Drunkenness

Although scholars have devoted considerable attention to the formation, modification, and dissemination of knowledges in and around the legal complex, few systematic inquiries have been made into the sociology of legal knowledges. In this paper, we focus on two areas of law–liquor licensing and drunk driving–and contextualize their development from the perspective of police science. We document the ways in which contemporary police science authorizes a "common knowledge," which is not to be confused with lay knowledge, or even trade knowledge. Rather, the "common knowledge" that is authorized is what legal authorities believe everyone should know, despite any lay or trade knowledge individuals may have. This analysis demonstrates the need for further work on the ways in which knowledges are formed and authorized within law, with particular emphasis on documenting how a "responsibility to know" comes to be deployed beyond the state.     

Law in Culture

Abstract. The relationship of law and culture has long been a concern of legal anthropology and sociology of law. But it is recognised today as a central issue in many different kinds of juristic inquiries. All these recent invocations of the concept of culture indicate or imply problems at the boundaries of established thought about either the nature of law or the values that law is thought to express or reflect. The consequence is that legal theory must, it seems, now systematically take account of the notion of culture. The present paper asks how this might best be done. I argue that a concept of culture, as such, is of limited utility for legal theory because the term “culture” embraces a too indefinite and disparate range of phenomena. But legal theory needs conceptual resources to consider at a general level the relations of law and culture. This paper suggests that these resources should include, above all, a rigorous distinguishing of different abstract types of community. Legal theory requires a sociologically‐informed concept of community. What is encompassed by the vague idea of culture is actually the content of different types of social relations of community and the networks (combinations) in which they exist.     

Blind Insights? The Limits of a Reflexive Sociology of Law

Is there a danger that sociological approaches to law end up creating law in their own image? Can they set their own limits? Could they help further rather than hinder the process by which law becomes more technocratic? Continuing a debate with Roger Cotterrell, this paper offers an examination of Cotterrell's suggestion, in the last issue, that these dangers can be avoided provided that sociological interpretation of legal ideas recognizes an allegiance to law rather than to academic sociology. By contrast, I propose a reflexive strategy intended to invite sociology to examine the ways in which its discourses and practices are both similar to but also different from those of law.     

论诸法学流派对法律方法的理论支援

法律方法理论不仅受规范法学理论的制约和支持,而且也受其他法学流派的制约和支持。不同法学流派所支持的具体法律方法不尽相同。如价值法学之于价值衡量、社会法学之于事实替代、规范法学之于效力识别、经济分析法学之于利益衡量、多元论法学之于法律续造等,都更容易产生支持效果。尽管不同法学流派各自支持不同的法律方法,但这不否定某一法律方法受多个法学流派理论支援的情形,也不否定一个法学流派可以支持多种法律方法的情形。     

Max Weber on the Labour Contract: Between Realism and Formal Legal Thought

Although Max Weber's review essay of the first part of Philipp Lotmar's The Labour Contract may appear peripheral to his overall contribution to legal sociology, it contains important insights on the relationship of law to economics, the utility of sociological empirical research for jurisprudence, the epistemological gap between 'legal dogmatics' and the sociology of law, and the fundamental distinction between state and non-state law in properly understanding the developmental logic of labour law.
In the review, far from appearing as a rigid partisan of positivistic legal formalism, Weber admits of a kind of 'legal pluralism' as a necessary path to the sociology of law, and allows some measure of realism, when celebrating Lotmar's analysis of the social facts of law as a precondition for proper juristic treatment of the labour contract. Nevertheless, Weber remained distrustful of legal realism which, for him, was founded on an epistemological confusion between 'is' and 'ought'.     

The Concept of Jurisprudence*

Abstract. The first part of this article contains (i) considerations as to the relationship between jurisprudence and legal dogmatics, legal philosophy, and sociology of law; (ii) considerations about the status of jurisprudence both as a meta- and an object-theory. These lead to the suggestion that jurisprudence should be defined as a general juristic theory of law and legal science. In the second part, the character and elements of this definition are explained systematically. The article's main thesis is that jurisprudence is not distinguished from legal philosophy and sociology of law by its subject or its method, but by the specifically juristic research aspect or perspective it is based upon.     

Academic perspectives on teaching international family law in higher education institutions in England and Wales

ABSTRACT

The increasing prevalence of family law disputes in England and Wales with an international element is well documented in the development of domestic legislation, case law and family practice. However, despite changes to the legal landscape and the academic recognition of international family law as a legal subject, it is still often disregarded within the undergraduate family law curriculum or as a standalone module. This article explores the development of international family law in England and Wales and presents the findings of a national questionnaire into whether international family law is taught as part of the undergraduate curriculum. The article also explores what barriers exist to including international family law topics. To conclude, the author offers some general advice about incorporating these topics into the curriculum to ensure that students are equipped to deal with the realities of family practice in England and Wales.     

经济法律责任独立性探讨

对法律责任划分标准的正确理解,是认识经济法律责任独立存在的前提条件。经济法律责任是以法律责任的部 门法性质为标准对法律责任进行分类的结果,且经济法律责任具有其独特性。独立的经济法律责任体制有利于 责权利效相统一原则的实现;更能体现经济法的"社会本位"性;充分发挥经济法作为独立部门法的作用;促进经 济法主体守法和执法。构建时,必须遵循经济法自身体系要求,体现经济法律责任自身特色,形式上可以与其他 部门法形式相交叉,可通过经济法中的民事责任、经济法中的行政责任、经济法中的刑事责任、经济法中的经济责 任的方式来实现。     

The sociology of the sociology of law: A view from economics

The sociology of law appears to be a weak field in the United States, in comparison to other indisciplinary fields of legal study, notably economic analysis of law. Although American legal sociologists have done important empirical work, particularly on the litigation process and on the legal profession, the focus of American sociology of law has been narrow, theoretically limited, and, empirically, limited in both scope and method. These deficiencies may reflect the methodological limitations of Max Weber, the most influential figure in the history of sociology in general and sociology of law in particular. The failure of legal sociologists to borrow theoretical and empirical tools from sociologically minded economists such as Gary Becker is especially regrettable, and may be due to inaccurate perceptions of the political valence of economic analysis of law, sociology's traditional skepticism about the knowledge claims of other disciplines, professional envy, and misunderstanding of the economists' conception of rational choice.     

争议与困惑:经济法中的法律责任研究述评

经济法学界对法律责任已有20多年的研究,在法律责任的一般理论基础上形成了多种学说。在这些研究中,经济法中的法律责任的称谓、独立性问题争议尚存;对经济法中的法律责任的特点形成了一定程度的共识;在具体责任形态方面,经济法通过直接和间接方式承继了传统法律责任,同时又以企业社会责任、缺陷产品召回、惩罚性赔偿、纠正性广告等形式展现了经济法中法律责任的特色。相关研究的争议和困惑反映了经济法学理论研究中较为普遍存在的概念术语范畴体系的矛盾冲突,这主要是经济法学非传统的新兴交叉学科特征所决定的,用"经济"一词在传统术语上贴标签式的研究进路值得反思。     

Can There Be an Artifact Theory of Law?

The idea that particular legal institutions are artifacts is not new. However, the idea that the “law” or “legal system” is itself an artifact has seldom been directly put forward, due perhaps to the ambiguities surrounding philosophical inquiries into law. Nevertheless, such an idea has recently been invoked more often, though not always developed in detail in terms of what the characterization of the “law” or “legal system” as an artifact entails ontologically, and what consequences, if any, this has for philosophical accounts of law. As a result, the primary aim of this paper is to attempt an inquiry into what the claim that “law” by its nature or character is an artifact entails, and what an artifact theory of law might look like.     

认识全球化的"问题化"进路——对中国法学"全球化论辩"中理论问题的追究与开放

对全球化本身做"问题化"理论处理首先便要求对中国法学的"全球化论辩"进行分析和反思,因此在本文中,我首先把中国法学之"全球化论辩"的"四步骤套路"转换成了一种参照性背景;其次通过把"全球化是经济全球化还是多维度的全球化"与"法律全球化"这两个问题转变成了对具体问题的分析进路,对中国法学的"全球化论辩"进行一般性的厘清和分析:在对中国法学两种对立的全球化论说的分析中,我批判了那种"经济主义"的全球化论说,认为全球化是一个多维度的既依凭民族国家又脱离民族国家的社会变迁过程;同时,本文也分析了与上述两种全球化学说紧密联系的中国法学学者有关"法律全球化"争辩之"肯定"、"否定"和"折衷主义"三种观点及其背后不同的理据。     

Why Must Legal Ideas Be Interpreted Sociologically?

Sociology of law and socio-legal studies are sometimes declared unable to give insight into the nature of legal ideas or to clarify questions about legal doctrine. The idea that law has its own 'truth'– its own way of seeing the world – has been used to deny that sociological perspectives have any special claim to provide understanding of law as doctrine. This paper tries to specify what sociological understanding of legal ideas entails. It argues that such an understanding is not merely useful but necessary for legal studies. Legal scholarship entails sociological understanding of law. The two are inseparable.     

对失地农民弱势群体的法学考察——基于失地农民法律权利弱势性角度的分析

目前,人们对失地农民的关注明显不足。失地农民失去的不仅是土地,而且是附载在土地上的一切权利。对失地农民这一特殊概念的法学内涵进行揭示,避开弱势群体一般意义上的外观弱势性表现,深入其权利弱势结构内部对失地农民予以界定和进行理性思考,是十分必要的。     

近代法律概念理论的语境分析——以奥斯丁和丘汉平为比较视点

通过以奥斯丁和丘汉平为个案的中西比较,对法律理论的周边语境进行分析,是新型知识社会学在法学中的一种探索,可以更为深入地理解近代法学理论的历史发动,进而深入理解发展至今的世界法学运作的内在隐蔽含义。     

From Public Sociology to Public Philosophy: Lessons for Law and Society

The late Philip Selznick's final book, A Humanist Science, examines the role of values and ideals in the social sciences, including the study of law and society. Throughout his academic career, Selznick was committed to what he called “legal naturalism,” a sociological version of the natural-law perspective, while his critics continue to adhere to various forms of positivism. But the age-old opposition between natural law and legal positivism today may be giving way to the quest for public sociology—a sociology that promotes public reflection on significant social issues and thus functions as a moral and political force. A Humanist Science ends with a strong plea for public philosophy. Public philosophy overlaps with public sociology but is a much stronger concept. Selznick's message of public philosophy may be another of his enduring contributions to the field of law and society.     

法科教育中法律仪式教育的意义及其实现

法律仪式作为仪式的一种特殊形式体现在法律运行的整个过程之中。法律仪式有规则化的（制度化的）与未被规则化的之分。规则化了的法律仪式零散存在于我国法律法规之中,呈碎片化特征。法律仪式教育在我国法科教育中散见于部门法学的教学中,内容多为规则化了的法律仪式。法学教课书中并没有法律仪式这一概念,未被规则化的法律仪式在法科教育中是不存在的。法律仪式教育对法科学生的技能与职业道德的培养有着积极意义。     

法人类学视角的法：静态与动态

法律界定的不同,是不同法学流派展开其作业、并呈现给世人以不同法律知识和法学理论的逻辑前提.法人类学虽然是崇尚经验和事实描述的学术流派,但它并不排斥对法律概念的关注——因为法律的事实描述不能自动回答什么是法律的问题.不仅如此,法人类学发展史上的一些大师对法律在各自立场都做出了符合人类学命意的解释.法人类学视角的法,可二分为两个观察视角,在静态的视角上,它体现为接受、规范、拘束和可诉四方面;在动态的视角上,它又体现为地域、文化、多元和流变四方面.