Legal Revolutions and the Sociology of Law
| Author | Chris Thornhill |
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| DOI | http://doi.org/10.1177/0964663914541591 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2014, Vol. 23(4) 491–516
Legal Revolutions and
ª The Author(s) 2014
Reprints and permission:
the Sociology of Law
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0964663914541591
sls.sagepub.com
Chris Thornhill
University of Manchester, UK
Abstract
This article critically examines the importance of Hauke Brunkhorst’s work for the
sociology of law, arguing that it provides new bearings for contemporary legal–socio-
logical research. It pays particular attention to his methodological fusion of Systems
Theory and Critical Theory and to the analysis of the correlation between national and
cosmopolitan political structures in his theory of legal normativity. The article concludes
by offering an alternative framework for observing the sociolegal processes at the center
of Brunkhorst’s work.
Keywords
Legal revolutions, sociology of law, critical theory, systems theory
Hauke Brunkhorst and the Sociology of Law
Interpretations of Hauke Brunkhorst’s work generally examine his theoretical inquiries
primarily in terms of their resonance for social theory and philosophy. However, it is a
measure of the significance of his research that it stands up to critical interpretation in a
number of separate disciplines.1 On this basis, this article attempts a reconstruction of
his work from the perspective of the sociology of law. Indeed, Brunkhorst’s work
contains a series of implications that have the highest importance for contemporary
legal–sociological inquiry, and his theories contribute to the core debates of this socio-
logical subdiscipline in vitally significant fashion.
The most obvious legal–sociological implications of Brunkhorst’s work are
methodological in character. At the center of his thought is an attempt to connect
different lines of theoretical reflection, which are often seen as irreconcilable. This
Corresponding author:
Chris Thornhill, School of Law, University of Manchester, Williamson Building, Oxford Road, Manchester
M13 9PL, UK.
Email: christopher.thornhill@manchester.ac.uk
492
Social & Legal Studies 23(4)
produces a methodological framework which is able distinctively to re-orient both
legal sociology and more general sociological inquiry.
Most evidently, his work brings together the two theoretical threads that polarized
German social theory through the later decades of the 20th century. That is, it connects
Critical Theory, in the neo-Marxist spirit of the Frankfurt School, with Systems Theory,
derived to a large extent originally from Talcott Parsons, but mediated through and con-
solidated by Niklas Luhmann’s neofunctionalist theory of social systems, which is asso-
ciated with the University of Bielefeld. In its methodological ambition, the combination
of these two distinct analytical lineages –Systems Theory and Critical Theory – seems to
reflect a sharp sense that, in the first decades after 1945, something went very wrong in
the development of German social theory and that the antagonism between the leading
sociotheoretical camps, located primarily in Frankfurt and Bielefeld, was both unneces-
sary and methodologically deleterious. The methodological basis of Brunkhorst’s theory
can be seen as an endeavor to rectify the damage and loss of explanatory capital caused
by this deep conceptual schism.
This theoretical fusion has the result, on one hand, that Brunkhorst takes from Critical
Theory the assumption that theory is normatively implicated in the formation of society,
and, at least implicitly, he suggests that theoretical activity must be driven by a commit-
ment to social solidarity, and it must actively promote the general realization of human
freedom: it takes the emancipatory obligation of theory, in the sense of determinate nega-
tion promoted by the earlier Frankfurt School, extremely seriously (Adorno, 1966: 365).
Unusually, however, Brunkhorst deviates from the methodology of the earlier Frankfurt
School because he proposes a concept of critical theoretical activity which attempts to find
theory’s emancipatory practices, not solely in acts of critical negation, but in the objective
sociological observation of societal norms (usually formulated in law). To support this
approach, he explains that, in each distinct stage of its evolution, modern society has con-
solidated its structure by translating ideas of freedom into positive legal form, so that orig-
inally critical, even transgressive ideas are positivized as legal constraints on social
interaction and on the organization of public life. For this reason, he argues that emanci-
patory ideas are already – however inchoately – manifest and active in the normative order
of society, and meaningful concepts of freedom constitute the adaptive evolutionary basis
of society as a whole and of its legal system in particular, at different points in its historical
construction. Brunkhorst thus re-directs Critical Theory toward a historical–sociological
analysis of the social origins and the objective articulation of the ideas of freedom, to the
defense of which theory is obligated, and he endeavors to show how norms supporting
human emancipation are founded in operative – in fact, evolutionary – processes, which
are deeply embedded in the legal structure of society.
In this respect, Brunkhorst attempts to sustain the critical understanding of theory pro-
posed by the Frankfurt School by projecting a normative idea of freedom which is
founded neither in formal/deductive principles in the sense of Kant nor in acts of deter-
minate negation in the sense of Adorno but rather in sociologically formative legal rea-
lities. On this approach, the critical task of theory is to identify and consolidate norms of
freedom in their concrete legal realization. To some extent, of course, this approach is
prefigured by the paradigm-shifting rejection of the anti-legalist stance of the early
Frankfurt School, which gave rise to the second generation of Critical Theory.2 That
Thornhill
493
is, his approach is shaped by Habermas’s (1973: 20–21) account of the rationalization of
the lifeworld as a process of progressive norm production, and it reflects Habermas’s
claim (1976: 262) that under determinate circumstances, law can act as a bearer of com-
municative norm rationality, proposing socially generalizable principles of liberty. How-
ever, Brunkhorst proposes the highly distinctive argument that the overarching form of
society is dialectically shaped by real and evolved ideas of freedom, such that critical
social theory is able to give authority to its normative claims by examining the legal
norms of freedom in historically elaborated contexts.
Brunkhorst’s methodological position between Critical Theory and Systems Theory
has particular relevance to the sociology of law. On one hand, this position contains a
concept of law which clearly follows Luhmann in interpreting the law, in evolutionary
perspective, as an essentially positivized medium of functional adaption, whose nor-
mative content reflects the wider transformation of society as a whole.3 However, this
position also contains an approach which understands the law as a repository of revo-
lutionary norms – or even as a revolutionary normative intelligence – within society.
To this degree, Brunkhorst’s work enables sociologists of law to examine legal phe-
nomena in a dual perspective. It makes it possible for legal sociologists to adopt two
typically irreconcilable accounts of law: it permits them at one and the same time
(in the sense of Marx or Luhmann) to approach law as a technical, neutrally evolution-
ary, or even socially immunizing aggregate of functions and (in the sense of Kant,
Rawls, Habermas, or Dworkin) to appreciate law as a privileged bearer of overarching
norms, able to enunciate founding principles of legitimation for society as a whole. In
general, therefore, Brunkhorst’s approach to law steers a course that is finely situated
between typically sociological and typically philosophical lines of legal analysis.
Close to the positivist tenor of classical legal sociology, exemplified by Comte, Marx,
Weber, Durkheim, and Luhmann, his work accounts for the law as a set of positive
facts, generated through inner societal systemic or adaptive pressures and functions.
Yet, closer to classical moral philosophy and its heritage, it insists on the irreducible
status of the law as a primary reservoir of human freedom and as a core register of
social critique. In clear distinction from the classical sociological canon, Brunkhorst
identifies the law as a medium of inner-worldly transcendence, in which human liber-
ties can assume generally applicable expression. In this respect, he is again close to
Habermas. He shares with Habermas a strong attitude of legal humanism (see Thorn-
hill, 2007: 338), which aims to consolidate the claim of the Enlightenment that it is
constitutive for the human being to act as the source of determinately human laws and
that the human being is intrinsically oriented towards building a universe of unmistak-
ably human freedom through its acts of legislation. However, whereas Habermas
(1992: 466) examines the relation between law’s normativity and law’s facticity by
locating the normative potential of public discourse as the source of valid law,
Brunkhorst observes law’s normative force as resulting directly from the fact that it
articulates deep-lying social processes. The normative force of law is more
integrally tied to the factual sociological production of law than is the case in Haber-
mas’s thought, and Brunkhorst, accordingly,...
To continue reading
Request your trial