SSoocciioollooggyy ooff LLaaww eexxppllaaiinneedd ttoo aa LLeeggaall PPhhiilloossoopphheerr

An attempted hermeneutic point of view

Course: “Sociology of Law and Normativity” (Prof. H. Rottleuthner) European Academy of Legal Theory (Brussels), Master’s course 2001-2002

Maria Isabel Köpcke Tinturé (ESADE, Barcelona) April 2002

(BUREAUCRATIC) NOTE:

The following essay purports to answer the five questions of the assignment; for reasons of coherence, and due to their substantive interconnections, I have decided to present them in the form of a structured text. Correspondence with the assignment questions is as follows:

Question 1: section (1)

Question 2: section (2.2), with preliminaries set under section (1)

Question 3: section (3.1), with preliminaries set, inter alia, under section (2.1)

Question 4: section (3.2.2), with preliminaries set, inter alia, under sections (2.1) and (3.2.1)

Question 5: section (3.2.1), with preliminaries set under section (2.1)

A request for permission to surpass the maximum number of pages (10) was made in writing on April 9th (email addressed to rsoz@zedat.fu-berlin.de), without having received any response so far. An attempt to reach Prof. Rottleuthner was made on April 17th through the direct contact of two of his collaborators with an own email address (as from the corresponding webpage; emails addressed to mahlmann@zedat.fu-berlin.de and kruegerk@zedat.fu-berlin.de); a short reply, promising “to take care of that”, was received on April 18th (signed by Dr. Mahlmann). At the moment of revising this text for its print (25th April, 10:15 pm) no further advice has been received. The authors thus applies the well-known doctrine of “positive silence” within Administrative law (in the Spanish case, enshrined in art. 33.4 of Law 30/1992).

- 2 -

IInnddeexx

1. SOCIOLOGY OF LAW AND “POINT(S) OF VIEW”.......................................................................4

1.1 EXPLANATION AND SOCIAL SCIENCES ...............................................................................................4 1.2 LAYERS OF EXPLANATION (THREE CHARACTERS: CITIZEN, SOCIOLOGIST, LEGAL THEORIST) ......5 1.3 RELATIONS BETWEEN LAYERS (THREE “EXPLANATIONS”, THREE “POINTS OF VIEW”)..................6

1.3.1 Citizen about himself..................................................................................................................6 1.3.2 Sociologist about citizen.............................................................................................................7

SECOND LAYER: THE CLUE MOMENT OF “TRANSLATION”.....................................................................7 1.4.1 Question of degree (ordinal v. classificatory scale)...................................................................7 1.4.2 Determining Factors (operationalisation).................................................................................8 1.4.3 Conclusion: a Gaussklammer?................................................................................................10

2. THEORY AND DEFINITION: A QUESTION OF POINT OF VIEW? .........................................10

2.1 THE POINT OF VIEW OF THEORY .....................................................................................................11 2.2 THE POINT OF VIEW OF DEFINITION................................................................................................12

2.2.1. Desirable characteristics: external and societal.....................................................................13 2.2.2. A closer “view” at non-etatism ...............................................................................................13 2.2.3. Conclusion: which “Verwaltungsstab”? ................................................................................14

3. SPECIFIC INSTANCES OF SOCIOLOGICAL THEORIES ABOUT LAW ................................15

3.1 USE-RULES........................................................................................................................................15 3.1.1. Characterisation and examples ..............................................................................................15 3.1.2. Effectivity of use-rules ............................................................................................................17 3.1.3. Efficacy of use-rules ...............................................................................................................17

3.2 CONFORMITY OF JUDGES .................................................................................................................19 3.2.1. Theoretical aspect....................................................................................................................19

3.2.1.A. Dependent variable as morality of duty............................................................................................21 3.2.1.B. Dependent variable as morality of aspiration ..................................................................................22

3.2.2. Practical aspect........................................................................................................................23 3.2.2.A. Indoctrination of judicial staff..........................................................................................................23 3.2.2.B. Judicial opposition against the political regime...............................................................................26

BIBLIOGRAPHICAL REFERENCES .....................................................................................................28 BIBLIOGRAPHICAL REFERENCES

- 3 -

1. SOCIOLOGY OF LAW AND “POINT(S) OF VIEW” “A society is confronted in the course of its life by a succession of problems

which each member has to solve for itself (...). [I]t is impossible to grasp the significance of any particular member’s behaviour (...) without taking some account of the similar or dissimilar behaviour of his fellows” (A. Toynbee)

1.1. Explanation and social sciences 1According to Max Weber, Sociology – as a prototypic “Disziplin vom Handeln” – must

be characterised as a science... ...welche soziales Handeln deutend verstehen und dadurch in seinem Ablauf und seinen Wirkungen ursächlich erklären will2.

“Action” (Handeln) would thus be the object of study of Sociology. Such “action” is a qualified one: besides having to be “social” (“auf has Verhalten anderer bezogen”3) it must be “human” as well as “purposive” (“mit einem subjektiv gemeinten Sinn verbunden”). This latter requisite is aimed at distinguishing between “intentional” (purposive) and “reactive” action4. The (methodological) relevance of such distinction is made clear by the qualification Weber uses to present “his” Sociology: it is an “understanding Sociology” (verstehende Soziologie). It is precisely because Sociology (as he conceives it) is aimed at “understanding” (verstehen) and thus “explaining” (erklären) human behaviour, that it can only regard “understandable” (verstehbar5) action as its object. “Understandable” is here equivalent to “purposive”, i.e. “meaningful” (sinnhaft).

To put it simply: the aim of Sociology is to “understand” (and explain); one can only understand what is “understandable”; only purposive human action is understandable, at least by the subject of action6. Hence, the conditions that must be fulfilled in order to allow Sociology to achieve its aim of understanding action are that such action:

(a) be purposive (sinnhaft); and 7(b) be (to some extent) “einfühlend nacherlebbar” by the observer-sociologist.

1 WEBER 1922:37. 2 Ibid.:19. 3 Ibid. (emphasis from the author); cf. also 41 et seq. 4 “Sinnhaftes” and “reaktives Handeln” (ibid.:19); however, one must note that within the category of “sinnhaftes Handeln” (“gemeinter Sinn”) Weber includes rational as well as irrational (emotionally determined) behaviour (ibid.:25). In this sense, “rational” action can be assimilated to the weberian categories of “zweckrational” and “wertrational”, whereas “irrational”, but “gemeint” action would fall within the realm of “affektuelle Bestimmungsgründe” (ibid.:44 et seq.). “Traditional” action, by contrast, can be equated with “reaktives Handeln” (though being at the borderline, ibid., 19 passim). 5 Ibid.:20. 6 Though exceptionally this might be the other way round: that the sociologist “understands” an action that its subject does not consciously (bewusst) grasp (cf. ibid.:26; I shall later refer to that). 7 “Einfühlend evident ist am Handeln das in seinem erlebten Gefühlszusammenhang voll Nacherlebte” (ibid., 20). In this sense it stands in contrast to a “rational” (logic, mathematic) understanding.

- 4 -

Both prerequisites are intertwined, though not identical (vide infra). In any case, they reveal a major feature of social (human) sciences: their need, not only for “externally” describing human behaviour, but for a certain “identification” with the observed subject’s state of mind in order to offer a “meaningful” description (or better: an explanation) of his behaviour. It is in this context that the crucial notion of “point of view” must be introduced.

The expression “point of view”, within the realm of social sciences, implies, by itself, the existence of (at least) two subjects (observer and observed)8, as well as a mutability of the observer’s position. For the purposes of this paper, the “observed” shall refer to the “committed” citizen under a certain legal order. The “observer” shall mean the sociologist or legal theorist interested in the explanation of such “committed” behaviour (both perspectives will later be clarified, I hope).

1.2. Layers of explanation (three characters: citizen, sociologist, legal theorist) The “committed” citizen will be taken to endorse what Hart famously characterised as

the “internal point of view”9 with respect to the legal order he is subject to. It is the point of view of the actor who accepts the normativity of a rule and thus is capable to (ideally) make the following statement: “A red light is a signal (for us) to stop”10. Such “endorsement of normativity” is intentionally broad as a concept. For it might be materialised in attitudes that range from an axiologic internalisation of a legal rule (or order) as “legitimate”11 to a mere strategic (zweckrational) compliance12. The crucial point is that, in all such cases, the “committed actor”, when acting in accordance with a (mandatory) rule, does so being aware that he “has an obligation” (eine Pflicht haben) and not merely feeling that he “is obliged” (aus Pflicht handeln)13. Such “awareness” comprises all three elements that, according to Hart, form the notion of an “obligation”: social pressure, importance for preservation of social life, and capability of conflicting with subject’s desires14.

Out of the three, the first element (“social pressure”) is the most relevant. For it connects with the requisite of “effectiveness”15 that Hart uses (as did the late Kelsen) as a precondition for the existence of a legal order. According to him, whilst “existence” of a legal rule requires its (formal) validity, “existence” of a legal order has as a necessary condition that there be not 8 Or: “Beobachter” and “Teilnehmer”, as Alexy puts it (ALEXY 1994:47 passim). 9 HART 1961. 10 Cf. WINTGENS 1999:19 (this is a refinement, which we fully accept, of Hart’s rather ambiguous description of the internal point of view; cf. also MACCORMICK 1978:275 et seq.). 11 In Weber terms, “Vorbildlichkeit oder Verbindlichkeit” (WEBER 1922:55), eventually by means of “internal” motives such as affective, value-rational, religious or even traditional ones (cf. ibid.:58 and 61). Weber, however, is not completely clear in the relation between “degrees of rationality” and “types of legitimate validity” of a legal order (cf. ROTTLEUTHNER 1987:23) – and, I would add, “ classification of guarranties of the legitimacy” of an order. 12 Cf. WEBER 1922:55. Cf. also the famous debate amongst hispanic legal philosophers on the possible implications of Hart’s “internal point of view” for the so-called “separation thesis” of legal positivism (e.g., GARZON VALDES 1998; BULYGIN 1998). 13 HART 1961:82. 14 Ibid., 86 et seq. 15 Hart confunsingly uses the expression “efficacy”, but refers to “the fact that a rule of law which requires a certain behaviour is obeyed” (ibid.:103). Being from principle adherents to a “purified” sociology of law, we shall leave the expression “efficacy” to design the degree of accomplishment of the legislator’s aims.

- 5 -

a “general disregard of the rules of the system” – this, in turn, must be interpreted as requiring a majoritary endorsement of an “internal point of view” (social pressure) with respect to the (majority of the) system’s rules16. So, the attitude of the “committed citizen” turns out to have a recursive, self-referential function: whilst implying awareness that there is a “social pressure” in favour of the (majority of the) rule(s), it contributes itself to the creation of such collective pressure. We shall soon comment on the implications of this insight.

17In the layer “above” the citizen, there is the sociologist (or anthropologist ) aiming, as Weber demands, at explaining (“deuten”) the citizen’s behaviour. His role is to serve as a bridge between the (potentially) “understandable” actions of the citizen and the need for (actual) “understanding” of such actions important (generally speaking) for the legal theorist. For the legal theorist, finally, is supposed to integrate the explanations offered by the sociologist into a larger critical framework of the legal system in question.

1.3. Relations between layers (three “explanations”, three “points of view”)

1.3.1. Citizen about himself

“Committed citizen”, according to Hart, constitute (“performatively”, as Prof. Ost would say) the system with which they comply (their reason for compliance is, reflexively, the effect of their compliance18). Some authors, especially comparatists, prefer to introduce the notion of “reflective practitioners”, following Weinberger and MacCormick’s characterisation of law as an “institutional fact”19 20 or, what is similar, Searle’s analogy with a cocktail party . In other words: the participants’ attitude towards law and, more importantly, the way they conceive such attitude, is what constitutes law itself21. The legal institutions (equiparable to the first two “legal spheres” of Ehrlich’s and Rottleuthner’s “three-dimensional-model”22) would thus not just (unilaterally) influence the participants, but (recursively) be shaped by them23.

This introduces a first level of “explanation” in our model, which is logically prior to the sociologist’s: it is the (constitutive) explanation by the citizen (or official) about his own activity. What he “says” to himself – or to others, if asked – can also be described in terms of the two aspects into which MacCormick splits up the “internal point of view”24: namely, a 16 Cf. also WEBER 1922:55 (“dass neben den anderen Motiven die Ordnung mindestens einem Teil del Handelnden auch als (...) geltensollend vorschwebt”). See, in addition, Alexy’s “Wirksamkeit” (“im grossen und ganzen effektiv”) as definitional element of a legal system (ALEXY 1992:201 et seq.). 17 Ethnographist and ethnologists are not relevant for these purposes, due to the limitation of their task to “merely descriptive” (as opposed to interpretive) matters (ROULAND 1988:122). 18 Weber’s theory about compliance of law, combined with definition of a “valid order” (geltende Ordnung) can be interpreted in the same way. 19 They point out that law is not a set of ‘natural facts’ that can be inspected directly. Rather it is an interpretative reality under which certain physical events take on a special significance (MACCORMICK and WEINBERGER 1986, ch. 3). 20 According to him, the gathering of individuals drinking wine in a common location is only a ‘cocktail party’ because participants have a common intention to treat is as such an event (SEARLE 1995:26). 21 Cf., in general, BELL 2001, ch. 1. Cf. also the wittgensteinian approach to what it means to follow a rule. 22 ROTTLEUTHNER 1987:3. 23 Please note the emphasis on the “interaction” between the institutional aspect and the “living law”; as we shall later see, this is by no means an a priori plea in favour of a non-etatist definition of the law. 24 MACCORMICK 1981.

- 6 -

cognitive and a volitive aspect. The first would imply that our citizen “knows” that he participates in the legal “cocktail party”; the second, that he actually “wants” to do so (both aspects being reflected in the words “meaningful” and “purposive”).

1.3.2. Sociologist about citizen What follows from the insight that only citizens’ “conscious” behaviour constitutes law

is that a sociologist – or anyone placed “externally” in the sense of not (necessarily) sharing the volitive aspect of the “internal point of view”25 – cannot adopt a “purely” external point of view. He must endorse a “hermeneutic point of view”26. Ergo, purely “observational” descriptions will not bring about an “understanding” of what is law: not only because “neutral” descriptions, as such, can hardly exist (Gadamer), but essentially since “explaining” (as we have defined it) requires sharing the cognitive aspect of the citizens’ attitude as well as knowing the volitive one.

For this reason, we shall from now on characterise the sociologist’s work as an explanation of an explanation – as such, excluding any “merely” factual account. Hence, “observed” will always refer to the “internal” aspect (not because the contrary is not feasible, but because it is intellectually sterile).

1.3.3. Legal Theorist about citizen (as presented by sociologist) The peculiarity of the third-order-explanation of the legal theorist is not relevant to

sociology of law. The legal theorist, starting from the results about the “concept” of law in a certain society stated by the sociologist, shall qualify such statements: e.g., he can question the accuracy of the sociologist’s interpretation (on a definitional / theoretical level), as well as (normatively) formulate proposals to change or to refine certain attitudes (this way the theorist’s results would be reintroduced in legal discourse27). Despite this important heuristic function of the theorist, we shall treat it together with the sociologist’s point of view in the following. First, because the observed object is ultimately the citizen in both cases: to our effects sociologist and theorist rather complement each other than work in two different “dimensions” (the difference between them is not one of “genus”, but one of “differentiae specificae”). Second, because we shall assume that both of them pertain to one and the same “culture”, which implies that the theorist has an “internal point of view” with respect to the sociologist’s assertions.

1.4. Second Layer: the crucial moment of “translation” It follows that the decisive aspect for a legal-sociological point of view on law is the

sociologist’s “bridge” between an internally sinnhaft attitude and an external “Deutung” thereof. What are the different degrees to which such hermeneutic “identification” can be achieved (1.4.1), and what are the likely determining factors (1.4.2)?

1.4.1. Question of degree (ordinal v. classificatory scale)

25 WINTGENS 1999:24. 26 MACCORMICK 1981:33. 27 “Dogmatic legal theory”, as well as other more “critical” approaches to positive law, have traditionally enriched the sources of law. To a certain extent, this function might recall Durkheim’s vision of sociology of law (ROTTLEUTHNER 1987:18 et seq.).

- 7 -

It is often implied, in the approaches of (mainly) legal theorists, that the variable “point of view” can only be measured on a classificatory/binary basis (with the variants “internal” and “external”). What has been said until now should show that this is not the case: and not just from a perspective of feasibility (it is possible to “understand” more or less), but also from a perspective of convenience (it is important to recognise the non-absolute character of most “identifications”28). We shall now focus on the different levels of “einfühlende Nacherlebbarkeit”.

Weber can be said to establish a three-step-scale within the “erklärendes Verstehen”. At the closest level to the citizen there would be the “causally valid explanation” (kausal gültige Deutung29): this implies an absolute identification with the citizen’s state of mind which is, as such, to be regarded as an unattainable ideal (“morality of aspiration”?), if only because the observed citizen and the sociologist are different persons. It is interesting to note the reasons that Weber mentions for such failure: it is not only the fact that contradictory “motivations” (höchst verschiedene Sinnzusammenhänge) may underlie externally “identical” acts, nor even that the relative weight of concurrent (conflicting) “motivations” (Antriebe) in often impossible to establish. Weber emphasises that sometimes subjects are themselves not conscious (nicht gemeint) of the reasons for their actions – and that, if so, it is the task of sociology to (try to) uncover them30.

More plausible than such ideal identification is the “Nacherlebbarkeit”. In this narrow sense, it presupposes “understanding of mythical processes, not communicable in words”: such understanding being only possible by someone sharing the same “ultimate values” (and involving a dimension of “fantasy”)31. In this sense it differs from the merely intellectual “Deutung”, which is basically defined by contrast to the “Nacherlebbarkeit”. As Weber puts it:

Dagegen ist die Fähigkeit, aus Eigenem ein gleichartiges Handeln zu produzieren [“Nacherlebbarkeit”], nicht Vorraussetzung der Verstehbarkeit [“Deutung”]: ‘Man braucht nicht Cäsar zu sein, un Cäsar zu verstehen’ (ibid.).

This last insight allows for the following interpretation: whilst “Deutung” is a necessary condition for any “understanding” (hermeneutic point of view of the sociologist), “Nacherlebbarkeit” and “causal validity” can be regarded as ideal goals, whose (gradual) presence or absence will function as a qualification of the sociological explanation (as a sort of “morality of aspiration”). In scale-measurement terminology, one could say that all three degrees qualify as “internal” according to a binary scale; however, to reveal their relative intensity an ordinal, rank scale must be introduced.

1.4.2. Determining Factors (operationalisation)

28 As it is to acknowledge the non-neutral character of most descriptions. 29 WEBER 1922:25. 30 “Es verhüllen vorgeschobene ‘Motive’ und ‘Verdrängungen’ (...) oft genug dem Handelnden selbst den wirklichen Zusammenhang der Ausrichtung seines Handelns (...). In diesem Fall steht die Soziologie vor der Aufgabe, diesen Zusammenhang zu ermitteln und deutend festzustellen, obwohl er nicht, oder meist: nicht voll, als in concreto ‘gemeint’ ins Bewusstsein gehoben wurde” (ibid.: 26). 31 Ibid.: 20-21.

- 8 -

How to reach (a) from an external description to a “Deutung”, and (b) from there to a “Nacherlebbarkeit”? Or, what is the same: how, in concreto, to operationalise the variable (internal) “point of view” (of the sociologist)? I can only hope to present some suggestions.

(a) Since the “jump” from observation to (intellectual) interpretation requires knowledge of the citizen’s attitudes (i.e. of their explanations of their own activities), and since such “attitudes” are not revealed in the “formal” sources of the law (texts: laws, judgements, etc.)32, communication with the observed becomes necessary. The involved difficulties may be better understood considering the analysis of an alien, eventually illiterate, culture (or simply, a culture radically different than that of the sociologist). “Communication” may mean either “empirical” (direct) or “symbolic” (indirect) (I use this terms in the absence of better ones): under “empirical communication” I understand actual interaction, orally, in writing or by any other means, between observer and observed; under “symbolic communication” I understand unilateral gathering of information by the sociologist, but on the basis of selected (and previous) “exteriorisations” of the observed. Interviews and questionnaires would fall within the first category, whilst observation and content analysis of non specifically legal manifestations (i.e. newspapers, media, cultural rites, plastic arts, etc.) would be included in the second.

Now, at first sight there might seem to be a hierarchy between the two modes of communication, both as regards to their “reliability” and to their “feasibility” (“empirical communication” might seem more reliable though less feasible to attain). This is only partly true. For, on the one hand, it is true that language barriers (including the incommensurability of many foreign terms) can constitute an important obstacle and that, once overcome (or where it does not exist), a shared language will lead to quite accurate understanding. On the other hand, however, we must recall Weber’s comment on the sometimes unconscious reasons people have for their actions: in cases of “Verdrängungen” linguistic communication could certainly offer misleading results. In addition, the sociologist’s aim in the communication process might determine its quality: whether he uses strategic or “genuine” communication (“verständigungsorientiert”, “eingentliches kommunikatives Handeln”). Furthermore (and consequently), “empirical communication” must not always be more difficult than “symbolic” one: especially in cultures where meaning is mainly expressed through common assumptions, attitudes or behaviours, rather than made explicit through words.

Thus, factors such as knowledge of the citizen’s language or the degree of “literacy” of the target culture may determine, in each case, the proportion of “empirical” and “symbolic” communication that can be used. This, in turn, will imply a more or less accurate result depending on the target environment and the sociologist’s cultural background33. In all cases referred to under this paragraph (a), the primary aim will be an (intellectual) understanding of the “cognitive” aspect of the citizen’s point of view, the “volitive” being only weakly sketchable.

(b) By introducing the dimension of “myth” we are reminded of an extended anthropological current of thought, spiritually “guided” by Raimon Panikkar34. According to 32 Against, cf. Durkheim. 33 Symbolic communication may prove more fruitful when studying a Far Eastern culture, even for a (Western) sociologist with full command of the relevant language. 34 PANIKKAR 1995; cf. also VACHON 1990.

- 9 -

such doctrine, dialogue between cultures (and what is “Nacherlebbarkeit” if not an attempt to dialogue?) will only be possible once each one unveils the other’s “ultimate values”. Such mutual uncover of myths aims at an actual, conscious grasping of the counterpart’s unspoken presuppositions (and, reflexively, of the own). This might be a way to make an “einfühlende Nacherlebbarkeit” possible even in cases where, due to cultural circumstances, sociologist and citizen do not a priori share the same “vision of the world”.

A movement as the described one is directed towards understanding of the “volitive” aspect of the internal point of view; i.e., to the sociologist’s own experiencing of the “normativity” (vide supra)35. As already noted, such identification will almost never be complete (in the sense of “causal explanation”), its intensity depending on the degree to which the “diatopical dialogue” between sociologists and citizen is achieved36.

1.4.3. Conclusion: a Gaussklammer? Which “point of view” offers, then, a most accurate (sociological) approximation to

law? Contrary to what might be intuitionally supposed, and has been argued under (1), it is the “external-hermeneutic” point of view, which may maximise the understanding of what counts as law in a certain community. It has been held that the citizen’s own (internal) point of view is limited in a double sense: first, because of the constitutive function of the citizen’s (first-order) “explanations”; second, because of eventual “Verdrängungen” of motives. Conversely, we have seen that a “purely” external perspective, based on “merely” observational data, is neither capable of providing a true picture of law.

We may thus conclude by enlarging the above suggested image of an ordinal scale (for the treatment of the sociologist’s viewpoint) into a Gaussklammer37, its horizontal axe being the level of “externality” and its vertical axe showing the accuracy of the explanation offered. The latter would reach its summit at the middle way between externality and internality, i.e., at the “hermeneutic point of view” as it has been characterised in the preceding paragraphs.

2. THEORY AND DEFINITION: A QUESTION OF POINT OF VIEW? “On ne peut définir le droit, mais seulement le penser” (N. Rouland)

We shall now briefly survey the (central) notions of theory and definition in Sociology of Law, on the basis of the theses proposed under (1). This shall, in turn, represent a systematic framing of the more “specific” questions dealt with under (3).

Legal Theory (in the broad sense) construes either theories about law or definitions or ideals of law, though such distinctions are seldom clearly acknowledged38. To explore the implications of the “points of view” on this, a necessary restriction must be made: we must consider only those subject-matters that can be both the object of legal theory and of sociology. For, it is the sociological sense of “point of view” that interests us. Accordingly, it 35 And thus not a merely strategic orientation towards the (common) rules. 36 EBERHARD 2000. 37 I am not sure whether such graphic already pertains to the category of “internal” scales (allowing for additions and substractions). 38 ROTTLEUTHNER 1992:44 et seq. For our purposes, we will take for granted (i) the separate existence of these categories and (ii) their meanings.

- 10 -

turns out that we can find theories as well as definitions both (frequently on a complementary basis) in philosophical and sociological domains: in the case of theories, due to their predictive-empirical or procedural-explanatory nature (vide infra); in the case of definitions, due to their conceptual (generalising) claim. Legal ideals, however, are independent of any consideration of “point of view” for the same reason why normative theory is not a “Disziplin des Handelns”: the latter, as opposed to the former, aims at “explaining” existing (human) realities (the “is”, as opposed to the “ought to be”). We shall thus exclude any further reference to ideals.

Theories and definitions are strongly dependant upon the question of the “point of view”, as we will try to show in the following analysis.

2.1. The point of view of Theory Within the legal-sociological realm, a theory can either mean an empirically based and

hypothetical systematisation of variables (be it explanatory or descriptive), or alternatively a conceptually based explanation of some (real) process. In the first case we shall talk about “predictive-empirical” theories. Their main feature, as opposed to the second sort of theories (the procedural-explanatory ones), is that they are capable of being “falsified” (Popper), i.e., empirically tested.

39For the sake of simplicity, we will restrict our comment to the first type of theories . Probably the most patent example is a theory about (the factors influencing) norm-compliance (by citizen): it is an instance of explanatory hypotheses, thus combining (through positive/negative correlations) a set of independent variables with a dependant variable (which, in turn, can function as independent variable at a further level of the correlation40). What such theory ideally would need to establish can be subdivided, consequently, into two parts, pursuant to the relational status of the variable at stake.

(a) As regards the dependent variable: to assert the degree of effectiveness or norm-compliance, knowledge is needed about (i) what is complied with (the law) and about (ii) what it means to comply. The first aspect presupposes a definition of law41; the second aspect, whilst depending as well on a determination of what counts as law (what is a “source” or valid law in a community), requires additional information on the contents of the provision: it must be understood what the norm prescribes (or prohibits, or permits) so as to be able to “recognise” such behaviour when performed (or not) by the observed citizen. We shall refer below (2.2) to the question of definition. Concerning the contents, suffice it to recall the need

39 This is furthermore coherent with section (3) of this paper. Amongst the theories of the second type, some of the most influential contemporary accounts of law can be found, such as Luhmann and Teubner’s “autopoietic” approach to law as a system (cf. also ROTTLEUTHNER 1989a for a critique of the conceptual games of “his autopoietic friends”). 40 This is especially evident if one compares, within the field of efficacy research, a theory about norm-compliance (about effectiveness of norms) with a theory about the degree of accomplishment of the norm-giver’s aims (about efficacy of norms): the degree of efficacy (dependent variable in the first theory) becomes, from the point of view of efficacy, just one of the factors that might influence the fulfilment of the norm’s purpose (and thus an independent variable). 41 This can be presented as one of the (many possible) interconnections between “theory” and “definition”, the concrete outline of which is beyond the scope of this paper.

- 11 -

for a “hermeneutic point of view” in order to understand the citizen’s reasons for (legal) action42.

(b) As regards the independent variables: to assert that, e.g., the degree of legal awareness, the severity of sanctions or the probabilities of being caught have a positive or negative influence on the dependant variable, the following three causally linked factors need to be ascertained. First, the existence of a certain “fact”, such as the law establishing a certain sanction, the degree of its actual enforcement by the legal staff (cf., mutatis mutandis, 3.3), the degree of positive (non-legal?) sanctions in case of non-compliance or the level of the public’s deviation. Second, it must be determined that the observed citizen is aware of such “fact”. Third, and finally, the causal relation (“correlation”) between the two previous factors and the dependant variable must be proven. How is this affected by the question of point of view?

The facts whose existence must be determined are either “legal” or “non-legal” (sociological stricto sensu). For establishing the law’s contents again a definition of law is implied, as well as secondary content-information, for which an “hermeneutic point of view” is required (vide supra). For establishing “sociological” facts the same point of view must be used: e.g., to determine the degree of enforcement one must know, besides what the relevant law is and what exactly it demands from the legal staff, who is (considered as) the “legal staff” in that community43. Idem for the level of the public’s deviance, etc. Only the sociologist’s “hermeneutic point of view” can shed light on such matters. The same is true for the psychological awareness of the citizen of the mentioned facts44, as well as for the correlation (“Sinnzusammenhang”).

2.2. The point of view of Definition We have thus seen that, for the building of a (sociological) theory about law, an

“hermeneutic point of view” is required, besides a definition of law. This section is devoted to the latter aspect. A definition, on the sociological domain, functions (so to speak) by induction: it derives from factual, concrete data (more or less) abstract generalisations45. Some characteristics of reality are sorted out amongst others and are attached a “representational” (definitory) importance. Whilst it is patent that in such “selection” theoretical assumptions play a role46, we shall only focus on the outcomes of the “selections”. And such outcomes

42 For it is (at least partly) the contents of a provision, as explained by the citizens to themselves, that determines their (non-)compliance (this is based on a rejection of the “plain-meaning” theory of linguistic propositions; cf. Gadamer). 43 This insight is independent of the (definitional) question of whether there can exist law without “Legal staff” (vide infra). It simply holds, in accordance with previous paragraphs, that the “roles” of the legal staff are “collectively” created through a sum of converging attitudes (cf. ESCUDERO 2000, who argues that Hart’s “rule of recognition” is primarily aimed at “recognising” the other two secondary rules – rules of change and rules of adjudication – thus restricting its scope to the identification of the “legal staff”). 44 Independent variables can of course be also purely psychological attitudes, such as the “congruity of the actor’s motives with the legislator’s aims”. In that case, first step (“facts”) would be fused with the second step (“awareness”). 45 “Die Soziologie bildet (...) Typen-Begriffe und sucht generelle Regeln des Geschehens (...). Die Begriffsbildung der Soziologie entnimmt ihr Material, als Paradigmata, (...) den (...) relevanten Realitäten des Handelns” (WEBER 1922:37-38). In this sense, definition can be said to proceed the opposite way than theory does. 46 VAN HOECKE 2001:13.

- 12 -

must, out of necessity, be the outline of law’s “differentia specifica” with respect to the “genus proximum” to which it is held to pertain.

2.2.1. Desirable characteristics: external and societal It is often stated that an ideal sociological concept of law should be both external and

societal (pluralistic, non-etatist). Whilst this is indisputably true, the reasons for upholding either ideal must be distinguished from each other. Simply put, “external” refers to the “how” and “societal” refers to the “what”: an observational definition is one that can be achieved without endorsing a hermeneutic point of view; a pluralistic definition is one that does not include any reference to “etatist” elements (but only to the “living law”47). In the first case, simplicity is the justification; in the second case, it is the universalisability of the definition (i.e., its suitability to encompass also non-Western “legal phenomena”48).

If the arguments of the above sections are accepted, we must reject the possibility of externally defining law. This does not prevent us, however, to reflect on the eventual omission of the etatist component. The question must thus be put in these terms: can a definition built from an hermeneutic point of view reveal a non-etatist concept of law?

2.2.2. A closer “view” at non-etatism

A preliminary clarification on what is meant by “State” is necessary. Different disciplines highlight different features of this quasi-normative49 concept. Whilst (classic) Public International Law emphasises formal but general elements (territory, population, independence), Economy might be concerned with more substantive notions (etatist planification instead of free market) and Litigation Law will focus on concrete formal-procedural manifestations (court system v. alternative conflict resolution). Instead of considering a multiplicity of overlapping concepts, I suggest to distinguish between strict notions and a broad notion of “State”. The referred disciplinary concepts, and others analogous to them, would form the set of the strict notions. They are irrelevant from a sociological point of view, which rather seeks for common denominators (broad notions)50. I do not find it unreasonable to choose as such common denominator Weber’s idea of “Erzwingungsstab” (or “Verwaltungsstab”51), developed by Rottleuthner so as to encompass any generally acknowledged52 and regular intervention of an independent third party as a social reaction to a transgression of a norm53.

Now, this point is delicate. How are we to ascertain if a hermeneutic analysis of non-western societies will (or will not) always uncover such third-party-mechanism? At first sight this might seem an unresolvable question, and it probably is from a theoretical point of view 47 EHRLICH 1913. 48 N. Rouland, a legal anthropologist, expressly suggests to use the term “legal phenomena” (and also: processus de juridisation) instead of the term “law”, which he finds to be ethnocentric (ROULAND 1988:142). 49 DUBOUCHET 1990:144-5. Though apparently descriptive, there is no undisputable “underlying reality” which could be univocally described. 50 Weber himself acknowledges that sociological concepts are relatively content-empty (relativ inhaltsleer), this however being compensated by an increased precision (gesteigerte Eindeutingkeit) (cf. WEBER 1922:38). 51 Ibid.:59 and 87, respectively. 52 Again, this does not imply general “moral acceptance” but practical, de facto “recognition”. 53 ROTTLEUTHNER 1987:35.

- 13 -

(like our’s). Thorough ethnologic reports on alien cultures are not very abundant (and, in any case, they are always susceptible to ethnocentric suspicion). In this situation, it may be useful to question the question: what does “adequacy” of a definition mean (since it is under the light of their adequacy that definitions are evaluated)? In abstract, a definition is “adequate” if it is sufficiently broad as to encompass phenomena of equal nature, and sufficiently strict as to retain a certain “meaning” of the defined phenomena (that allows it to be distinguished from other phenomena pertaining to the same “genus”). It is patent, however, that the notions of “equal nature” and “certain meaning” are essentially subjective – which transforms “adequacy” of a definition, de facto, into “congruence with the addressees’ intuitions”54.

We might thus ask: assuming that the third-party-mechanism is not to be found in certain communities (a question we cannot answer), is it more congruent with our “intuitions” to redefine law (to broaden the concept even more), or alternatively to conclude that not all societies have “law”? Well, the answer depends on whether we intuitively prefer a “universal” concept of law (at the price of “relativizing” some of its “Western” characteristics we often find essential), or whether we are prepared to use a “limited” (geographically and temporally “relative”) concept of law.

55This latter possibility might rudely conflict with modern “Legalism” . However, I do not intuitively see any other “meaningful common denominator” which is more general than Weber’s “Verwaltungsstab”: law as pertaining to the genus of “normative orders”, the third-party-mechanism being its differentia specifica with respect to conventions, e.g. In support of this (maybe ethnocentric) claim I want to recall that alternative definitions of law have (so far) presented either more narrow concepts56 or only apparently broader notions (which, in fact, amounted to the “Erzwingungsstab”57).

2.2.3. Conclusion: which “Verwaltungsstab”? A non-etatist (in the broad sense of “State”) definition of law is “possible”, provided

“adequacy” is understood in a specific way, which I do not endorse (I do not find it acceptable to prescind of the idea of “Verwaltungsstab”). My final remarks shall insist on the “desirability” of an etatist definition, by questioning the main argument used against it: the limited applicability of such concept.

On the one hand, current (Western) legal theory increasingly emphasises the so-called “erosion” of the State, which gives rise to an “reflexive State” (Teubner), “Etat animateur” or “Etat modeste” (Morand) more concerned with arbitrating the play between independent

54 The addressees being the general public or, in other cases, the scientific community (including ourselves, in the present case). 55 One of the intellectual basis of the edifice of Modernity and, a fortiori, of the normativity of (modern) law (cf. WINTGENS 1999). 56 E.g., the realist movements identifying law with certain (quite Western) societal facts (judgements or predictions of them). 57 Cf. Luhmann’s “congruent generalisation of behavioural expectations” (who generalises?) or his (later) social normatively closed sub-system specifically aimed at using conflicting perspectives to form and reproduce such “behavioural expectations” (again: who uses them?) (cf. ROTTLEUTHNER 1989a; LUHMANN 1988). Ehrlich’s “overtones” present a similar defect (EHRLICH 1913).

- 14 -

58forces than with “imposing” itself . The resulting “logique du réseau” requires a redefinition of the notion of “Verwaltungsstab”, by assimilating it to the concepts of “gouvernance” and “régulation”59. Through such redefinition, one could expect that differences between etatist and non-etatist law might as well be “eroded”.

On the other hand, it might be questioned whether in the expression “etatist law” it is only the word “etatist” that is ethnocentric. In other words: by looking for the citizen’s “attitudes towards law” – i.e., by asking “what do they consider to be law” (Searle, Arnaud) – the fact is disregarded that in some societies the idea of “law” does not have a meaning. This would then lead to a vicious circle (for it is precisely the definition of law that is at stake). Following N. Rouland, we might instead ask “which aspects of social life does the group consider essential to its coherence and its reproduction” and then look for the mechanisms by which they are “protected”60. Such functional approach to “law” might in turn reveal similarities (of substance) between etatist and non-etatist social orders.

3. SPECIFIC INSTANCES OF SOCIOLOGICAL THEORIES ABOUT LAW “In theory, there is no difference between theory and praxis. But in praxis

there is” (A. Abril)

What follows presupposes the above remarks on the role of “point of view” and on the epistemological limitations of a sociological theory about law. We shall now consider two special cases, that suppose – with respect to the referred theory of (citizen’s) norm-compliance – variations as to the type of norm (and hence what it means to comply), the subject of compliance and the dependent variable itself.

3.1. Use-rules 61It is not only within the recent framework of the “overregulation” discourse that

“alternatives” to the classic command-conception (duty/prohibition) of law have been suggested. Nineteenth century liberal codes provide an example that alternatives to “imperatives” can be found in law as well – not only in “media” such as money, market or power (which are frequently themselves channelled by law62). Alleged illnesses such as “Regelungsdichte” and “Regelungstiefe” often denote a too strict imperative character of legal provisions; law “commands” in all spheres and up to the smallest details; law as such does not provide for alternatives. “Use-rules” are to be understood in this context of “alternative legal forms of regulation”.

3.1.1. Characterisation and examples

58 Cf. OST 1998:17. Against the pertinence of such non-empirically based generalisations, ROTTLEUTHNER 1987:51. 59 Ibid. 60 ROULAND 1988:138, where also A. Weill and F. Terré are quoted: “... une règle n’est pas juridiaue parce qu’elle est sanctionée d’une certaine manière par le groupe; elle est sanctionée de cette manière par le groupe parce qu’elle est juridique”. 61 A consequence of the “Souveränitäts-Vorurteil”: a heir of the positivistic imperative theory of law (ROTTLEUTHNER 1987:50 et seq.). 62 Ibid.:139.

- 15 -

We shall distinguish three elements within a use-rule, for the sake of our analysis:

(i) a (strong) “permission to do” (suggested behaviour),

(ii) a “permission not to do” combined with a (weak) “permission to do” (alternative behaviour), and

(iii) a “duty/prohibition” (compulsory framework).

By “strong permission” I mean behaviour explicitly described as possible; by “weak permission” I refer to the absence of regulation63. The “compulsory framework” operates as a limitation to the range of the “alternative behaviour”: in other words, the addressees may follow the “suggested behaviour” (i) or they may not (ii), but in the latter case, certain minimum requirements (iii) must be fulfilled (which are sometimes, but not always, already included in the suggested behaviour) in order to create the relevant “institutional fact” (MacCormick).

The following three examples taken from current Catalan private law (persons) will serve as illustration of the above statements, as well as for their possible nuances and shadow zones.

The first one (“succession”), probably the most patent, can be found in most legal systems sharing our legal culture (though with some particularities in Catalan law). It is the case of the “default” rules on succession mortis causa. Every legal person is granted the possibility to “alter” the (usually very detailed) legal succession regime by issuing a formal statement (testament, in general) that must comply with a (great) number of formalities and, in addition, substantive requirements (in the Catalan case, ¼ of the estate belongs imperatively to the first-line-descendants, and ¼ to the widow64). (i) The suggested behaviour is thus to leave unaltered the ex lege division; (ii) however, it may be changed (there is a wide range of alternatives), (iii) provided formalities and the rights of the “legitimaris” are respected65.

The distinction between the weak and the strong permission is, however, blurred in the second example (“survival acquisitions”). The default Catalan matrimonial regime (separation of goods) does not provide for any (significant) “compensation-right” in case of finalisation of marriage. Since this often leads to (unwanted) situations of injustice, especially in the case of death of the spouse at whose name the goods were inscribed, Catalan Family Code (arts. 44-46) establishes a special regime called “compres amb pacte de supervivència” (“acquisitions with survival pact”): at the moment of acquiring a valuable good, it can be agreed that, in case of decease of the spouse who bought it, the other spouse shall “inherit” the totality of the good (in the way the law establishes). The alternative (ii) to the proposed separation regime (i) is thus subject to the requirement of agreement and (substantively) to

63 This is not completely analogous to VON WRIGHT 1963:85-90. 64 Law 40/1991, of 30th December (arts. 24 et seq.). 65 General rules on matrimonial regimes are analogous to this first example: in Catalunya the default is “separation of goods”; alteration can only be made through “capítols matrimonials” and, in any case, it may not contradict some basic rules on equality of (economic) burdens.

- 16 -

respect of diverse ex lege succession rights (iii). Such alternative, however, is not a “weak” prohibition anymore, nor is that the default regime (i): both are regulated in detail66.

A similar ambiguity is revealed in the third example (“surname”), taken from Civil Register regulation, as modified in 1999. As a consequence of the constitutional principle of non discrimination on the basis of sex (article 14 of the Spanish Constitution), a child’s surnames shall no longer automatically correspond, in this order, to the father’s and to the mother’s first surname, but can now be set the other way round (first the maternal one) upon agreement of both progenitors at the moment of the inscription of the birth67. (i) The “suggested behaviour” is thus to start with the father’s name; (ii) however, it is permitted not to do so (the remaining alternative being only one, be it explicitly said or not), (iii) provided there is agreement amongst both progenitors and it is done at the moment of inscription, amongst other requisites.

3.1.2. Effectivity of use-rules What does it mean to “comply” (by the citizen) with each of the three elements of a use-

rule? Provided the obstacles outlined in the above sections are overcome, compliance with the “suggested behaviour” (i) should not present any further difficulty, be it to stick to the legal succession rules, to avoid any post mortem alteration of the separation of goods regime or to call the child by its father’s name. The same is true for the conditions attached to the “alternative behaviour(s)” (iii).

Compliance with the element (ii), involving both a permission not to do and a (weak?) permission to do, can be asserted as follows. For the first part (permission not to do), it suffices to apply in a negative way the criteria used for determining (i)68. For the second part (alternatives), a positive determination will be possible in case of one single alternative (be it because one alternative is prescribed, as in the “survival acquisitions” case, or because only one alternative is left, as in the “surname” case). In the rest of the cases, non-compliance with (i) will be identical with compliance with (ii) (two sides of the same coin).

3.1.3. Efficacy of use-rules A much more striking question concerns what is to be understood as being the “goal of

the legislator” in the case of use-rules: it is the presupposition of any efficacy-research (and –theory69). It is difficult to state a goal at the abstract level: after all, the legislator offers an alternative (I shall leave aside the element (iii), whose “goal” must be examined in the light of the criteria used in instances of “command-rules”70). Obviously the foundation of any

66 This distinguishes the second example from the classic one of matrimonial regimes: in such cases – at least in Catalunya – there is broad discretion to alter the legal regime, without any need to adhere to an alternative legal regime (as in Catalunya is, inter alia, the “goods community” regime). 67 Law 40/1999, of 5th November. 68 Strictly speaking, this “first part” still pertains to the element (i) (“permission”). 69 The formulation of a theory of use-rule-efficacy is too broad an objective for our present purposes (due to the abundance of para-legal independent variables in efficacy theories, which vary from example to example). 70 This element is furthermore connected with what could be called a “general purpose” of the law, in the sense of a “purposive program”, which states “a purpose that can be achieved by various means selected on the basis of reasonable discretion” (cf. ROTTLEUTHNER 1989:793). What we are interested in are the specific aims of (each part of) the use-rule.

- 17 -

alternative is ultimately a recognition of individual (bourgoise) freedom (self-determination); this is, however, not (always) enough, for otherwise elements (i) and (ii) could be fused into one weak permission (“do what you want in this field”). A use-rule is something more. It raises a couple of questions: which alternative does the legislator “prefer”? Does he “prefer” what he “encourages”, i.e., element (i)? Or does he put obstacles to option (ii) for other reasons, aware that they will not suffice to discourage its use (as in the case of some taxes)? Does he eventually not care at all what is chosen, and just wants to show that he offers this alternative? In other words, which element has pre-eminence in the legislator’s mind: the “suggested”, the “alternative” or the “option as such”? I believe each of our examples provides an instance of a different “weighting”71.

In the “succession” case, I believe, appearance and reality converge (at least, to a great extent). Legally established divisions of the estate tend to respond to age-old criteria of (distributive) justice, that are affected by historically and geographically sensitive opinio iuris regarding the relative “importance” of the interests at stake (e.g. marked differentiation of gender roles may increase or decrease the percentage corresponding to the widow; political tendencies may shorten the chain of beneficiaries to push forward the place of the State, etc.). Assuming this social-justice function of succession, it can be said that “alternative” regimes are discouraged (though weakly permitted for the sake of individualism72).

In the case of the “survival acquisitions” it is likely that the legislator’s goal is that the alternative “agreement” is used. Legislative history shows the permanent discomfort of the Catalan (and Spanish) legislator with the maintenance in Catalunya of the (strict) separation regime, whilst in the rest of Spain it is the “community of goods” regime that operates by default. This creates a discrimination amongst Spanish citizen that has sometimes been qualified as unconstitutional (art. 143 of the Spanish Constitution, on the equality of “autonomous communities”). The Catalan legislator, furthermore, not only wants to “formally” offer the possibility; he is interested in an actual use of the said agreements as a mitigation of the harsh separation of goods. The ultimate reason is probably political: Spanish civil law has been largely homogenised after the 1978 Constitution. However, existing regional civil laws are, under certain (limited) circumstances, allowed to be kept (art. 149.1.8 of the Spanish Constitution). Specially in culturally rich communities as Catalunya, a great “national” relevance is attached to autochthonous legal institutions. The separation regime is one of the most prominent ones. Thus, in order to avoid that Catalan citizen “switch over” to the Spanish default regime, the Catalan legislator provides for a specific “Catalan” devise that (at least partially) fulfils the goal of the “community of goods” regime. The “obstacles” involved in such “agreements” (element (iii)) must be understood as aiming to guaranty legal certainty in an economically important, and statistically relevant, matter that otherwise could be frequently used for fraudulent purposes.

71 The means to find this out, again, depend on the accuracy the “legislator’s will” can be “read” by the (hermeneutic) sociologist – without incurring, of course, in the “democratic prejudice” (ROTTLEUTHNER 1987:50). 72 The goal of social justice thus “prevails” over the (concurrent) goal of “self-determination”. It is a case of relative weight (rank), rather than of binary classification (such as Dworkin’s approach to legal principles as opposed to rules).

- 18 -

Finally, I understand the “surname”-option as an end in itself, there not being any preference for the legislator in the actual choice made by parents. The Spanish legislator wants to stress its support of the non-discrimination principle, at an age in which supranational human rights law is increasingly permeating public opinion. Efficacy could be said to be largely identical, in such case, with the “effects” of the issuing of the norm (as happens in cases of “symbolic politics”).

3.2. Conformity of judges Provided one accepts (as we do) the existence of a “Rechtsstab” as characteristic of a

legal system, it becomes clear that the legal role of the legal staff radically differs from the citizen’s or addressee’s role. Kelsen as well as Hart distinguished as core elements of a legal system two different kinds of rules (not reducible to one another): those addressed to the “officials” and those addressed to the “citizens”73. Compliance of the legal staff – in their role of legal staff – thus presents itself as the possible object of a (different) sociological theory of norm-compliance: a theory structurally similar to the one referred above (in the sense that both are placed at the level of effectivity74), but different as to the subjects of compliance and the rules complied with.

In the first subsection we shall suggest a framework for a possible theoretical approach to the norm-compliance of judges – probably the most “paradigmatic” representatives of the “Rechtsstab”. In a second subsection we shall examine some actual instances of judicial activism or manipulation in the Spanish legal culture, in the light of the suggested theoretical guidelines.

3.2.1. Theoretical aspect The basic structure of a theory of (citizens) norm-compliance, as well as the

epistemological obstacles in the assessment of each of its variables, have been commented under (2.1) and shall apply mutatis mutandis to the present analysis. The essential innovative feature of a theory of judges’ conformity is the particular “content” of the dependant variable – and a fortiori of the independent ones. We must logically start with the dependent variable.

(Judicial) application of rules of conduct (primary, in the hartian sense) is not the same as compliance with them by citizen. The difference is not (only) one of “voluntariness”. Interestingly enough, “hard cases” are referred to, in legal philosophical discourse, always in the context of adjudication – and never, or hardly ever, in the context of (voluntary) norm-compliance. Is the meaning of legal provisions more clear to citizen than to judges? Definitely not, for this would deny the usefulness of any legal training (such as this Master’s course). The answer is found in the specific legal role of the “legal staff” (a role which was classically not acknowledged75 76): the function of issuing authoritative interpretations of the law . The

73 This is so even if – as is known – both authors used the dichotomy between primary and secondary rules in an opposite way (cf. KELSEN 1960; HART 1961). Non reducibility (at a conceptual level) to one another does not, on the other hand, rule out the practical coincidence in one provision (especially in Kelsen). 74 Only that one is about “voluntary” compliance (of the addressees of primary rules in the hartian sense), and the other about “implementation” (hence “imposition” upon the addressees). 75 Cf. Montesquieu’s judge as “la bouche de la loi”.

- 19 -

“responsibility” of the judge’s interpretation is greater, if only for numeric (more addressees affected) or symbolic (expression of the State’s will) reasons.

A judge thus acts as a mediator when applying a rule of conduct: by contrast to the complying citizen, he is not affected himself by the rule he applies (I leave aside for the moment the secondary rule of which he, of course, is the addressee). This implies that the reasons he may have for applying or non-applying it (or for applying it in a certain sense) actually differ from the citizen’s ones. The latter – as we suggested – uses mainly utilitarian (strategic) considerations when deciding whether or not to comply: this is a coherent attitude of a rational being who is (in principle) the last addressee of the legal chain and whose actions thus have no (legal) effect on others (again, in principle). A judge, by contrast, is affected by other tensions. We shall divide them into “self-regarding” and “other-regarding” (though separation is not clear-cut, vide infra): the first ones referring to the (classical) judge’s obligation to stick to the law (symbolised by the secondary rules); the second ones implying consideration of the primary rule’s contents and thus of the foreseeable consequences of its application (of its efficacy, in a certain sense)77. In the first case, the judge acts as an “addressee”; in the second case, he acts as a “mediator” (between norm-sender and addressee; see fig. 1).

Primary rule

Citizen

Judge

Secondary rule

Secondary rule

Primary rule

Citizen

Judge

Self-regarding (utilitarian) motives

Other-regarding motives

Self-regarding (utilitarian) motives

souvereignty

lega

lity

Fig. 1: The “official” model... ...and the “empirical” model

This, in turn, can be systematised from the judge’s point of view (see fig. 2). The dependent variable being “application of the (primary) rule”, it can have two different “variants”: assuming, with Hart (and many others78), that each norm has a core of meaning and a zone of penumbra (“open texture”), the judge’s behaviour may range from giving the norm a meaning not compatible with the “core” (or simply not applying it), to choosing one of the possible interpretations within the “open texture”. In both cases, as I shall argue, “self-regarding” and “other-regarding” independent variables play a role.

76 By “authoritative interpretations” I do not necessarily mean “erga omnes”: there is obviously a difference between the binding status of a Supreme court’s and a peace judge’s decision. However, the more the “old” paradigm of the strict division of powers – and the corresponding “plain meaning” approach to texts – has been eroded (also in the eyes of theoreticians, though always with some delay with respect to reality), the stronger the interpretative function of the judge has been remarked: even a peace judge is invested with the auctoritas (and etatist potestas) to set interpretative conflicts amongst (at least) two parties. The higher the judge, the more “powerful” his interpretations. 77 This possibility pertains, of course, to the “is-” and not to the (especially classical) “ought to be-behaviour” of a judge. But this is what theory is about. 78 Cf. MARMOR 2001.

- 20 -

Compliance of judge (with primary rule)

Within “open texture” (morality of

aspiration)

Within “core of meaning” (morality

of duty)

Self-regarding motives (secondary rule)

Other-regarding motives (primary rule)

Self-regarding motives (secondary rule)

Other-regarding motives (primary rule)

Fig. 2: Norm-compliance of judges

3.2.1.A. Dependent variable as morality of duty The principle of legality (formally) requires the judge to apply the law. Such principle is

expressed through a set of secondary rules (especially the “rules of adjudication”), that compulsorily define the judge’s function within the legal system. Only some of such rules, normally the ones found in the opening articles of civil procedure codes79, explicitly state the judge’s obligation to apply the law in the cases brought before him: i.e., to “say” (dicere) and “enforce” (executare) the relevant “legal consequence” attached to the “Tatbestand” at stake. Other sorts of rules of adjudication further specify some guidelines of the application, thus acknowledging that the ideal of “subsumption” is, at least sometimes, not possible to attain: I am thinking of the famous “interpretative canons”. Despite such nuances, the “official” (legalistic) paradigm treats our dependant variable as a question of binary classification: either the judge applies the norm, or he does not (which includes not issuing a judgement or giving the norm a “wrong” interpretation).

But besides the “official” paradigm (crystallised in the law), also some legal theorists regard judge’s compliance in a “cartesian” way. And, to a certain extent, they may be true when they distinguish, within a norm, between a “core meaning” and a “penumbra” zone (Hart) – the “cartesian” alternative would thus apply to the “core meaning”. In other words, considering this as dependent variable, a theory must ask: what motives do de facto push the judge towards complying or not with the principle of legality (i.e., with his “professional duty”)?

I suggest that this is both a question of self-regarding and other-regarding considerations, though both are (most of the times) intertwined. Concerning the first, the judge will regard himself as an addressee of a secondary rule, just as in the citizens’ theory the citizen acts as the addressee of the primary rule. He will consider non-compliance (in the duty-sense) in the light of probability and severity of sanctions, degree of deviation by his colleagues or frequency of this type of situation. Of course it is here where all kinds of “persuasive” or “coercive” mechanisms by the power-holders are to be considered: they may range from legal education (creation of a legalistic attitude), forms of recruitment and advancement of legal personnel, to surveillance competences of higher courts, increase in the disciplinary sanctions and control, and a long etcetera.

79 As well as in Constitutions (cf. art. 117 of the Spanish Constitution).

- 21 -

What is even more peculiar to a theory of judge’s compliance is that other-regarding reasons are connected to the self-regarding ones (though being different sort of reasons), in that the first provide, so to speak, the “detonating” reasons: it is (generally) because non-compliance might create a positive consequence (for citizen) that the judge starts considering how to behave80. As to the “other-regarding” reasons as such, finally, I find it reasonable to assimilate them to the citizen’s utilitarian reasons in favour of compliance81.

3.2.1.B. Dependent variable as morality of aspiration

“Other-regarding” reasons must indeed be quite strong to determine a judge’s departure from the “core of meaning” of a norm. This is rather different if (equally “valid”) interpretations within the “penumbra zone” are at stake.

We shall assume that, from the point of view of a political regime (legislator), specific parts of the law are aimed at the achievement of particular goals82. We shall further assume that such goals are not clearly detailed in the legal provisions: for one thing, because of the inherent vagueness of language (and the limited extent of a law); for another, due to the “undeclarability” of some of such goals (e.g., because they would give rise to opposition from some sectors, or from the majority of the population). If this is so, the crucial distinction between formal and informal mechanisms (Rottleuthner) must be taken under the loupe: it is essential to explain how the power-holders act upon the judiciary to make them comply, not only with the “core” as such (principle of legality), but also with the politically correct edge of the “penumbra zone”.

Several specific “soft”-measures may serve this purpose: political influence on judges, “political” allocation of cases by court presidents, professional publications and/or organisations, academic doctrine, etc. In addition – and here the dialectic formal/informal gets dangerously blurred – apparently “legalistic” measures may encode “political” orientations: this can happen in legal education, in criteria of recruitment and advancement of personnel, etc83. As regards the “other-regarding” reasons, the considerations under (3.2.1.A) are applicable, though a lesser strength will normally be required in order to exercise the same motivational effect.

To conclude, I shall like to insist on the importance of re-drawing distinctions. For it is true that often detailed instructions will lead to a greater compliance, whilst more “open” guidelines (such as the principle of legality) might leave more room for manoeuvre. However,

80 There can only be found reasons against non-compliance within the realm of secondary rules (“self-regarding” motives): by contrast to the theory on citizens compliance, in which the latter might directly consider advantages arising form non-compliance, it is difficult to imagine (despite of cases of symbolic opposition or strikes) any positive consequence arising for the judge in case of non-compliance which is not directly linked to the efficacy of the primary rule on the citizens (“other-regarding” motives). 81 Since a judge may consider not only (or even not at all) the litigants’ interests but those of another social group (or of society at large), such “assimilation” I have just suggested ought to be understood as being referred to the “motives” of the potential beneficiaries of the judge’s behaviour. 82 This is not to say that a political community has, as such, a “purpose” (cf. WEBER 1922:92). 83 Please note that I am taking for granted that such “measures” fulfil themselves the requirements of (duty-)legality. The case of a system whereby conformity is secured by non-legal means (in the sense of means prohibited by the “rule of law” doctrine: retroactive statutes, vague concepts, special jurisdictions, review by police, elimination of law-judges, direct orders...) deserves a different kind of explanation.

- 22 -

84the contrary is possible, too. As Rottleuthner shows , in the GDR it was the vagueness and (internal) contradiction of the party’s principles which lead to a strictly “legalistic” attitude of the official staff.

3.2.2. Practical aspect Power-holders are interested in making judges (and other civil servants working at the

administration of justice) comply with secondary rules, be it in the sense of “duty” or in the more specific sense of “aspiration”. In the theory we have just sketched, “other-regarding motives” will mainly provide reasons not to comply – for the bulk of reasons to comply naturally derive from the principle of legality... or are artificially created by the political regime to strengthen the “self-regarding” motives for compliance. It is this latter aspect that we shall focus on in this last section, thus providing the sociological reader with some factual refreshment in the form of empirical data concerning strategies used in Spain (in different moments of history) to secure conformity of the legal staff. We shall finally also refer to a second, inverse movement, which can as well be conceived as one effect of the failure of the first (and was historically a prolongation thereof): namely, the case judicial opposition against the political regime.

3.2.2.A. Indoctrination of judicial staff

Transition to democracy of Spain in the late 70ies left intact, amongst other institutions, those conforming the judicial power. Whilst Parliament (Congress and Senate) was considerably renovated thanks to universal suffrage (former persecuted communists occupied central places85), and government had the democratic legitimacy of a Parliament capable of controlling it, Spanish judges of 1977 were those of the franquist period. With one major difference: constitutionally consecrated “separation of powers” put an end to the franquist principles of “unity of power” and “co-ordination of functions”, which had meant – during over 30 years – the functional integration of the judiciary within the governmental apparatus. Judges were now – formally – independent. However, they were materially not in the position to administrate “democratic” justice.

A sociological study of the judges’ profile (in 1984), carried out amongst a total of 1748 judges (of all categories), reveals that the average Spanish judge at the end of 1984 had around 50 years, was a catholic practicant, married to a woman of middle-high class, considered himself “apolitical” or “centrist”, aspired to arrive at the Supreme Court, trusted “very much” in the King, “more or less” in the government’s president and the ministers, “less” in congressmen and senators, and “hardly” in politicians86. Moreover, in 1984 around 90% of the judicial staff were men (considering that until 1966 the judicial carrier was interdicted to women) – a clear sociological turn becomes evident if compared with today’s 60% feminine quota87. At the level of judicial staff, there had been no “transition”. Judgements were made pretty much the way they were during the dictatorship – which was clearly illustrated by an analysis of 630 judgements of the Supreme Court corresponding to the last period of the

84 Cf. ROTTLEUTHNER 19??. 85 So, for example, Santiago Carrillo, Marcelino Camacho and even the poet Rafael Alberti (TOHIBA 1998:38). 86 Cf. El País of 17th March 1985 (study carried out by INOSTAD). 87 TOHIBA 1998:109.

- 23 -

88dictatorship (published in 1986) . The judges with the highest jurisdictional power maintained in their decisions the immutability of the divine law, the necessary obedience of the doctrine of the catholic church, the “genuine respectability” of the Spanish woman (meanwhile they had recognised that the foreign women could admit sexual excesses contra natura), and condemned the defence of divorce as immoral and nihilist. In a more substantive level, they subordinated constitutional liberties to “public order” and considered “anti-Spanish”, not only the communist party (PCE), but also the rather socialist ones.

The permanence of fascist remnants within the judiciary (in the form of its principal actors) contrast with the formal democratisation/constitutionalisation, including the suppression of special jurisdictions (“public order jurisdiction”) and the so-called “police-foro”89. The paradoxical figure of the “legalist” judge appeared: a judge not endorsing the direct effect of the Constitution (consecrated in its article 9.3) and, instead, embracing franquist pre-constitutional laws which had been implicitly derogated by the Constitution. As the prosecutor Eduardo Jaralde – one of the progressist “strange corps” within the judicial staff – declared in 1980, “democratic judges, there are really few; however, in the case of prosecutors, the panorama is desolating”90.

Given this background, one could pose two main questions, from the point of view of the (democratic) power-holders. First, why transition did not imply renovation of the judiciary; second, to what extent politicians tried to exercise control over the “dissenting” judiciary. The first issue is easy to answer: as very often happens in the cases of democratic transitions91, reasons of efficacy justified the maintenance of (at least great part of) the previous professionals. This, however, should have conditioned the second aspect: precisely because they are kept in their places, an additional political intervention is needed to ensure at least compliance at the level of “morality of duty” (i.e., avoiding gross inconstitutionalities) and, if possible, with a sensible (“aspiration”) layout of the new and inherently vague constitutional provisions.

However, the fact is that the first democratic government (UDC) did hardly meet any of such requirements92. This is illustrated through the weak role played by the newly created “Consejo General del Poder Judicial” or CGPJ (General Council of the Judicial Power), the body designed (by the Constitution) as the self-government of the judiciary (replacing the organic direction via executive). Such body, its functions, its nature and its legitimacy were controversial from the beginning and still constitute one of the focus of conflict amongst political parties and State organs. Who were those 20 people (vocals) who were to assume the role of (administratively) controlling the judiciary? The “hot” point was the constitutional article (art. 123) which established that such vocals had to be elected (literally) “entre jueces y magistrados” - a compromise formula with a two-fold meaning, whose English equivalents

88 By the constitutionalist Francisco J. Bastida (cf. El País of 24th August 1986). 89 TOHIBA 1998:27. 90 Cf. El País of 6th June 1980. 91 Cf. HUYSE 1995. 92 Essentially because this government, as democracy itself, was still rather weak and largely dependant on the support of a fragile consensus which reflected society’s deep division (TOHIBA 1998:49-50).

- 24 -

93would be either “from amongst judges and magistrates” , or “by judges and magistrates”. In the first case, vocals would be judges themselves; in the second, they would only be elected by judges, eventually amongst parliamentarians. The UCD government opted for a compromise solution, thus attributing 12 places to (conservative) judges and leaving 8 places open to election amongst (progressist) politicians – a further problem being that too strict political party quotas were set, so that even such 8 places did not bring into the CGPJ a coherent, self-assured democratic wave94. CGPJ was almost monopolised by the principal judges’ association (the ultra conservative APM, Asociación Profesional de la Magistratura)95, whilst progressists judges were accused of “alternative use of the law” (a phenomenon common to several European countries at that time). Democratic fragility was further highlighted by the 1983’s (failed) “coup d’état” (23rd February).

Things, however, changed drastically with the socialists’ (PSOE) arrival at the power in 1983. Many voices within the increasingly self-assured democracy spoke of “the big hope” of having the judiciary indoctrinated to make it perform its constitutionally assigned role. Indeed, socialist government soon started a series of thorough measures to implement what they – even in public – proclaimed as “the politisation of justice, the predominance of the political over the judicial power”96. It first took away certain competences of the CGPJ concerning judges’ selection and professional advancement. But, more importantly, it introduced a Copernican turn within the nature of the CGPJ by establishing the election by members of Parliament of all 20 vocals (from amongst judges... but this was not a problem anymore, for sufficient progressist judges were already eligible)97; such position being only for 5 years (thus permitting an advancement of democratic judges within the lists of eligible candidates)98. Furthermore, the retirement age of judges was lowered, so that 136 judges (including 12 of the Supreme Court) were ipso facto substituted.

A new era of the relations between political power and judiciary seemed to have begun. Though statistics were still in favour of APM, the “new” CGPJ was increasingly active99. However, harmony between legislative and judiciary was never achieved: as “socialist legality” became stronger, it did no longer aim at “adjusting” a dissident judiciary to constitutional demands (“duty”)... but rather at manipulating the judiciary so as to make it

93 “Magistrado” is the Spanish word for a high-level judge; in practical terms, the distinction between “judge” and “magistrate” has no relevance. 94 DE LA CUADRA 2000:25. 95 De la Cuadra explains that democratic judges had asked APM (the soul of the CGPJ) to make a pronouncement of the judges’ submission to the Constitution; such declaration, though approved in the 1983’s congress in the realm of a commission, was reject in the plenary session and thus never promulgated (ibid.:39). 96 This was, inter alia, said by the Subsecretary of Justice, Liborio Hierro, professor of Legal Philosophy (the author had the honour of having him during her first year at university) (TOHIBA 1998:32). 97 A reform introduced by the “Ley Orgánica del Poder Judicial” (Organic Law of the Judicial Power” of April 1985. 98 DE LA CUADRA 2000:37. 99 The CGPJ presided by Antonio Hernández Gil (its second president) renovated the top of the Supreme Court; the one presided by Pascual Sala (his successor) decisively modified the system of recruitment of legal personnel, reducing the quotas of judges allowed to enter the judiciary “after a successful career in the legal field” (a side-way by which too many former politicians, or politically-orientated civil servants, had gained admission to the corps) and emphasising the need for educational qualification and training (TOHIBA 1998:12).

- 25 -

comply with its political conceptions. As De la Cuadra admits, “the CGPJ’s renovation was only the top of an iceberg of a much deeper conception: the subordination of the judicial power to the political power, with one sole condition: that the latter was incarnated by the socialists”100.

3.2.2.B. Judicial opposition against the political regime

In a certain way, socialists had created their own “Frankenstein”, who would revert against its creator once attained the state of maturity. This is exactly what happened to a more and more democratically-based and self-conscious judiciary, which became increasingly reluctant to satisfy the politically dictated “special wishes”101. Such “special wishes” basically meant “impunity in cases of political corruption”. One of the first instances of what later became a never-ending story was the famous opposition of the government – meanwhile governing with absolute majority – to the request of the judge Elisabeth Huertas to interview 90 policemen in connection with an investigation on tortures102. Democratic judges actively contributed to the eradication of anomalous judicial conducts and supported anti-corporativist decisions (such as the expulsion of judges Varón Cobos and Rodríguez Hermida). By means of the “question of unconstitutionality” (before the newly established Constitutional Court, 1985), the judge Fernández Estrago promoted the separation, within the penal branch, of the instruction judge and the sentencing judge (a principle demanded by the European Convention of Human Rights). The first scandals involving political elites (Ley Corcuera) were put to light. But this was just a discrete beginning.

For within some years, corruption cases involving socialist leaders and their environment became the main topic of prime-time journals – up to the point that the public almost got accustomed to it. Scandals like the one around Juan Guerra103, or the long-debated question of the executive’s use of “reserved funds” (which revived, within academic spheres, the delicate question of the judicial review of “purely” political acts), are just some examples; others concern the judicial processing of several statesmen for so-called “dirty-war” against terrorism104.

Following these events, the role of the “rebelled” judge who brings to justice those who make the “loi” of which he classically had to be “la bouche” (Montesquieu), entered Spanish public debate. The term “star-judge” began to be coined, especially referring to the judge Baltasar Garzón – allegedly, a former affiliated to the socialist party who had not been granted the desired promotion within the party’s structure105. Later, this judge became

100 DE LA CUADRA 2000:18. 101 Tohiba speaks of a “schizophrenia of ‘Jueces para la Democracia’” (the progressist judges’ association), consisting in “being ideological neighbours of a political power not at all respectful of the role that corresponds to a judge within a democracy” (TOHIBA 1998:47). 102 DE LA CUADRA 2000:38. 103 The brother of the former president of the government who made repeated used of governmental facilities and resources. 104 Known as the “GAL-case”; “GAL” being a secret commission entitled by the government to use several sorts of discretionary (read: unconstitutional) means to investigate Basque Country independentist terrorism (ETA). 105 For all, El País of 25th October 1997, p. 14.

- 26 -

internationally known (and is considered by some as the precursor of extraterritorial, trans-border criminal justice) for his processing of the Chilean ex-dictator General Pinochet106.

It is generally hold that such discredit by the judiciary of the socialist government led to its loss of political support, thus being substituted after the 1996 elections by the centre-right government of José María Aznar. Since reality is seldom comprehensively assessed by its contemporaries, but only later put into context, we shall not go into detail regarding the present relation between judiciary and political power. Suffice it to quote De la Cuadra on the alleged “two models of judge” to be found in current Spanish judiciary:

“They are two diametrically opposed models of judge, in which positions of left and right matter less than the respective coherence with the role a judge has to perform in a democracy. The first one, heir of the franquist judge, fanatically defends his independence, proclaims an a-politicism that discovers him, used professionality as a shield, the law and the constitution as militant weapons and the prerogatives as support for his exercise of power. The other one, from an independence which he exercises rather than proclaims, recognised himself as servant of the citizen and protector of their rights and liberties and in need of being controlled and criticised in order to avoid abuses of power”107.

* * *

106 An emancipation of the judiciary against political power... beyond the etatist boundaries of time and space. 107 DE LA CUADRA 2000:38-39.

- 27 -

BBiibblliiooggrraapphhiiccaall rreeffeerreenncceess

ALEXY, Robert (1992): Begriff und Geltung des Rechts, Karl Alber, Freiburg/München

BELL, John (2001): French Legal Cultures, OUP, Oxford, 2001 de la CUADRA, Bonifacio (2000): “Veinte años de jueces”, in Revista Interdisciplinar de Estudios

Constitutionales, 16, vol. 37-2

DUBOUCHET, P. (1990): Sémiotique juridique, PUF, Paris

EBERHARD, Christoph (2000): “Ouvertures pour la Paix. Une approche dialogale et transmoderne”, in Bulletin de liason du Laboratoire d’Anthropologie Juridique de Paris, n. 25, 2000, pp. 98-113

EHRLICH, Eugen (1913): Grundlegung der Soziologie des Rechts, Nachdruck Berlin 1967

ESCUDERO, Rafael (2000): Positivismo y moral interna del derecho, Madrid, Centro de Estudios Políticos y Constitucionales

HART, H.L.A. (1961): The Concept of Law, OUP, New York, 1999

van HOECKE, Mark (2001): Jurisprudence, Reader for the General course on “Jurisprudence” in the Master’s Course in Legal Theory (EALT)

HUYSE, Luc (1995): “Justice after Transition: On the Choices Succesor Elites Make in Dealing with the Past”, in Law and Social Inquiry, 1995, vol. 20, 1, pp. 51-78

KELSEN, Hans (1960): Teoría Pura del Derecho, trad. R.J. Vernengo, México, Porrúa (1998)

LUHMANN, Niklas (1988): “The Unity of the Legal System”, in G. Teubner (ed.), Autopoietic Law: A New Approach to Law and Society, de Gryter, Berlin, pp. 12-35

MACCORMICK, Neil (1978): Legal Reasoning and Legal Theory, OUP, 1978

MACCORMICK, Neil (1981): “H.L.A. Hart”, in W. Twining (ed.), Jurists: profiles in Legal Theory, Arnold, London

MACCORMICK, Neil; WEINBERGER, O. (1986): An Institutional Theory of Law, Dordrecht, 1986

MARMOR, Andrei (2001): Positive Law and Objective Values, OUP, New York

OST, François (1998): “La régulation: des horloges et des nuages...”, in B. Jadot and F. Ost, Élaborer la loi aujourd’hui, mission impossible?, Publications FUSL, Bruxelles, 1999

PANIKKAR, Raimon (1995): Cultural Disarmament. The Way to Peace, Westminster John Knox Press, Kentucky

ROTTLEUTHNER, Hubert (1987): Einführung in die Rechtssoziologie, Wissenschaftliche Buchgesellschaft, Darmstadt, 1987

ROTTLEUTHNER, Hubert (1989a): “A Purified Sociology of Law: Niklas Luhmann on the Autonomy of he Legal System”, in Law & Society Review, vol. 23 (1989), pp. 779-797

ROTTLEUTHNER, Hubert (1989b): “The Limits of Law. The Myth of a Regularoty Crisis”, in International Journal of the Sociology of Law, 1989, 17, pp. 273-285

ROTTLEUTHNER, Hubert (1992): “On the sociological concept of law”, in Prawo w zmieniajacym sie spoleczenstwie, Krakow: Uniwersitet Jagiellonski, 1992, pp. 43-53

ROTTLEUTHNER, Hubert (19??): “The conformity of the legal staff”, in Rechtstheorie 15

- 28 -

ROULAND, Norbert (1988): Anthropologie juridique, PUF, Paris, 1988

SEARLE, J.-R. (1995): The Social Construction of Reality, London, 1995

TOHIBA, Juan Antón (1998): Sistema jurídico y transición a la democracia. Luces y sombras, Barcelona, Ariel, 1998

VACHON, Robert (1990): “L’étude du pluralisme juridique: une approche diatopique et dialogale”, en Journal of Legal Pluralism, nº 29, 1990, pp. 163 et seq.

von WRIGHT, G.H. (1963): Norma and Action, London, 1963

WEBER, Max (1922): Soziologische Grundbegriffe (Sonderausgabe aus “Wirtschaft und Gesellschaft”), UTB, Tübingen, 1984

WINTGENS, Luc (1999): “To follow a rule as a legislator – some observations from a legisprudential perspective”, in Rechtstheorie 30 (1999), p. 11-46

* *

*

- 29 -