Juridical sociologies. Law and society from 1814 to the 1920s

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Why did the topic of law play a central role in sociology as it emerged? And why is this no longer the case today? The present study explains this transformation of the sociological interest in law by means of a genealogical investigation of the mutual references of the jurisprudence of private law and sociology, starting from the beginning of the 19th century.It was precisely in the jurisprudence of private law that the German Historical School developed ways of problematizing the relationship between law and society, which concerns not only legal theory but also legal dogmatics and methodology. On this basis, a dispositive analysis of legal discourses can be used to work out three such ways of problematizing: the ‘dispositive of representation’ in the debates about the German Historical School, in which law is problematized over the question of the adequate representation of society; the ‘dispositive of function' in the dispute about the social task of the Civil Code (BGB), in which the regulatory function of law vis-à-vis society is at stake; and finally, the 'normative dispositive' in the dispute over methods at the beginning of the 20th century, in which the question of how the normative evaluation in judicial judgments can be scientifically substantiated leads to a divorce between jurisprudence and, in particular, sociology on the difference between ‘ought’ and 'is'.These three modes of problematization of the relation between law and society find their way into sociology as it emerges, as can be seen paradigmatically in the sociological projects of Émile Durkheim, Max Weber and Ferdinand Tönnies. Each of them focuses on one possibility of determining the relationship between law and society: analogous to the ‘dispositive of representation’, Durkheim recognizes in law the collective consciousness; Tönnies focuses on the ordering function of law, and his sociology ends up by developing a new philosophy of law in view of the 'social question'; Weber can be assigned to the ‘dispositive of normativity’, since in all his methodological writings he struggles with the epistemological relationship to legal science.The proximity to legal discourses - the 'juridical sociologies' of Durkheim, Tönnies and Weber - results in the necessity of a separation between sociology and jurisprudence. In their conclusions, these three authors make shifts within the jurisprudential dispositives which ultimately lead to the loss of law for sociology. This historical study identifies the point in the problematization of the relationship between law and society at which one can intervene in order to make law addressable again for sociology.