Empiricism, Constructivism, and Grand Theory in Sociological Approaches to Law: The Case of Transnational Private Regulation

Abstract

Sociological approaches to law in both Germany and the UK have been characterized by internal divisions and divergent methodologies and aspirations. While, in the UK, empirical socio-legal studies have been a prominent way of studying how law shapes and is shaped by social institutions, in Germany, the “grand theory” of systemtheoretical approaches to law has had a lasting impact. In this Article, I discuss the epistemological contrast between these two sociological approaches to law by focusing on how they address transnational private regulation. Empirical socio-legal studies share an epistemic commitment to an objective and knowable social reality, and they tend to see human actors as the motors of history. Thus they focus on the interrelational dynamics within Global Value Chains (GVCs), searching for “what works” in transnational private regulation. On the contrary, systemstheory oriented sociological jurisprudence views social reality as constructed and fragmented into the epistemes of different social systems. GVCs are understood as selfreferential normative orders, in which the question of agency and human actors is secondary—the emphasis is on communications and anonymous forces of ordering. Attempting to inspect the possibilities for synthesis, I ask how “big” we can and should think in law and society. I thus attempt to outline an approach that starts from the materiality of social structures to investigate processes beyond individual agency and to uncover elements of normative reconstruction of the particular area of social activity.

A. Introduction

The workshop that inspired this Article set out to trace the convergences and divergences between socio-legal studies in Germany and the UK. My contribution relates to internal debates on the nature and purpose of socio-legal studies broadly understood—or, differently—of “sociological approaches to law.”¹ Such debates have taken place with different intensity and different protagonists in both countries.² Indeed, in both Germany and the UK, approaches that claim to study law in light of how it intervenes in social reality have diverged over their prioritized methodologies—that of “empirical research” or that of “grand theory.” As empirical research, I understand the research that collects data for the investigation of a particular problem.³ Empirical socio-legal research then uses such data to study “the intersections of law and society and the ways in which law and society are coconstitutive and coexistent.”⁴ As grand theory, I understand the attempt to construct a systematic and encompassing theory of the studied relationship or phenomenon, in this case, how law and society interact and shape each other. For the purposes of this Article, I consider both directions to make part of the socio-legal field, broadly understood. A third direction that shares an affinity with the field of “law and society” but which I will not discuss here is that of critical legal studies and theory.⁵

As I will show, the difference between empirical socio-legal research and grand theory-oriented sociological jurisprudence is primarily a difference of epistemology, reflecting the divide between empiricist and positivist aspirations in social sciences on the one hand, and postmodern constructivism on the other hand. In Germany, systemtheoretical approaches to law have been an influential current of sociological jurisprudence. I will, therefore, discuss the attempt of legal autopoiesis and of its progeny, societal constitutionalism, to present a unifying theory of law and society without relying on the provision of raw data from field research.⁶ Societal constitutionalism builds on the epistemological and analytical premises of systems theory and legal autopoiesis. However, contrary to the latter, it also suggests a normative framework as an answer to the question of how to constrain the expansionary and potentially destructive dynamics of social systems. The reliance on the same constructivist assumptions as systems theory and the engagement with normative thinking makes societal constitutionalism a particularly strong representation of grand theory in contemporary sociological jurisprudence and, thus, a good instance for the comparative work I want to undertake. In the UK, empirical socio-legal research has arguably been a more prominent way to study the law and society nexus. In line with the comparative aspirations of this Special Issue, I will then discuss the underlying methodological and epistemological assumptions of empirical approaches to law. I will draw the comparison between these two different sociological approaches to law by focusing on how they address one increasingly important aspect of legal and social ordering under conditions of globalization, that of transnational private regulation. Unavoidably, the conclusions I draw from this comparative endeavor cannot do absolute justice to the richness of nuances that exist within the paradigms of empirical socio-legal studies or systemtheoretical approaches to law. Yet, the discussion of their underlying epistemologies and how these epistemologies inevitably structure distinct projects captures an essential aspect of the debates about the nature and purpose of sociological approaches to law. It also provides an insight into the divergent development of law and society in the UK and Germany.

The case study that I use to uncover the different starting points, aspirations, and results of empirical socio-legal research and systemtheoretical analysis is that of transnational private regulation. Private regulation I understand as the “voluntary, private, non-state industry and crossindustry codes that address labor practices, environmental performance, and human rights policies.”⁷ As a form of legal pluralism, private regulation poses a challenge to legal centralism and state sovereignty, making doctrinal approaches to law illsuited to capture its significance. Considering that private regulation does not depend on the coercive power of the state apparatus and, in that sense, is not a product of a national legal order, it could be readily dismissed as a nonlegal phenomenon.⁸ Yet, private regulation produces binding and otherwise normative effects on the ground for a plurality of actors in global supply chains. The nondoctrinal, “beyond the books” perspective of sociological approaches to law is sensitive to this normativity that is not linked to state law.

Empirical socio-legal studies approach transnational private regulation through the specificities of each particular context: Which actors are involved; how it is applied in practice; whether it has an impact, and, if so, what the reasons behind its success are. Although a general conclusion about all empirical socio-legal work in the field of transnational private regulation is beyond the aspirations of this Article, the four research works that I analyze point to the conclusion that an emphasis on “context” and, eventually, a level of particularism, is a shared and unifying theme of this strand of research. Underlying this type of sociological approach is an epistemic commitment to an objective and knowable social reality and, to a certain extent, a methodological individualism,⁹ which seeks to explain social phenomena in terms of facts about individuals.

In line with systems theory, societal constitutionalism approaches transnational private regulation the opposite way: Fitting concrete instances into its bigger theoretical framework. Systems theory posits that society is fragmented into multiple systems of communication that do not interact directly with one another. Instead, each system translates “irritations”¹⁰ from its environment into its own code communication. As a result, change cannot be imposed upon systems but rather stems from “within” each social system.¹¹ Societal constitutionalism adds a normative dimension to this descriptive framework by suggesting that social systems need to develop forms of selflimitation and internal democratization.¹² This “constitutionalization” of social systems is necessary in a world where dangers for the social fabric do not emanate solely from political power but also from other systems, most prominently the economy.¹³ Transnational private regulation appears as a fitting instantiation of this theoretical framework, as it represents attempts of economic actors to selflimit, often in response to social pressures – to irritations from their environment. Underlying this approach to understanding private regulation is, first, a constructivist epistemology that views social reality as constructed and fragmented into the epistemes of different social systems. Second is an antiindividualism that refuses to see human actors as the agents of social action and points instead to constructs, the communications of which human actors express in their social interactions.¹⁴

While these approaches initially appear irreconcilable and each has its own value as a distinct project, I believe that there is also a margin for a middle ground, or, more ambitiously, for synthesis. This emerges when considering whether there is a spectrum between an encompassing theory of society and sectoral approaches into the specificities of particular social problems. In other words, what are the degradations of thinking “big” in law and society? In that direction, this Article attempts to draw the contours of an approach that focuses on the materiality of social structures. This materiality can be empirically examined not only to provide contextspecific insights, but also to uncover elements of normative reconstruction of the particular area of social activity. If frameworks that present themselves as merely “descriptive” do in fact convey implicit normative presuppositions, then empirical research has an inherent potential for normative thinking that extends beyond institutional reforms. A synergetic approach would start inductively from the empirical examination of the materiality of social structures to investigate and possibly to challenge processes that take place beyond individual agency.

In Section B, I show how empirical socio-legal studies and also legal autopoiesis and societal constitutionalism share an external—as opposed to internal, in other words, doctrinal—perspective to law, but differ in their epistemological bases. In Section C, I discuss in detail the response of socio-legal studies and societal constitutionalism to the conundrum of transnational private regulation. In particular, I focus on the role each approach attributes to agents and structures in Global Value Chains (GVCs). In Section D, I attempt to outline a role for “thinking big” in sociological approaches to law and to trace elements of possible convergence between the different approaches. I conclude the Article with a brief summary of the main points discussed and with a note on how thinking on synergies might develop further.

B. Empirical Socio-Legal Studies and Legal Autopoiesis: Converging Perspectives, Diverging Epistemologies

Legal autopoiesis, the conceptual foundation of societal constitutionalism, and empirical socio-legal studies both follow the “sociology of law” tradition of thinking about the law from an “external,” observer’s perspective.¹⁵ Where “restricted legal theory”¹⁶ adopts a standpoint that is internal to statebased law, aspiring to work out how law is or is meant to be interpreted by legal practitioners, sociological theories of law deliberately distance themselves from the professional viewpoint of the legal practitioner. The limitations of the internal perspective are captured by David Schiff, according to whom “jurisprudence writers in general, have tended to show a lack of concern for an analysis of the structure of society which accounts for the workings of the legal systems.”¹⁷ To address this shortcoming, sociological theories have attempted to answer broader questions about the role of law in society, its relation to political and economic structures, or its role in historical change and social transformation.¹⁸ In that direction, legal autopoiesis is not interested in questions of jurisprudence for their interpretative value for doctrine or case law. Rather, it uses them to distill a broader principle of social theory—the self-referentiality of the law. This becomes instrumental in conceptualizing law as a social system wherein the “paradox” of selfreferentiality is not something to be resolved but is rather constitutive of the system and structural in making it operational.¹⁹ Similarly, empirical socio-legal studies are not employing empirical designs to evaluate the internal coherence of the legal doctrine. Instead, they seek to test assumptions about the operations of the legal system and to study how the law affects or is affected by various social institutions.²⁰

Starting from such an external perspective and a sociological concept of law, empirical legal research, for many a core element of socio-legal studies, attempts to use the methods of social sciences and study law and legal practices in an objective light, as a set of observable facts. According to Simon Deakin, this type of approach is based on the premise that data gathered through empirical research is “capable of representing features of the social world which exist independently of the process of inquiry which is being used to study them.”²¹ In other words, empirical legal research is underpinned by the idea that, within a particular social context, there can be objective knowledge that is not merely interpretative or hermeneutics.²² Such “truth” can be attained, or at least approached, through the rules of good scientific practice. Admitting the possibility of objective empirical knowledge, even with a role for intellectual construction, follows the currents of logical empiricism and positivism in social sciences.²³ Historically, the aspiration behind the use of empirical methods has been to transform society through the use of knowledge: Even in the absence of concrete predictions, the data gathered by social sciences provides a framework of argumentation, dispelling speculative metaphysical doctrines.²⁴

On the contrary, legal autopoiesis, and by extension, societal constitutionalism, relies on a postmodern, constructivist social epistemology, according to which there is no “reality” to be discovered. Instead, “reality” is constructed. In the case of law, it is law itself as an epistemic subject that constructs its own reality.²⁵ Systems theory posits that society is differentiated into distinct social systems, each with its own code of communication and, inevitably, its own episteme. In fact, the loss of a “unifying mode of cognition”²⁶ is a fundamental attribute of modern society. As each social system constructs its own reality, law becomes a “selfvalidating discourse … largely impervious to serious challenge from other knowledge fields.”²⁷ This perspective leads to a foundational clash with the positivist ontological underpinnings of empirical socio-legal studies and their invocation of the authority of controlled scientific observation as a privileged access to reality. As Gunther Teubner emphasizes, following Niklas Luhmann, “science does not discover any outside facts; it produces facts.”²⁸ Similarly, law is selfreferential and produces its own distinctions and categories. Most characteristically, law should not be understood as a product of particular individuals’ actions—including, legislators and judges. Instead, it is law itself as a communicative process that “produces” human actors as its semantic artifacts.²⁹

The epistemological divide between socio-legal studies and societal constitutionalism corresponds to the epistemological and ontological divide between positivism, empiricism, and rationalism on the one hand, and constructivism on the other hand.³⁰ As I will show in the following section, the empirical dimension and largely positivist ontology of empirical socio-legal studies result in a study of the interrelational dynamics of the actors within GVCs, constituting an effort to uncover “what works” in transnational labor law. On the contrary, societal constitutionalism starts from an understanding of GVCs as selfreferential normative orders in which the question of agency and particular actors is secondary. Instead, the normative dimension of societal constitutionalism places the emphasis on the structures and mechanisms that may generate selfregulatory dynamics within social systems, such as human rights or the corporate codes of lead firms.³¹

C. Case Study: Agency and Structure in Global Value Chains

The fact that multiple systems of ordering, not necessarily linked to the legitimate state legal order, might coexist in the same place at any one time has since long been recognized and theorized by socio-legal research.³² Private regulation is one instance of this type of legal pluralism. The different ways it has been probed and studied within the socio-legal field flesh out how the different epistemological and methodological assumptions of empirical socio-legal studies and grandtheory sociological jurisprudence lead to divergent ways of conceptualizing the phenomenon and to distinct normative projects.

In a global economy characterized by an organizational system of vertical disintegration, fragmented ownership, and dispersed production, lead firms have managed to keep manufacturingrelated concerns outside the legal boundaries of the firm.³³ However, as an appeal to consumers or as a result of social pressures often following a moment of crisis,³⁴ lead firms have, in many cases, instituted private regulatory regimes that aspire to improve working conditions within supply chains. Currently, the labor aspect of transnational private regulation and the question of lead firm accountability for human rights violations in global supply chains is becoming a growing concern in both studied countries. In Germany, the Jabir v KIK case of 2019 highlighted that it might be possible to establish lead firm liability based on obligations assumed by the firm and incorporated in corporate codes that make part of supply chain agreements.³⁵ Similarly, in the UK, the 2019 Lungowe and Ors. v Vedanta Resources Plc and Konkola Copper Mines Plc case underscored that a UK parent company could arguably owe a duty of care to the people affected by its subsidiary’s operations.³⁶

Yet, the normativity and the social reality of transnational private regulation pose a challenge to traditional conceptions of law that have as their starting point legal centralism and state sovereignty.³⁷ This makes the external perspective of sociological approaches to law uniquely suited to examine this phenomenon. Empirical socio-legal studies are often concerned with “what works” in transnational private regulation—in other words, what can be evidenced as having an effect. Drawing from the positivist ontology of social sciences and from a methodological individualism that unpacks collective phenomena through the agency of individual actors operating in particular contexts, empirical work concentrates on context, specific case studies, and actors in the value chain. The caveats of inductive reasoning notwithstanding, the researched case studies help to draw lessons of broader theoretical significance. For the purposes of this Article, I summarize four such attempts to delve into the specificities of GVCs, to trace the impact of corporate codes of conduct, and to discern how they interact with public regulation, or what meaning they may acquire when used by local actors as leverage. In these cases, the authors generally refrain from postulating a grand theoretical framework. Any attempts to understand the structure of GVCs and the role of private regulation therein are deduced from the data acquired through the research, the subjects of which are specific actors within the value chain—for example, workers and unions.

I. Empirical Studies

One example in this direction is the work of Tim Bartley and Niklas Egels-Zanden, who employ qualitative research methods to interrogate the common hypothesis of the “decoupling” between the symbolic CSR commitments of lead firms and concrete work practices.³⁸ In particular, they are interested in how local actors within the value chain use the leverage provided by CSR codes to achieve improvements in working conditions. NGOs and especially trade unions use these largely symbolic structures as resources and an opportunity to enroll other actors in order to achieve local goals.³⁹ One prominent example of such CSR leveraging is “brand boomerang” campaigns, in which union activists facing repression from factory managers cooperate with international allies to pressure lead buyer firms.⁴⁰ Yet, the authors point out further avenues taken by Indonesian unions in using CSR commitments to advance their causes. Unions appeal to brands’ compliance staff to resolve grievances with factory managers or use the possibility to do so as a form of pressure during negotiations. They also occasionally attempt to engage in capacitybuilding and participate in standardsetting together with lead firms. In all these instances, the addressee of the demand to promote workers’ rights is the lead firm of the value chain, as opposed to the government.⁴¹ Considering the occasional and limited success of such strategies, Bartley and EgelsZanden suggest that, instead of complete decoupling, it is more suitable to think of CSR and actual labor practices in terms of “contingent coupling.” The coupling is contingent because it emerges out of highly contextual contention beyond universalizable recipes for success, and it only temporarily addresses structural, underlying problems, with transformative gains being rare.⁴²

Another example of empirical research in transnational private regulation that highlights the importance of context is that of Greg Distelhorst and others in the electronics industry.⁴³ Using quantitative analysis of factory audits and qualitative fieldwork to identify the institutional dimensions that complement private regulation, the authors suggest that the local institutional context is the most significant predictor of private regulation being effective at improving labor standards. Strong state regulatory institutions and a strong local civil society are crucial for meaningful compliance, while they also enable synergies with private regulation that lead to higher standards of labor rights protection.⁴⁴ Specifically, the authors examined how HewlettPackard (HP) monitors and facilitates the compliance of its suppliers with the voluntary Electronics Industry Citizenship Coalition (EICC) code that HP helped establish in 2004. While factory audits reveal that suppliers are far from fully compliant,⁴⁵ working conditions appear to have improved as a result of HP’s engagement with suppliers.⁴⁶ Yet, the rate of improvement and compliance with social standards is best explained not by factorylevel predictors, but rather by examining the local institutional environment. In countries with weaker regulatory institutions, including developing countries, the strength of civil society becomes a differentiating factor for the effectiveness of compliance. For example, in Mexico, the mediation of a local NGO led to the creation of a relatively successful collaborative dispute resolution institution that subsidized inefficient state institutions. By contrast, in China, such civil society partners were not easily available, and unionization did not sufficiently advance worker interests.⁴⁷ As a result, compliance with the EICC was lower and private regulation could not sufficiently complement lax state enforcement of labor laws. Overall, Greg Distelhorst and others underscore that the local institutional context is vital for the success of transnational private regulation, while private and public regulatory regimes should be thought of as complements rather than rivals.

The study conducted by Andrew Crane and others on forced labor in domestic supply chains in the UK offers another example of focusing on the institutional context to untangle the particular workings of GVCs.⁴⁸ Shifting the spotlight from the developing world to forced labor in developed countries, they draw attention to the role of labor market intermediaries. For example, the construction and food industries make significant use of “temporary, casual, and other forms of contingent labor, the supply of which is often outsourced to third-party labor providers.”⁴⁹ While a key factor for the emergence of forced labor in GVCs is the price pressure exerted by buyers from the Global North on manufacturers in the developing world, in supply chains of the Global North the division of legal status and protections offered to workers depending on their country of origin is critical. The contrast between domestic and global supply chains becomes even more prominent in the discussion of remedies and solutions to such governance gaps. While GVC scholarship emphasizes the potential of private regulation and explores the possibilities for reconfiguring private law instruments along the value chain,⁵⁰ domestic supply chains bring to the foreground the state, regulatory enforcement, licensing, and policing. In a sense, this is a response to another difference between global and domestic supply chains—their level of complexity. As Crane and others point out, the “cult of complexity” that surrounds global supply chains overlooks important aspects of simplicity within domestic supply chains.⁵¹ Critical in the suppression of forced labor in domestic supply chains then becomes the coordination of alreadyexisting hierarchy and marketbased initiatives designed to address labor abuses, as well as regulation around immigration and other structural conditions that promote vulnerability to exploitation.⁵² Eventually, this accentuates the importance of politics, as opposed to capacity deficits.

Anthropological and ethnographic work within GVCs reinforces the idea that structures of exploitation are contextual. This also supports the conclusion that the normativity of private regulation needs to be addressed in its particular instantiations. Anna Tsing, in her study of supply chain capitalism, draws attention to the fact that the cultural diversity of GVCs is a structural element of the processes of exploitation that develop within the chain.⁵³ In other words, according to Tsing, supply chains vitalize performances of non-economic features of identity and neutralize worker negotiation leverage to maximize exploitation beyond what would be expected from general economic principles—for example, Christian service work at Wal-Mart, women from the Global South with sewing skills learned at home, coding work as entrepreneurship for white men holding on to independence, etc. As diversity becomes ingrained in the processes that make GVCs operational, any comprehensive legal and political theory of supply chain capitalism would have to take into account the “full tapestry” of gender, race, and national status through which exploitation becomes possible.⁵⁴ A theory of transnational labor rights and “decent work” can only aspire to be normative through context, through the lived reality of intersecting structures of exploitation. There can be no unifying theory of emancipation designed on paper; instead, theorybuilding must start from the ground up.

II. Societal Constitutionalism

Does then this emphasis on context and particularity preclude the possibility of a grand theory of supply chain capitalism? Societal constitutionalism shifts the focus from agents to structure, conceptualizing context as an integral feature of its grand theory. The move to structure and the core methodological challenge societal constitutionalism poses to empirical socio-legal approaches does not consist of simply taking into consideration the aggregate dynamics arising from the decentered use of private autonomy. That is something empirical approaches are attentive to, as manifested in the examples above, such as the cumulative and strategic use of codes of conduct in Bartley and EgelsZanden. Rather, it consists of undermining the fundamental assumption that individuals are the agents of social action and, eventually, the makers of history. The systemtheoretical underpinnings of societal constitutionalism draw attention to constructs, primarily to selforganized systems of communication. In systemtheoretical terms, humans cannot be thought of as independent agents, beyond the confines of social systems; instead, they partake in multiple and overlapping systems of communication, the codes and functions of which they express through their actions. As a result, the individual is not the basic unit of analysis. She is a medium through which the workings of broader social systems become manifest.

This defines both how to understand society and how to envision social transformation. As society is imagined, divided into multiple selfreferential social systems, which remain functional only by translating external complexity to their own code of communication, change and evolution can only happen in one way: Systeminternally.⁵⁵ Social transformation is only possible through the internal workings of social systems, as opposed to superimposition by external agents, such as the state. Effective limitations on the destructive expansion of social systems, like the economy, can only be the result of systemspecific logic.⁵⁶ In the context of the economy, this is because of two main reasons. The first is that the necessary knowledge for inhibiting a catastrophic expansion of economic rationalities cannot be built from external observation points, such as that of the state. There is no comprehensive, centralized knowledge that can capture, let alone regulate, the hypercomplex processes of the global economy.⁵⁷ A mundane manifestation of this lack of epistemic and enforcement capacity is the way transnational corporations manage to circumvent and avoid exante regulations, such as taxation. The second reason is that if politics is left to define the fundamental principles of other social systems, such as that of the economy, there is a risk of dedifferentiation of society and of slippage to totalitarianism in which politics aspires to represent the whole of society.⁵⁸

Therefore, the solutions to the conundrums of decent work, sustainable development, and even social justice and equality, lie within the transnational economy itself. GVCs must be understood as normative orders in need of constitutionalization.⁵⁹ However, the constitutionalization process must not replicate that of the political system.⁶⁰ Different, nonstate, social structures develop their own forms of selflimitation that amount to constitutionalization through their autonomous processes. This often happens ad hoc at the emergence of a particular social problem.⁶¹ There is no single, allencompassing social constitution—only “islands of the constitutional in the sea of globality.”⁶²

One way of envisioning such transnational constitutionalization of the economy is through corporate codes of conduct.⁶³ By applying to contractors and subcontractors, the codes of transnational corporations constitute regimes of corporate selfgovernance that coordinate and homogenize outsourced production. While originally designed for guaranteeing product and service standards, such codes have the potential to—and often, indeed, do—expand into areas traditionally understood as “externalities” of the supply chain: The safeguarding of labor rights among suppliers or the impact of the outsourced production on the environment.⁶⁴ The genesis of these codes may be traced to the susceptibility of lead firms to “learning pressures,” that is, to external pressures, such as reputational sanctions, that lead to internal selflimitation. Such pressures may result from court cases of supply chain liability, soft international legal norms, or civil society pressures and political consumerism. Contrary to stateinitiated soft law on the social responsibility of transnational corporations,⁶⁵ the resulting corporate codes of conduct are considered an effective and binding form of private ordering.⁶⁶

A second lens through which to understand the normative direction of constitutionalizing GVCs is that of human rights. Human rights make up an integral aspect of the decentered conceptualization of society that informs societal constitutionalism. However, in a clear shift from agents to structure, the crucial feature of human rights is not their role as guarantors of affected legal interests of individuals, but rather their function “as social and legal counterinstitutions to the expansionist tendencies of social systems.”⁶⁷ The question behind the “horizontal effect” of human rights is not a question of balancing the rights of concrete actors—instead, it is an “ecological” question of the weight of the injury caused by the expansion of a social system to other functional systems.⁶⁸ The case of labor and human rights violations in sweatshops is elucidating. In this case, it would be a mistake to consider factory managers as the only ones responsible, especially considering the price pressure imposed on them by lead firms. Yet, focusing only on lead firms is equally misleading. Often, arguments of lack of knowledge or control over suppliers’ management of production have a basis as monitoring and auditing processes might be circumvented. It is, instead, “anonymous market forces” that are eventually responsible for the structural violence that characterizes sweatshops.⁶⁹ Therefore, human rights need to be conceived as a defense against precisely such anonymous forces, rather than against specific actors.

Despite the normative direction of societal constitutionalism toward the democratization of the economy from within, there is no room for optimism for an overarching resolution to issues of justice and genuine fulfillment of human rights. The project of a utopian justice remains a conceptual impossibility. Humans are, by definition, neither the subjects nor the objects of communications—these are the social systems in which humans take part. As a result, society can never aspire to fully do justice to humans, who stand outside communication. At best, it can create the kind of irritations or “learning pressures” to social systems so that they remove unjust situations. But then, it can be asked, how do we know which situations are unjust? The way out for societal constitutionalism is to draw attention to spontaneous indignation, protest, and unrest. This is a move that reconnects a grand theory project with empirical reality and, in a way, it prepares the ground for the argument I will present on the possibilities for synthesis. While the claim that justice can only be construed in negative terms may be seen as antiutopian, it shares the characteristic grand theorylike attribute of making broad claims about the nature of social order. The “negativity” of this overarching perspective captures the postmodern incredulity to narratives of incremental reform, a tendency present in the empirical analyses of GVCs discussed above. Drawing from the comparison between empirical socio-legal studies and societal constitutionalism I outlined in this section, I will now attempt to further elucidate the role of “grand theorizing” in the socio-legal field.

D. How “Big” Should We Think in Law and Society?

The discussion of the empirical research in GVCs indicated that the authors did not—with the exception of Anna Tsing—attempt to link their findings to an overarching theory of society or of the role of law and private regulation in conditions of globalization. Is there a value in extrapolating from empirical findings to more systematic theorybuilding? What is the place of social and legal theory—and especially of grand theory—in the socio-legal field and in connection to empirical scholarship?

Underlying empirical socio-legal work is the assumption, first, that objective social reality exists, and second, that it is, in some way, observable, intelligible, and even measurable. The existence of a material, social reality implies that phenomena occur within a specific socio-historical context. It is by gathering data within that context that researchers may find regularities and patterns behind social phenomena. By definition, then, all knowledge is partial and contextual. Any unitary account of the social order is at best reductive and at worst obfuscating, possibly manipulating data to advance transhistorical claims.⁷⁰

On the one hand, relying on empirical data to address specific social problems has had a distinctly “progressive” and “reformist” character. Indeed, a cardinal aspect of legal realism was the urge to study the social facts behind legal endeavors, to demystify metaphysical legal doctrines through the knowledge of their social impact, and to shape a better, more moral law based on the teachings of sociology, economics, or anthropology.⁷¹ For example, in the U.S., this realist recruitment of empiricism and the sciences was the intellectual spearhead behind the New Deal policies in the 1930s.⁷² At the same time, however, the reliance on facts and data fueled the “rationalist” turn in social disciplines, namely the Popperian dictum that beliefs are rationally grounded only if they can pass an experimental test of falsifiability.⁷³ This test was meant to distinguish between factual and normative claims, placing the social disciplines on the path to become “real” sciences.⁷⁴ By separating the normative from the descriptive, while attributing scientific credence only to the latter, the rationalist stance was decisively antiutopian. Thinking “big” in social philosophy was tantamount to “mystifying nonsense.”⁷⁵

But can we so neatly distinguish between the factual and the normative? Or does the discernment of the factual already smuggle in normative preconceptions? According to Thomas Kuhn, our access to facts, in the light of which we are supposed to test our beliefs, is always filtered by existing “paradigms” of understanding.⁷⁶ If our access to reality is dependent on contingent beliefs and paradigms of understanding, then the rationalist project begins to lose ground and the boundary between the factual and the normative becomes more porous. Knowledge is not partial and contextual; it is socially constructed. Postmodern constructivist positions that start from this premise would not normally dovetail with singular, overarching schemes of explanation.⁷⁷ However, the constructivist position is in itself an overarching, singular explanatory scheme about society. Theoretical endeavors that start from such an epistemology cannot but morph into some form of grand theory.⁷⁸ They are bound to prioritize concepts as opposed to concrete social reality because they see concepts at the roots of all understanding. At the same time, the recognition that the factual cannot exist irrespective of some normative preconceptions implies that even an explicitly selfdeclared empirical approach, like that of Empirical Legal Studies, cannot help but convey—at least implicitly—a theory about the role of law in society and the way it mediates between power and reason.⁷⁹ Even an instrumental approach to legal reform entails the commitment to a background prescriptive theory of the relevant area of social practice, as manifested at least in selecting the cases to be examined.

Fleshing out such normative commitments may lead to delimiting the role law can play in social transformation, acknowledging that it is only one among interrelated social frameworks where social hierarchies might be instantiated.⁸⁰ For example, in that direction, societal constitutionalism delimits what law can achieve by daring a big claim about justice: That it is unattainable—at least through law. The determinism of this claim is only nuanced by its attachment to the contingency of the meaning of justice.⁸¹ For law to approach justice, it is neither enough to refer to its own internal principles (positivism) as justice searches for an extralegal orientation, nor to appeal to metaphysical authorities beyond law that supposedly possess substantive criteria of justice (natural law). Instead, law is dependent on its “ecologies”: Its social, human, and natural environment and the varying understandings of justice therein.⁸² Regardless of where one stands on this pluralist utopianism, it constitutes a type of normative thinking that goes beyond legal reform. Societal constitutionalism engulfs contingency, context, and local variation as parts of a singular explanatory and normative framework. Paradoxically, difference becomes the unifying theme of a constructivist, postmodern grand theory.

Is the dichotomy between empirical socio-legal approaches and constructivist grand theory approaches unbridgeable? Critical realism offers a way to imagine a possible middle ground or even a synthesis between empirical socio-legal studies and grand theory. Critical realism rejects the methodological individualism of explaining social phenomena via an ultimate recourse to the individual in a way that is reminiscent of systems theory: A study of society is not a study of the behavior of large groups but rather a study of the persistent relations between individuals or groups.⁸³ However, critical realism also acknowledges that society consists of real people and that “the material presence of social effects consists only in changes in people and changes brought about by people on other material things.”⁸⁴ While people unconsciously reproduce the structures that govern their lives, they retain agency in the process. The hegemony of particular social structures is ensured through the repetition of their performance. In turn, this repetition constitutes a particular social order and the individuals therein, defining the contours of their agency.⁸⁵ Therefore, social structures, if only by reason of them constituting subjectivities, have a material, palpable manifestation in the real world. While this does not exclude that some aspects of the world are socially constructed, it allows a wide margin for empirical research to work with and elucidate this materiality.

Grand theories in sociological approaches to law base their normative output on presuppositions that are inevitably axiomatic. For example, societal constitutionalism’s normative agenda of “democratizing the economy from within” follows from the presuppositions, first, that society is fragmented in different systems of communication and, second, that these systems cannot communicate directly. The impossibility of direct communication implies that topdown state intervention in the economy cannot be efficient, redirecting the focus of social transformation in systeminternal processes.⁸⁶ Yet, how do we know that these presuppositions are “true”?

Admitting that social structures possess materiality means that some type of empirical examination of them must be possible and that they are not accessible only through reason. Yet, at the same time, admitting the existence of structures that go beyond the individual use of private autonomy invites a level of abstraction capable of capturing processes that take place “beyond individual agency,” such as the anonymous market forces defining sweatshops. Empirical socio-legal research has the capacity to uncover how social structures are shaped and negotiated in specific social practices, localities, and contexts. In Anna Tsing’s words, “it is time to reimbue our understanding of the economy with the art of noticing.”⁸⁷ A similar undertone echoes in Boaventura De Sousa Santos’ argumentation for an “emancipatory common sense.”⁸⁸ In that sense, empirical socio-legal studies can be most promising when they are not merely attuned to possible institutional reforms, but when they discover, inductively, elements of normative reconstruction of the particular area of social activity. What meaning do concepts like justice acquire in the human “ecologies” of the law? By turning the attention to “subaltern counterpublics”⁸⁹ and giving them a voice, counterhegemonic values that were so far unexplored may gain prominence, disrupting currently dominant ways of social ordering. In that direction, the fieldwork of De Sousa Santos on the parallel legality of the favelas in Rio de Janeiro provides a basis for theoretical insights on law, postmodernism, and social struggles.⁹⁰ Similarly, Tsing’s ethnographic research on supply chain capitalism shows how diversity is both the condition that makes value extraction from supply chains possible and a challenge to GVCs, that is, a possible opening to noncapitalist spaces.⁹¹ An inductive approach of descriptive and normative inquiry may never meet the requirements of the rationalist, “scientific” objectivity. Yet, it could be the underpinning of utopianism and normative legal thinking that imagines new institutional and social arrangements.

E. Conclusions

Both in Germany and the UK, sociological approaches to law have had internal divisions, methodological rifts, and divergent aspirations, while still sharing an external perspective to the study of law. While empirical socio-legal studies have strong institutional presence and influence in legal research and education in the UK, the same cannot be said about Germany.⁹² At the same time, Luhmann, Teubner, and others in sociological jurisprudence from a systemstheory perspective have had a lasting influence in German legal academia.⁹³ In this Article, I have tried to show that these projects do not differ only in their methodologies or their style but also in their epistemologies and ontological perspectives on social reality. Where empirical socio-legal studies tend to see an objectively existing social reality that can be probed and studied through the collection of data, societal constitutionalism – and legal autopoiesis more broadly – see a constructed and fragmented reality in which there is no “unifying mode of cognition.”⁹⁴ This structures different ways to approach societal problems and different ambitions in suggesting explanatory and normative frameworks. Indicatively, the tendency of societal constitutionalism to decipher social reality through structures, such as the communications of social systems, rather than through human agency, leads to holistic explanatory and normative frameworks despite taking into consideration context and difference. On the contrary, the focus of empirical socio-legal studies on observable social reality and concrete individuals renders such approaches selfaware of the partiality of their contribution.

The discussion of transnational private regulation revealed these rifts. Empirical socio-legal studies tend to focus on the dynamics between agents in GVCs and on the concrete impact of transnational private regulation, often attempting to uncover what could make this form of legal pluralism more effective in protecting labor rights or the environment. Societal constitutionalism emphasizes the need for structures and mechanisms that may generate selfregulatory dynamics within social systems, such as, for example, human rights or the corporate codes of lead firms. While the content of these mechanisms may be contextspecific, the idea of self-limitation—as opposed to, for example, external limitation—is a necessary and unavoidable result of the theoretical premises of societal constitutionalism.

The quest to imagine possible synergies between the discussed ways of thinking about the law sociologically extends beyond the ambitions of this Article. Indeed, the quest to adequately capture the materiality and meaning of “context” is everpresent in socio-legal studies.⁹⁵ Synthesis of the empirical and the grand theory perspective is premised on the idea that social structures, such as the “anonymous market forces”, do, in fact, have material existence, at least because they shape and condition individuals. Yet, while the “individual” is conditioned through its contact with social structures, empirical research targets subjectivities under continuous forces of transformation. Even if a certain outline of social structures is postulated, such as the asymmetry of power relations in value chains, the outcome of the produced subjectivities remains uncertain. For instance, workers could endorse corporate codes and aspire to be part of a broader corporate culture, they could reject them as paternalizing, or they could only use them strategically. Starting inductively from the materiality of social structures and the conditioned subjectivities to eventually uncover and normatively evaluate processes beyond individual agency may be a key in thinking “big” in law and society.