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Codification and Normativity: Catalan “Exception” and European “Norm”

Published online by Cambridge University Press:  28 October 2011

Kenneth F. Ledford
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Extract

At the crossroads of sociology and history, scholars trained in different disciplines write legal history while engaged in a protracted guerilla war that focuses upon notions of normativity. Law and legal development as objects of investigation evoke in the sociology of law the very essence of normativity: what is law if not codified norms, and thus itself subject, perhaps, to norms of development or at least rationality? Conversely, legal historians trained in history departments, who subscribe to the particularizing norms cherished by that discipline, consciously pride themselves on their power to resist the temptations of normativity and, perversely in the view of some, insist upon examining, even celebrating, the deviant, the limiting case, the “exception to the rule.” At different times, one approach or the other has dominated the scholarly literature. Notoriously, the Parsonianism of the 1950s and early 1960s elevated a neo-Weberian normativity to hegemony in legal history as well as in social theory; now the chastened decades at the end of the twentieth and beginning of the twenty-first centuries have tipped the balance within legal history to social history's focus on people, ideas, and experience on the margin, a focus so full of potential to erode general schemes of normative development.

Type
Forum: Comment
Information
Law and History Review , Volume 20 , Issue 2 , Summer 2002 , pp. 385 - 392
Copyright
Copyright © the American Society for Legal History, Inc. 2002

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References

1. See Jacobson, Stephen, “Law and Nationalism in Nineteenth-Century Europe: The Case of Catalonia in Comparative Perspective,” and Harty, Siobhán, “Lawyers, Codification, and the Origins of Catalan Nationalism, 1881–1901,” Law and History Review 20 (2002): 307–47 and 349–84.CrossRefGoogle Scholar

2. The foundational text for the “modernity” of civil law codes is “Economy and Law (The Sociology of Law)” in Weber, Max, Economy and Society, ed. Roth, Guenther and Wittich, Claus (Berkeley and Los Angeles: University of California Press, 1978), 2: 641–900.Google Scholar While the crude “normativity” posited in this essay does not do justice to the nuance of Weber's application of ideal types to legal systems, interpreters of Weber have often fallen short of his mastery. Even so skilled an interpreter as David Trubek cannot fully avoid the trap of depicting the categories of substantive and formal irrationality and rationality in anything other than value-laden, indeed normative historical stages of progress. See Trubek, David M., “Max Weber on Law and the Rise of Capitalism,” Wisconsin Law Review 1972: 720–53Google Scholar, especially table 1 at 729 and table 2 at 735

3. As Jacobson and Harty both note, the touchstone texts here are two outstanding new-generation legal histories: Whitman, James Q., The Legacy of Roman Law in the German Romantic Era (Princeton: Princeton University Press, 1990)CrossRefGoogle Scholar, and John, Michael, Politics and the Law in Late Nineteenth-Century Germany: The Origin of the Civil Code (Oxford: Clarendon Press, 1989).Google Scholar

4. The most readily accessible version of Savigny's seminal work is Savigny, Frederick Charles von, Of the Vocation of Our Age for Legislation and Jurisprudence, trans. Hayward, Abraham (New York: Arno Press, 1975)Google Scholar, a translation of the second edition of Savigny, Friedrich Karl von, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Heidelberg, 1840).Google Scholar The first edition appeared in 1814.

5. Although this debate dates back to the publication in the late 1980s of the first work of the Working Group on the Comparative Study of Legal Professions, Lawyers in Society, ed. Abel, Richard L. and Lewis, Philip S. C., 3 vols. (Berkeley and Los Angeles: University of California Press, 1988–1989)Google Scholar, the latest salvo can be found in an exchange on the Books-on-Law page at the Jurist web site; see Richard Abel's review of Halliday, Terence C. and Karpik, Lucien, eds., Lawyers and the Rise of Western Political Liberalism: Europe and North America from the Eighteenth to Twentieth Centuries (Oxford: Clarendon Press, 1997)Google Scholar at http://jurist.law.pitt.edu/lawbooks/revnov98.htm#Abel and the reply of Hallliday and Karpik, http://jurist.Iaw.pitt.edu/lawbooks/revapr01.htm#KarpikHalliday.

6. Winkler, Heinrich August, “Vom linken zum rechten Nationalismus: Der deutsche Liberalismus in der Krise von 1878/79,” in idem, Liberalismus und Antiliberalismus (Göttingen: Vandenhoeck and Ruprecht, 1979), 36–51.CrossRefGoogle Scholar

7. I have explicated my own views as to the limits of liberalism generally in Ledford, Kenneth F., From General Estate to Special Interest: German Lawyers 1878–1933 (New York: Cambridge University Press, 1996)CrossRefGoogle Scholar, esp. “Conclusion: Lawyers and the Limits of Liberalism,” 291–99, and idem, “Lawyers and the Limits of Liberalism: The German Bar in the Weimar Republic,” in Lawyers and the Rise of Western Political Liberalism, ed. Halliday and Karpik, 229–64. For a more general explication, see Bellamy, Richard, Liberalism and Modern Society: An Historical Argument (University Park: Pennsylvania State University Press, 1992).Google Scholar

8. For a persuasive recent exposition of precisely this point, see Berman, Harold J. and Reid, Charles J. Jr, “Max Weber as Legal Historian,” in The Cambridge Companion to Max Weber, ed. Turner, Stephen (New York: Cambridge University Press, 2000), 223–39.Google Scholar