SOCIOLOGICAL JURISPRUDENCE – AN OXYMORON

“Network is not a legal concept.” If Richard Buxbaum's apodictic judgment is true, then lawyers have little to say about networks. Should they wish to make appropriate judgments when business networks, franchising arrangements, just-in-time-systems, or virtual enterprises do cross their paths, then they must consult social scientists, such as economists, organizational theorists, and sociologists. For better or for worse, they must engage in law, in action, and in sociological jurisprudence.

Lawrence Friedman would agree with such a realistic approach. Already in his first major monograph on contract law, he explored the law in action rather than the law in the books. In his later works he demonstrated the responsiveness of the legal order to the manifold forces of economic, technological, and social change. From Friedman's perspective, the legal system functions largely as a dependent variable, with lawmakers responding to underlying developments in science, medicine, technology, economic organization, and shifting moral beliefs. In his recent book, American Law in the Twentieth Century, he states his case quite clearly: “The main theme of this book is that law is a product of society.”

Yet, “sociological jurisprudence” is a pipe dream. After a heated debate for almost a century, lawyers know that, logically speaking, it is an oxymoron – like a white raven. Practically speaking, it necessarily falters in the face of the normative closure of the legal system.