Mapping Legal Consciousness in Comparative Law: An Essay on Methodology
摘要
It is widely believed that the process of law making, from legislation to judicial decision-making and law enforcement, is largely determined by forces that can be traced back to legal consciousness. For example, legal consciousness may influence a judge in her interpretive or adjudicative process, and thus play a causal role in determining the outcome of a case. However, identifying the cultural and sociological features that constitute the legal consciousness of a normative system is one of the greatest challenges in comparative law, regardless of which theory the comparative scholar prefers. This is especially true when legal consciousness is defined as the “awareness” or “perception” of a complex institutional practice. Following the doctrine of legal formants, this paper, first, defines legal consciousness as one of the most important meta-legal formants and, second, develops some methodological insights for isolating common principles of legal consciousness in a legal system. In particular, the authors explore the realist model used by Alf Ross in his works Theorie der Rechtsquellen and Om ret og retfaerdighed, as well as recent work from sociology combined with the Common Core approach. The paper examines inter alia the relationship between legal consciousness and the related concept of opinio juris with an eye toward participant perspective. Finally, recent conceptual strategies for comparing legal systems over time and their limitations are discussed. The overall goal is to contribute to the methodological foundations of comparative law from a realist perspective that favors an empirical approach to the analysis of legal materials.