Contemporary Social-Legal Theory as a Critique of Legal Positivism

Damir Banović, University of Sarajevo and CSLS Visitor

Beside Natural law theories and Legal Positivism, one of the views on law, which still has not become a separate discipline, but is more than present in the study of the phenomenon of law, is the Social-Legal Theory. When talking about the Social-Legal theory, we cannot label it as theory of law, which has its clearly defined notions on what law is. I primarily think of an attitude towards observing and studying the phenomenon of law. This attitude is about social perspective or orientation towards law or, as it is widely accepted in the understanding of this discipline, about the fundamental assumption on the social nature of law.

Legal Realists and Sociological Jurisprudence, as disciplines of the Social-Legal Theory inherit a less formal approach to law, and understand law in context. This idea has been understood dually: (1) should legal questions be based on moral and political philosophy (critic from the outside) or (2) should law be returned into a social context and connected with social sciences in a scientific manner (critic from the inside). Critical legal studies, which have embraced first idea, are based on the notion that law is neither rational nor coherent and just, but is, in reality, arbitrary, incoherent and substantially unjust. Critical studies are based on the idea that behind the facade of neutrality, law serves and imposes the hierarchy of power regardless of it being economic, gender based or racial. Further more, legal positivism has been criticized on other various grounds. Internally, the positive law methodological approach has its difficulties in explaining the normativity of international public law and rules and norms of culturally specific groups; methodological problems in separating validity and efficiency; legal principles and legal norms as an open text which do not lead to the one possible logical solution etc. Social-Legal Theory has been criticizing legal positivism both internally and externally, and if understood constructively, it can help legal positivism to improve its concepts and methodology.

Damir Banović (LL.M), a senior teaching assistant at the Law Faculty (University of Sarajevo) at the Department of Theory of State and Law. He is a member of the European Commission on Sexual Orientation Law (ECSOL), scientific network Verfassungspolitik in Mitel- und Osteueropas (Humboldt Universität in Berlin) and enrolled in a two-years scientific project Human Dignity in Europe (Universität in Luzern). Also, he is an associate member of the Serbian Association of Legal and Social Philosophy (IVR Serbia).