Modern law as a secularized and global model : Implications for the sociology of law

Abstract

Law and legal forms now flow very rapidly around world society. This is difficult to understand if we take only a realist and bottom-up view of the law: local processes would engender internationalization only out of rather slowly evolving interaction and interdependence. But it is easy to understand if we add a more institutionalist view of the law - and the sovereignty of the modern State, with which it is now linked - as constructed out of a common and universalistic world cultural frame. In this paper, the authors develop such a view and show its implications. Modern legal systems, worldwide, rest on universalistic and rationalistic cultural assumptions about the natural and moral world outside of society. First, sovereignty is a peculiar claim: it is a claim to autonomous decision power, but under exogenous universal principles and addressed to an exogenous and often universal audience. Second, law, with remarkable uniformity, creates States which are defined by and constituted from legally-assumed societies. Emphasizing the dependence of the authority of modern law on universalistic cultural principles transcending specific societies can help explain distinctive features of modern legal systems: (1) the rapid worldwide diffusion of rather standardized legal principles and arrangements; (2) the ritualistic character of the enactment and implementation of modern law; and (3) the widespread and expansive legal assumption of an integrated and rationalized nature and cosmos. To highlight these implications, the authors contrast the law with organizational rule-making at the other end of the spectrum: rule-making which is not very closely tied to universal principles tends to have a very different character.

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