Empiricism, Constructivism, and Grand Theory in Sociological Approaches to Law: The Case of Transnational Private Regulation

Sociological approaches to law in both Germany and the UK have been characterized by internal divisions and divergent methodologies and aspirations. While, in the UK, empirical socio-legal studies have been a prominent way of studying how law shapes and is shaped by social institutions, in Germany, the “grand theory” of system-theoretical approaches to law has had a lasting impact. In this Article, I discuss the epistemological contrast between these two sociological approaches to law by focusing on how they address transnational private regulation. Empirical socio-legal studies share an epistemic commitment to an objective and knowable social reality, and they tend to see human actors as the motors of history. Thus they focus on the inter-relational dynamics within Global Value Chains (GVCs), searching for “what works” in transnational private regulation. On the contrary, systems-theory oriented sociological jurisprudence views social reality as constructed and fragmented into the epistemes of different social systems. GVCs are understood as self-referential normative orders, in which the question of agency and human actors is secondary—the emphasis is on communications and anonymous forces of ordering. Attempting to inspect the possibilities for synthesis, I ask how “big” we can and should think in law and society. I thus attempt to outline an approach that starts from the materiality of social structures to investigate processes beyond individual agency and to uncover elements of normative reconstruction of the particular area of social activity

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