Between Facts and Norms - Contributions to a ... - Blogs Unpad

71The Sociology of Law vs. the Philosophy of justicedifferentiation taking place in substantive areas of law, Weberpursues the rationalization of law from two points of view. He isinterested, on the one hand, in the generalization and systematicrefinement of legal programs, remedies, and procedures; on theother hand, he examines changes in the cognitive validity bases oflaw. Schluchter reconstructs the variation in levels of justificationof legal decisions by following the model of developmental stagesin moral consciousness, a model Lawrence Kohlberg, picking upon Jean Piaget's work, has demonstrated for ontogenesis.44Schluchter summarizes the analysis, carried out from viewpointsimmanent to law, as follows:We proceeded from Weber's distinction between revealed, traditional,deduced or natural and enacted (positive) law, on the one hand, and .between formal and substantive legal rationalization on the other. Ourthesis was that Weber distinguished between the procedural and thesubstantive aspects oflaw and treated the rationalization oflaw from bothviewpoints, although he did not give equal weight to them. Therefore,there must be a rationalization of legal procedure as well as of thefoundation of law; they are historically related, but must be separatedanalytically. Whereas legal procedure becomes more logical, the foundationof law becomes more abstract and universal. At the same time thefoundation of law shifts from principles that transcend law to onesinherent to law; that is, the foundation of law is secularized.45In the present context, I am concerned only with the methodologicalpoint that this kind of sociology of law also depends on ademanding reconstruction of the validity conditions for the "consensuson legality" presupposed in modern legal systems. That is,one can see from this perspective that the positivization oflaw andthe accompanying differentiation between law and morality are theresult of a rationalization process. Although this process destroyedthe metasocial guarantees of the legal order, it by no meansvaporized the noninstrumentalizable quality of the law's claim tolegitimacy. The disenchantment of religious worldviews not onlyhas the destructive consequence of undermining the "two kingdoms"of sacred and secular law, and with this the hierarchicalsubordination to a higher law. It also leads to a reorganization oflegal validity, in that it simultaneously transposes the basic conceptsof morality and law to a postconventional level. With the distinction