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

74Chapter 2integrative performances of all other institutional orders. As earlyas tribal societies, this kind of self-referential normative structuredeveloped with archaic legal practices, such as arbitration, oracles,and feuds. 49 Law is a legitimate order that has become reflexive withregard to the very process of institutionalization. As such, it formsthe nucleus of a societal community that in turn is the centralstructure of society in general.Parsons pursues the social evolution of law in terms of its ownfunction of securing social solidarity, and not, like Weber, in termsof its functional contribution to the formation and exercise ofpolitical power. In tribal societies law is still interwoven with othernormative complexes and remains diffuse. A partially autonomouslaw develops only with the transition from tribal societies to "civilizations."In this evolutionary step, a form of state organizationdevelops in which law and political power enter into a remarkablesynthesis. On the one hand, the state makes possible the institutionalizationof procedures for legal adjudication and enforcementthat have a prior, superordinate position vis-a-vis the contestingparties; on the other hand, the state first constitutes itself as a legallystructured hierarchy of offices, at the same time legitimating itselfthrough the legal form in which political power is exercised. Statesanctionedlaw and legally exercised political power thus reciprocallyrequire one another. At this evolutionary stage, familiarelements of the legal system can develop for the first time: legalnorms or programs that pertain to possible future cases and safeguardlegal claims ex ante; secondary legal norms that authorize thegeneration and alteration of primary norms of behavior; an administrationof justice that transforms legal claims into possibilities forlawsuits; an execution of the law supporting the threat of sanctions,and so on.Because the specific features of a legal system first appear in statesanctionedlaw, there is a certain plausibility to Weber's theoreticalstrategy of conceiving law as part of the political system. Lessplausible is Luhmann's further step of taking modern law out ofpolitics again and giving it independent status as its own subsystemalongside the administration, economy, family, and the like. Adifferent perspective is taken by Parsons, who like Durkheim seeslegal development as connected with the evolution ofthe "societal