BETWEEN HISTORY AND SOCIOLOGY – REMARKS ON DIFFERENCES IN PERCEIVING “LEGAL CULTURE” AS A SUBJECT OF INTEREST BY VARIOUS DISCIPLINES OF JURISPRUDENCE, PARTICULARLY SOCIOLOGY OF LAW AND THE DISCIPLINES OF THE HISTORY OF LAW

Anna Kociołek–Pęksa, Władysław Pęksa

Abstract


One of the “pivotal” terms, showing the diversity of phenomena related to the cultural embedding of law is that of legal culture. It is used to describe the diversity of approaches to law as well as of the opinions on how this term is understood, on the role of social order, the practice of law application. The article deals with differences in the research approaches of various jurisprudential disciplines. Among the many topics covered in the article, the authors emphasize in particular the differences between the concept of “legal culture” in the textbooks of the history of law and social sciences, opposing legal history approach by that of legal sociology or philosophy of law. Striking in the attitude to the history of the numerous concepts of legal culture is the treatment of the historical phenomena not as an objective social, economic, or political reality, but as a certain intellectual construct that aims to “complete and justify the concept”. This is a purely instrumental approach: the possible phenomena from the past serve to strengthen and justify the shape of the contemporary reflection. This applies both to approaches that describe the legal culture as a predominantly historical phenomenon and to those that treat historical description as supplemental reasoning. It is also accompanied by far-reaching “presentism” as an attitude in the study of the phenomena from the past. Consequently, this may lead to a situation that extremely synthetic and abstract judgments relating to the past phenomena as the culture and the society can be misleading in the study and description of the legal culture insofar as one may combine events from the distant past with characteristics which they had not or reconstruct facts that probably did not occur.


Keywords


legal culture, legal sociology, legal philosophy, legal history, jurisprudence methodology I. INTRODUCTION

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