(2012) JLP 66: 1-47




Hubert Treiber




This essay represents an invitation to read once more those writers (Geiger, Popitz, Weber) who have come in for particularly critical attention from adherents of legal pluralism. Insofar I deal first of all here with the relevant works of Heinrich Popitz, before then turning to Max Weber.  A rather more thorough examination of Max Weber seems advisable here, since legal pluralists link his name with the idea that law is linked to the 'sovereign state', while one can also read that as far as theoretical conceptualisation is concerned, “Max Weber is one of the first social scientists in whose thinking something like legal pluralism was possible,” although with the rider added: “whatever one might think of his concept of law”  (F von Benda-Beckmann 1994). An accurate look at the conceptual architectonic of Weber's Basic Sociological Terms shows that Weber did not connect means of coercion and coercive apparatus to the state, but to quite specific structures of societisation (Vergesellschaftung). Strictly speaking it is a matter of “anstaltsmaessige Vergesellschaftung”. The section dealing with Weber closes by introducing some game-theoretic considerations, with the aid of which Sally F. Moore’s conception of the 'semi-autonomous social field' is extended, using this to examine something that Weber himself could not have contemplated, that the law is not strictly ('as if by command') adhered to, but negotiated, as it was even during his lifetime. In conclusion the work of Theodor Geiger and Christian Sigrist are briefly introduced, in particular the manner in which Sigrist, in criticising Geiger’s concept of law, falls into the trap of “nostrification” (Nostrifizierung), i.e. “reading someone else in one’s own terms” (Matthes 1992). Nonetheless, the prime aim is discussion of the concept of law that Franz von Benda-Beckmann developed for comparative usage, since among other things this is associated with the claim that it presents legal pluralism with an instrumentarium suited to the avoidance of the 'trap of nostrification'.