Social theory of law is a reaction to legal positivism. Social theory of law is an interdisciplinary field that examines the relationship between law and society. It combines insights from legal philosophy and sociological theory but is distinct from both, making it a unique area of study within socio-legal research. Unlike purely normative or empirical approaches, it integrates theoretical perspectives from multiple disciplines and also seeks to establish its own identity. The field includes both middle-range theories, such as dispute resolution, and broader theories addressing the role and foundations of law in society, including legal positivism, legal pluralism, and legal autopoiesis. Its origins can be traced to classical sociology and early sociology of law, particularly the work of Max Weber, whose ideas were strongly influenced by Neo-Kantian philosophy.

Max Weber argues that there are two basic types of normative order in a society - law and moral conventions (ethics). The law achieves the maintenance of the moral order by creating a special group of people who must enforce laws and sanction those who violate them. Moral conventions, on the other hand, are enforced diffusely because the whole society acts in such a way as to sanction those who violate moral rules. Weber points out three aspects of modern law: (1) law has coercive character; (2) law follows formal logical rationality; and (3) law serves as the basis of the legitimation of power. He stresses that there are only three legitimate forms of authority: legal-rational, traditional, and charismatic. The difference between these three types of authority is in how authority is justified, but also in how the administrative apparatus of society is organized. Legal-rational authority is historically a product of Western culture. It is characterized by the application of impersonal laws through official state bodies. The administrative apparatus is hierarchically and bureaucratically organized. All persons are subject to the same laws, including those performing the most important functions. In addition, there is a separation of official duty from the private life of those in administrative positions, as well as the separation of public property from personal property.

Neo-Kantianism also influenced Eugen Ehrlich, who is widely considered one of the founders of the modern field of the sociology of law. Ehrlich challenged the hierarchical concept of law advanced by theorists such as Hans Kelsen. Ehrlich argued against the legal theories of legal positivism, as they define law solely as a collection of statutes and court rulings, so they fail to capture the full legal reality of a society. His approach to the sociology of law was partly influenced by the “free law” or “sense-of-justice” doctrine developed in Germany by Hermann Kantorowicz. Ehrlich identified two main and complementary sources of law. The first consists of legal history and jurisprudence—precedents and their written interpretations that guide legal reasoning. The second is what he called “living law,” meaning the norms and rules that emerge from everyday social practices and customs within a community. Ehrlich presented these ideas most fully in his major work, Fundamental Principles of the Sociology of Law (1913). In this study, he examined legal systems across different countries and concluded that the development of law is driven less by legislation or legal scholarship than by broader social changes occurring within society itself.

Ferdinand Tönnies argues that there are three main types of norms: 1) order (created based on general consent or convention); 2) law - enforced by courts, and may be based on customs or legislation; 3) morality - a set of norms that act as if they are applied by an imaginary judge (some higher power or conscience) and derive from religion or public opinion. Law, which arises through a truly democratic process, must be based on public opinion. George Simmel states that there are various forms by which unity is achieved around values and goals: law achieves external goals by external means; morality achieves internal goals by internal means; honor achieves external goals by internal means. The law regulates the narrowest part of common values, while morality is the most comprehensive.

                  Durkhemian Sociology of Law

Durkheim argues that in a society of organic solidarity, the legal system is focused on contract law and the restitutive sanction. Durkheim stresses the institutional embeddedness of law, as it is based on wider social values.

Georges Davy contributed to the areas of sociology of law, especially contracts and social obligations. Influenced by Durkheim’s emphasis on collective life, he explored how social bonds are maintained not only through formal agreements but also through shared moral expectations. His research often focused on the idea that contracts are not purely individual or economic arrangements; rather, they are rooted in broader social norms and collective values that give them meaning and force. One of his most important contributions is his analysis of the relationship between individual freedom and social constraint. Davy argued that modern societies, while emphasizing individual rights, still depend on underlying systems of obligation that bind people together. In this sense, he extended Durkheim’s concern with social solidarity, showing how even seemingly voluntary interactions are shaped by collective pressures and ethical frameworks. Davy was also engaged in the study of legal and moral institutions, examining how they evolve over time and reflect the needs of society. His work helped bridge sociology and legal theory, highlighting the importance of understanding law not just as a set of rules, but as a social phenomenon embedded in culture and history.

Lévy-Bruhl helped establish the sociology of law as an independent subdiscipline. In his research, he examined the nature of law, the methodology of legal studies, crime, abuse of power, and judicial decision-making. His view of the law was influenced by the theories of Émile Durkheim. This influence can be seen in Lévy-Bruhl’s view of the nature of the law. According to him, law was a “social fact”; hence, it was a deterministic relation with other social facts, and could be studied objectively and scientifically. He named the science of the law “juristic” science. The methodology of this science, according to Lévy-Bruhl, should use observation, surveys, comparisons, and interpretation.

        Marxist and Anarchist Conception of Law

Karl Marx argued that the capitalist class monopolizes political power and creates laws that protect its (capitalist) property, as well as its class interests, and thus dominates the working class. In this sense, the entire capitalist state and its institutions are only a reflection of the interests of the ruling capitalist class.

Kropotkin, an anarchist, believed that one of the main instrument that states used to subjugate society were laws, which always function only in the interest of the privileged classes. Customs and taboos that regulated relations in traditional societies have been replaced by laws in states. There are three types of laws: 1) laws that protect property - they serve to appropriate the products of workers and regulate relations between capitalists, 2) laws that protect the government - this category consists of constitutions and similar laws that establish administrative mechanisms of government to protect the interests of ruling classes, 3) laws that protect people - they are the most important because they serve to protect the security of the ruling classes. Kropotkin believes that most criminal acts are the product of those very laws and the authority behind them. Prisons are the worst product of government and law, because they not only do not reduce crime, but also serve to destroy the will of individuals, and it is not possible to improve them. He believes that the abolition of all types of laws, as well as prisons, will eliminate the causes of criminal acts. People who continue to behave anti-socially will be exposed to public pressure, so they will be forced, but also supported by society, to reform their behavior.

Kropotkin advocated that people, on their own, should determine the rules that everyone will respect together. Adherence to these rules will be ensured via censorship and solidarity, not laws and penalties. Kropotkin believed that a society free from the political domination and economic exploitation would be a truly free society guided by innate instincts of compassion, cooperation, and mutual assistance.       

   Later Developments in the Sociology of Law

Georges Gurvitch, with the books Elements of Sociology of Law (1940) and Sociology of Law (1942), greatly influenced the sociology of law. He argues that the dialectic exists in the relationship between law, democracy, and morality. Law serves to generalize the irrational qualities of morality, transforming the individual and the qualitative into the general and the quantitative. The law acts as a link and synthesis between moral ideal and empirical reality. In that sense, the law is immanently dialectical, because it represents a link and a field of the intertwining of empiricism and moral ideal, and a synthesis of personalism and interpesonalism. 

Niklas Luhmann applied functionalism to the study of law in his books Function and Formal Organization (1964), System Theory: Purposefulness and Rationality (1968b), and A Sociological Theory of Law (1972). According to Luhmann, legal positivism is an effective theory of legal reflection because it recognizes the legal system's need for self-justification and its operational independence from its social environment. Building on this idea, Luhmann developed his systems theory of law in three stages. First, he viewed law as a mechanism for stabilizing social expectations, arguing that its primary function is to ensure the consistent generalization of normative expectations across different dimensions of meaning. Second, he defined law as a self-referential system of communication capable of reproducing itself through legal communications, a process he described as legal autopoiesis. Finally, Luhmann examined law within the context of an increasingly interconnected world society, where he argued that a distinct system of world law gradually emerges.

In The Organizational Weapon (1952), Leadership in Organization (1957), and Law, Society and Industrial Justice (1980), Peter Selznick addresses the issue of legality as an incompletely institutionalized ideal designed to limit arbitrariness. He describes legality as a practical norm that can be realized to different degrees. According to Selznick, when a part of the law falls short of certain ideal standards, it may be considered deficient in legality, but it nevertheless remains part of the legal system.

John Rawls is most famous for his very influential book A Theory of Justice (1971). In A Theory of Justice Rawls takes inspiration from the political philosophers of the social contract tradition, especially Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and Immanuel Kant, in order to develop his political philosophy. Like the philosophers mentioned above, Rawls wanted to paint a picture of the best society for all people.  The goal is to create norms for the distribution of “primary goods” – rights, liberties, political and legal institutions, and wealth – that are created by social cooperation.  Rawls argues that the only rational solution for the framing of the basic structure that incorporates the conception of justice is the one based on two principles – the “principle of liberty” and “principle of difference”. The principle of liberty states that everybody has the most extensive basic liberties, insofar as they don’t restrict similar liberties of others. The principle of difference states that social and economic inequalities are permitted only to the extent that they are based on individual contributions that benefit all, in the conditions of equal opportunity for all to access every position or function in a society; otherwise, the system should redistribute primary goods in a way that would give the most benefits to the people with the least advantages. This system would guarantee the best outcomes (maximization of primary goods) for the ones who are in the worst position. Similarly, equality of opportunity goes beyond legal equality and necessitates equal access to education, training, and other resources. Rawls sees his approach to justice as “justice as fairness”, that is, the one that would lead to a true meritocracy.

In The Concept of Law ([1961] 1994), H. L. A. Hart identifies five essential features that characterize a legal system. First, legal systems contain rules that require certain actions and prohibit others. For example, laws may require drivers to wear seatbelts or prohibit driving above a specified speed limit. Individuals who violate these rules may be subject to prescribed legal penalties. Second, legal systems include rules that oblige individuals to compensate others for harm they have caused. Third, they provide rules that enable people to establish legally recognized relationships and arrangements, such as marriage or contractual agreements. Fourth, legal systems establish courts and other judicial institutions responsible for determining whether laws have been violated and for imposing appropriate remedies or sanctions. Finally, they include rules governing the creation, amendment, and repeal of laws. Together, these features demonstrate that legal systems are institutional frameworks through which laws are created, interpreted, and enforced within a political community.

By applying abstract systems theory to legal analysis, Gunther Teubner (1993) developed a social theory of law known as reflexive law. His work explores topics such as legal epistemology, the process of juridification in different social spheres, and the evolution of law from an evolutionary perspective. Teubner is particularly recognized for his contributions to the study of legal regulation, self-regulation, and regulatory failure. He also examined innovative legal structures that combine elements of contracts and organizations to create networks, including joint ventures, corporate groups, and franchises. These legal hybrids are analyzed from both jurisprudential and doctrinal perspectives.

Another influential normative social theory of law is Jürgen Habermas’s (1996) discourse theory of law. Habermas sought to provide a normative and ethical foundation for modern legal systems by emphasizing the importance of legitimacy. He argued that the validity of modern law depends on the possibility of rational public discourse through which legal claims can be debated and justified. His theory initially formed part of his broader theory of communicative action, which distinguishes between law as a medium of social coordination and law as a social institution. In Between Facts and Norms (1996), Habermas expanded this framework to examine constitutional democracy, the welfare state, the rule of law, and the role of civil society. A central feature of his theory is the distinction between facticity (the social reality of law) and normativity (its claim to legitimacy), which he viewed as the defining tension within modern legal systems.

    How Class and Race Relations Influence Law

Troy Duster, in The Legislation of Morality: Drugs, Crime, and Law (1970), showed that changes in the demographics of opiate addicts brought about changes in law and its definitions. Earlier, when most addicts were white, middle-class, middle-aged women, addiction was treated as a private health issue. In contrast, later, when addiction became prevalent among minority poor young men, the problem of drug abuse became a huge public threat and a crime punishable with long prison sentences.

William Chambliss approached criminology from a conflict perspective, rejecting the functionalist view. His early work, “A Sociological Analysis of the Law of Vagrancy” (1974), was heavily influenced by Marxist ideas. In it, he examined how, between the 14th and 16th centuries in England, many peasants were dispossessed of their land and became vagrants. Legal measures not only legitimized this dispossession but also served elite interests by transforming these individuals into a cheap, highly controlled labor force. The class-based nature of law is further explored in “Law, Order, and Power” (1971, co-authored with Robert Seidman), where Chambliss argues that class interests shape not only legal rules but also the operation of the entire criminal justice system.

In his article “Towards a Political Economy of Crime” (1975), Chambliss identifies two key mechanisms of capitalist production: generating demand for unnecessary goods and maintaining a “reserve army” of unemployed workers. He presents criminal law as inherently class-based and argues that crime serves several social functions: it reduces excess labor (by incarcerating some individuals and employing others in control institutions), diverts the lower classes’ attention from their exploitation, and persists because it benefits those whose interests depend on its existence.

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