Band 35, Heft 2

When addressing the law, sociology must assure itself of its subject. It transpires, however, that law tends to elude sociological analysis and, above all, is always inspired by something other than itself The notion of the “force of law” epitomizes a figure of thought capable of capturing two different moments: “force that is somehow external to the law, but which sets it in motion and brings it into force, and something that is inherent within the law and also constitutive of law. Forces that initially operate non-linguistically are indeed capable of writing law. The article explores the methodical and theoretical implications of a notion of law that proves perhaps to be more fragile, instable and yet more poweful than commonly thought.

Michel Foucault has never offered a discourse analysis of law. Therefore we have to question the possibility of applying his methodological tools of discourse analysis to law as its object of inquiry. Problems will occur on a methodological level: Foucault developed his tools by investigating discourses on truth (I.). In opposition to that, normativity is one of the key features of modem legal discourse - a factor that directly affects the mechanisms of discourse. Therefore, to focus on dis­courses on truth might carry the danger of losing touch with the object they are claiming to consider, the internal logic of law. By closely reading the study L’Etat Providence by François Ewald, a disciple of Foucault, I will show how the truth-centered analysis of legal discourse leads to a problematic prefiguration of law (II.). In order to avoid such problems and to open discourse analyses for the study of law, I will propose time methodological shifts (III.).

This article elaborates a method, trans-sequential analysis (TSA), in the context of institutionalised legal procedures. TSA is an attempt to reconstruct self-contained situated episodes and horn they are linked in accumulative pro­cesses. In this way, it reveals the specificity of how procedures unfold and achieve societal relevance. The article provides (1) the methodical sequence of TSA and (2) its analytical vocabulary, which is then (3) contrasted with other appro­aches to legal praxis. TSA focuses on participants’ discursive work, their infrastructure and the subject-matter of their ef­forts. It analyses the practical challenges involved in discourse participation, thereby establishing a grounded understanding of the power and effects of procedure.

This article proposes the combination of ethnomethodological “membership categorization analysis” (MCA) with a transsequential approach as a method for socio-legal research. This combination is illustrated by a case study: a civil claim for compensation brought by victims of a German-led military airstrike in Kunduz, Afghanistan. The analysis concep­tualizes the category “civilians” as a category in the court proceedings and follows the categorization work across the procedural event. It also focuses on a special feature of the case: the contested import of events external to the procedure.

The polity debate whether or not public creditors in insolvency proceedings should be privileged continues to take place under the guiding principle of equal treatment for all creditors, known as par condicio creditorum. Recently, how­ever, this principle has been increasingly relegated in that debate to an inferior and subsidiary rule concerning simply the distribution of the estate, considered irrelevant especially when contesting transactions made prior to the opening of insolvency proceedings. Instead constitutional principles and rule of law considerations are advanced to argue for the privileging of certain creditors. Building on earlier doctrinal analysis, this article uses a systems theory approach to develop the principle of par condicio creditorum and its relationship to the constitutional rule of equality before the law. It will thus be shown that when insolvency law reconstructs social reality, it must adopt the levels of abstraction prevailing in this reality. As a consequence, no group of creditors may be privileged. This systems theory approach allows weight to be given to the principle of equal treatment of creditors before the law and helps explain why German law and certain other legal systems permit a seemingly contradictory approach privileging debtors who are natural persons. The analysis and conclusion here provide a good example of how sociological theory can be used in legal doctrine to answer specific doctrinal questions.