Volume 7, Issue 1

Procedural Rationality. Development of Modern Law Beyond Formal Rationalization. The critique of the materialization of law (and this hat to do with the discussion concerning the juridification of social relations) poses the problem how to justify the rationality of a post-material law. A discussion of several sociological approaches to the law shows that they either neutralize the problem of rationality of the law or restrict it – in the tradition of the Weberian sociology of law – to the cognitive aspects of the law. In this paper an attempt is made to analyze the procedural law that is tending to substitute the material law bound to the modern welfare state with respect to its implicit rational aspects. It is claimed that the organizational principle of procedural law consists in involving the participants of the legal process into communicative relationships. These legal relationship have their own specific rationality insofar as they are bound to the logic of argumentation. This specific quality of procedural law allows to reconstruct the (possible) development of late modern law as a process of communicative rationalization. This leads to a plea for further juridification of social relations by procedural law; for procedural law because of its inherent rationality is able to confront the extralegal spheres with the rationalizing effects of collective argumentation. This would be the rational function of the late modern law: to organize law as a rational disputing process, to realize in the law the rationalizing power of argumentative dispute.

The cultural context of mediation. On the state of mediation research in legal anthropology. The literature on legal anthropology dealing with the subject of mediation is examined as to its relevance to an investigation on mediation in terms of conversational analysis. The literature contains findings on the following four aspects of mediation: mediation as one of various techniques of conflict resolution; mediation as a phase in the complex history of a conflict; mediation as a characteristic interactive pattern of conflict resolution; and the dependence of mediation as an effective resolution technique on certain cultural conditions. In conclusion the implication of these findings from legal anthropology for an investigation on mediation in terms of conversational analysis are touched on.

Theories of “reflexive law” suggest that there would be an increasing delegation of substantive jurisdiction under the condition of due process guarantees. The promise of maximizing substantive regulatory autonomy together with procedural safeguards, however, is not fulfilled in the light of the effects of judicial procedures and institutions on the substance of social control patterns: American Indian tribal courts provide an example of such reflexive law colonizing traditional legal cultures by overbureaucratization and overcriminalization. Thus, traditional patterns of land ownership as well as social control are overturned.