Those Who Made and Developed the RCSL
(Photo copyright: Marlène van den Camp)
“Nobody more than Blankenburg has influenced the empirical-critical sociology of law in the last third of the 20ieth century“. And Röhl adds, as a personal tribute, that “for the coeval from jurisprudence, Erhard Blankenburg remained always the unsurpassable 'true' sociologist of law” (Röhl 2018, my translation).
In the same vein, Lawrence Friedman wrote earlier in 1998, in the context of a Festschrift to Blankenburg's 60ieth birthday: “Blankenburg has given us an important body of work. It is work that is (and should be) extremely influential in the field; and no respectable sociologist of law can afford to ignore it. For this he deserves our thanks and our congratulation” (Friedman 1998, 386).
That may come as a surprise to some observers of the socio-legal scene, since Blankenburg never published a textbook in the field, never held high office in one of the major professional societies, national or international, never was director of the one and only International Institute for the Sociology of Law. He is not even mentioned in the index of major English-language textbooks (e.g. Cotterrell 2003, Deflem 2003, Milovanovic 2003, Trevino 2008). What then is the basis for this high appreciation? To account for it, a number of different achievements and qualities have to be mentioned:
• In his native Germany, he was among those young scholars (like Wolfgang Kaupen and Volkmar Gessner) who managed to revive the sociology of law after the Nazi regime.
• There he coordinated a string of conferences on such important topics as “Legal needs and legal aid” (1978); “Alternative forms of law and alternatives to law” (1979); “Organizational conditions of legislative success” (1981); “Social definition of legal problems through counselling offers” (1982); “Implementation of court decisions” (1987, all in German).
• He had a special interest and gift in reaching out to progressive practitioners, with whom he col¬laborated in ground-breaking projects of Rechtstatsachenforschung (fact research in law in the tradition of Alfred Nussbaum).
• On the evolving international scene, he was from the beginning active in the Research Committee on Sociology of Law, where he represented a younger generation, alongside older figures like Adam Podgorecki, Renato Treves and Jean Carbonnier.
• His linguistic abilities, acquired during his studies in the United States, made him an important actor in what was then called “transatlantic law and society networking” and also led to his becoming a professor for sociology of law at the Vrije Universiteit Amsterdam.
• It is therefore not by chance that he co-ordinated, together with Bill Felstiner, in Amsterdam (1985) the first joint congress of the European RCSL and the American Law and Society Association.
• He was (with André-Jean Arnaud, Vincenzo Ferrari and Volkmar Gessner) among the founders of the International Institute for the Sociology of Law and participated actively in its formative first years by organizing workshops and teaching in the Master Programme.
• He became one of the leading researchers on legal cultures. Starting with highly illuminating comparisons between Germany and The Netherlands, he ended up comparing cultures of the German and the US constitutional courts, i.e. the Bundesverfassungsgericht and the US Supreme Court.
• He never attempted to found a “school”. He preferred to work in changing teams with changing participants, many of them legal practitioners. “Like no other, he was able to organize conferences, win competent speakers and monitor the discussions with authority and at the same time in a casual manner” (Rasehorn  1998, 23, my translation).
Blankenburg stayed away from grand theorizing and preferred the use of empirically grounded middle-range ones. The thinking of major theorists like Luhmann and Teubner was to him anathema. His contribution to sociological thinking about law is contained in a small book called “Mobilisierung des Rechts” (1995), unfortunately never translated into English. There, he distinguishes between the internal (juridical) and the external (sociological) approaches to law. Drawing on Theodor Geiger, he advocates a definition of law that allows for direct observation of its properties and enables strictly empirical research. Law, according to Blankenburg (1995), is a “graduated concept”, a matter of more or less. Sociologists of law are to “use primarily their eyes in order to see how the jurists fix their norms” (ibid). For the rest of this booklet, Blankenburg goes on to exemplify this approach by demonstrating the mobilization of law in different legal fields (from criminal law, private law to constitutional law). At the centre of his empirical studies is the constant search for the social selectivity of the legal processes.
One of his former Dutch collaborators, Pieter Ippel, has searched for the morality in this self-acknowledged empiricism. His conclusion is as follows: “Sociology of law becomes interesting when the cool head is accompanied by the inspiration of the heart. In my opinion Blankenburg wrote many interesting articles and books. This can only be explained by his unacknowledged inspiration and passion of the heart: his loyalty to the real outsiders, those ex¬periencing difficulties with the harsh machinery of the law“ (Ippel 1998, 87).
The ambivalence of his standing in the socio-legal world is aptly mirrored in the brief obituary in the IISL Newsletter, written by its present director: “He was a discreet man, who seemed to distance himself from centre stage. Still, the community of legal scholars was well aware of his scholarly merits and acknowledged them openly on many occasions, among them, symbolically, the Podgórecki Prize he received in 2005 during the RCSL Annual Conference in Paris” (Ferrari 2018).
2 Theo Rasehorn was a German High Court judge, who became a fierce critic of the German judiciary and later turned socio-legal scholar.
Ferrari, Vincenzo (2018), In memoriam Erhard Blankenburg. In: Oñati IISL,
eNewsletter, No. 54 (April 2018)
Johannes Feest feest.johannes(at)gmail.com
(Source: RCSL Newsletter 2018-2)
Additional reference: Ralf Rogowski, "Nachruf auf Erhard Blankenburg (1938-2018)", Zeitschrift für Rechtssoziologie 2018; 38(1), p. 168-172.