The history of the ‘disembedding’ process
Pre-modern existing norms were embedded within existing contexts of time and place. First, there were real customary norms; these were unwritten and embedded in specific times and places.
Second, there was customary law, which consisted of written customary norms. Writing them down made them lose their original character. It alienated them from the original volksgeist, as argued by Von Savigny (Savigny [1831] through Cotterrell [1992]; for this point, see also Oomen [2005]). Thus customary law, in the form of written custom, was disembedded temporally but not locally. It was still the custom of one place but became fixed over time. Third, there existed local laws and regulations as a collection of custom and customary laws. These were more abstract and had a larger scope of application in, e.g., city-states or pre-modern kingdoms. Such local laws were less temporally and locally embedded than custom or customary law. Still, their scope of application was mostly limited, so there were different local laws for different locations.The first step towards modern disembedded law involved separating customary law and custom, disembedding law from time. This often preceded the process of modernity.
The next step involved unifying customary law, other local, written laws, and normative systems in a legal code. By transforming written local and customary law into a written code that applied to multiple, local customary legal systems, the law became dislocated from local realities. Modern law came to operate on a much larger scale than pre-modern customary law or local law. At first, its scope was the nation-state. But modern law, in the form of international law, increasingly moved beyond state territories towards a regional or global scope. Achieving a consensus involved increasingly complex and conflicting local political goals and challenges.
The third step was the advent of regulatory law and top-down lawmaking, which completely severed the age-old ties between the state legal system and society. Law became an instrument of policymakers instead of a reflection oflocal norms. In developing countries, the process of legal modernisation was mostly imported through legal transplants (Watson 1993; Nelken 2001).
In many developing nations, legal transplants originally took place under the influence ofcolonialism. Through the process ofnation-building and modernisation, developing nations later voluntarily imported laws and legal institutions or were obliged to do so as a condition for receiving development funding. Legal transplants shared the characteristics of codification and perhaps even more, of regulation, not being embedded locally or temporally. Similarly to modern codification and regulation, legal transplantation aided the process of modernisation by providing a system of large-scale trust. This system was recognised within the nation-state and used by many states worldwide. This, combined with the development of international law, caused a globalisation of law, serving as a global non-embedded system of trust.
Modern (codified, regulatory, or transplanted) state law became its own sphere, largely isolated from society. This was justified and aided by the development of legal positivism and pure legal science, both central to modern and contemporary legal thinking (Cotterrell 1992). The rapid development and impact of legal positivism provided a framework for understanding the law that was no longer embedded in a specific time or place. The concept of law was no longer dependent on locally embedded values of justice, as it had been in the natural law philosophy. Legal positivism provided a value-free, and thus locally and temporally disembedded, conception of the law. Law was what the sovereign said it was (Austin [1832] 1995). Or, more influential until this day, law consisted of legal obligation rules made according to rules of recognition (Hart 1961). Legal science was highly influenced by legal positivism, as it developed a value-free method of analysing the law by an inner logic distanced from local and temporal social realities. This was perhaps best represented in the common law world by Langdell’s case law method (Nader 2002) and in the civil law legal systems by Kelsen’s theory of pure legal science (Kelsen [1945] 1960, as summarised by Cotterrell 1992 and Harris 1997). As a result of these developments, legal science moved away from society. This led to reactionary movements, such as the legal realists and various law and society groups. However, all in all, legal science remains dominated by legal positivism. Socio-legal studies have had a relatively small impact on mainstream legal thinking and reasoning, as well as on legal practice (Tamanaha 1997).