Law That Does Not Fit Society: Sentencing Guidelines as a Neoclassical Reaction to the Dilemmas of Substantivized Law

Abstract

Chances of realizing a legal rationality that does not fit society are limited. Referring to weber's "Sociology of Law," to related themes in the sociology of polity, organizations, and occupations, and to recent debates on technocratization, juridification, delegalization, and responsive law, this article presents a theoretical discussion of this thesis. An empirical case, using the neoclassical concept of sentencing guidelines, exemplified by the federal and Minnesota cases, supports the argument. The neoclassical movement, aiming to reverse the substantivation of law and to correct lack of due process, functional failures, disparities, and discrimination, faces considerable impediments and may result in counterproductive effects. The article demostrates that (1) societal conditions that caused substantivation hamper reformalization in the political process; organizational and occupational consequences of substantivation also impede (2) political and (3) implementation chances of neoclassical instruments; and (4) impediments to reformalization derive from the method of central guidance used to reestablish sociologically formal rationality.