Using Weber’s Rechtssoziologie to explain Western punishment

Abstract

An interdisciplinary comparative-historical framework is proposed to map the relationship between legal institutional differences and the use of incarceration. The oft-cited empirical trend that Western countries cluster on an assortment of social, political, and economic outcomes is incorporated with Weberian sociology of law. Incarceration levels vary, in descending order, as a function of the institutional possibilities within the common, Roman, and Nordic law families. A country’s legal origin supports certain legal institutional frameworks and historical trajectories that are consequential for punishment decisions. The historical record of each legal family demonstrates particular types of legal thinking that foster unique institutional frameworks that are more or less likely to support punitive, bureaucratic, or collective crime control mechanisms.