Legal Contexts as Practices

Chapter 10

Legal Contexts as Practices

One widely accepted understanding of the institutional control of law is in terms of its capacity to stabilise and maintain relationships and expectations over time. In this sense, almost paradoxically, it is the dynamic nature of law as a social institution that is being highlighted. On the one hand, as a result of its application over time, and given the unpredictable nature of contingent social life, law is forever being confronted with new problems and new situations that it must constantly respond to. On the other hand, this dynamic nature of law as a responsible and responsive institution stems from the social values that undergird the legal system; thus, changing societal values will result in or be evidence of a restructuring and reorienting of law over a certain period of time.

Every individual judge is appointed to occupy a particular place within this legal institutional setup which, according to constitutional theory, is subject to regulation in two separate but related ways. First, the legislature as a political body sets the norms underlying legal institutional functioning and in this way the legal institution is made to adhere and correspond to the purposes and desires set for it by the body of elected representatives of the people. Second, the executive maintains the legal system to permit it to function within the circumference of the norms set by the legislature and to implement these. In this political conversation over the nature and performance of the judiciary, two different but interrelated sets of judgements are continuously being made: the first concerns the reality of the legal system, its proper purpose and function; the second is more instrumental and concerns its operation. In Parliament, this endless conversation concerning these two judgements takes place all the time under the shadow of an acceptance that the final say will always be with the former. In performing the duties of her office every individual judge, as a member of the judiciary, has in mind this endless political conversation and, to an extent, is constrained by it.

Now since the problems that legislatures deal with are always a problem for someone, then, in responding to a given situation, or the threat of one, we might reasonably assert that politicians, as elected representatives, will generally have in mind questions concerning how these actual or potential situations might be shaped in relation to their own particular purposes or goals. In this way, lawmaking by the legislature may be thought of as a socially grounded method of perception and action, founded in social practice but reflecting particular change-resistant self-understandings. So while, on the one hand, the subjective side of lawmaking may be seen to embrace the idea of creativity and change, on the other hand it exhibits a profound resistance to change due to its inherently self-referential nature. As a result of this contrast, the role of a judge must be understood not only to involve taking account of the reality judgements of lawmakers but also, in view of the endless political conversation referred to above, assisting in the redefining and introducing of new self-understandings through control of data and the way it is interpreted and presented.

Law, as Luhmann (2004) reminds us, is a social system, and social systems are constituted by self-understandings expressed through commonly held and articulated sets of background distinctions. According to Taylor, ‘the language is constitutive of the reality, is essential to its being the kind of reality it is’ (Taylor 1985: 34). In so far as our theoretical frameworks may be said to alter the background distinctions that make up the self-understandings of our social systems, they may also be said to modify the social systems themselves. In other words, there is an internal relationship between the categories of thought that we use to approach reality and the practices that we seek to address and manipulate. In an important sense, our theoretical frameworks, our models and categories of thought help to constitute the world that we then experience. Thus, a social practice, such as the way that fellow judges within a common legal system relate to each other and each other’s decisions, is what it is in and through the main self-understandings that practice embodies; that is, these self-understandings are ‘constitutive of the social matrix in which individuals find themselves and act’ (Taylor 1985: 36). As the former change, so also do the latter. This means that the distinctiveness of a social system originates, at least partly, from the frameworks of understanding and categories of thought that have grown up in particular circumstances over time. But where do these self-understandings come from? How do they develop? What sustains them?

Alasdair MacIntyre’s (1985) concept of a ‘practice’ helps point a way to an answer: