Sociology of Law, Lund University, Lund, Sweden
The aim of this chapter is twofold. First, it examines the relationship between norms and normativity arguing that normativity is generated by the system as well as the lifeworld, and it is not necessarily reducible to the effects or functions of individual norms. Second, it challenges the assumption that legal sociology should apply itself to the external or factual properties of the law and leave the internal and normative aspects of legal phenomena to doctrinal scholars and moral philosophers. It argues further that legal sociology explores the normative contexts of the law and other social systems, but being restricted by its ‘scientific’ mode of expression it describes and analyses them in sociological rather than in moral terms. Legal sociology is, and should be seen as, a different language game to moral and legal philosophy, and its treatment of normativity should be understood on its own terms.
This chapter is an extensively revised version of ‘Can Legal Sociology Account for the Normativity of Law’. In: Baier M (ed) (2013) Social and Legal Norms. Farnham: Ashgate, pp. 15–38.
1.1 Internal and External Aspects of Norms
Looking at the works of the founders of legal sociology, such as Eugen Ehrlich (2002) and Emile Durkheim, we note that norms have played an important role in socio-legal theorising and research. Norms have been used to address the materiality of the law (i.e. its institutional facts and practices) as well as its ideal dimensions (i.e. its values, autonomy, legitimacy and authority). Legal theory too has had a deep-seated interest in the study of norms (see, for example, Kelsen 1967, 2002), albeit an interest which is more concerned with the ought dimension of norms than with their observable behavioural manifestations. These two aspects of norms—‘ought’ versus ‘behavioural regularities’—are interrelated and are discussed by Hart (1998) as the internal and external perspectives on social rules. I shall use Hart’s internal/external distinction liberally to discuss different manifestations of ‘social norms’, which may be regarded as a category broader than ‘social rules’. The discussion which follows is otherwise more in line with the distinction made between descriptive and injunctive norms by Kallgren et al. (2000: 2002; also see Elek et al. 2006) in Chap. 9.
The external or descriptive aspect of a norm is revealed through tangible and observable behaviour and can be studied by employing empirical methods. There are also certain norms which are primarily descriptive, i.e. people follow them more or less unreflectively, or habitually, doing what is commonly done. Their habitual actions constitute a significant part of the lifeworld, i.e. the part that brings a perceptible sense of continuity and solidity to our everyday experiences and lays the foundation for institutionalising certain activities (cf. Berger and Luckmann 1987, pp. 70–73). By contrast, the internal aspect of norms can require the social actor’s reflexivity. The fact that the subject has an understanding of the internal view point of a norm does not imply that he/she will necessary follow it. Nevertheless, his/her refusal, as well as acceptance, involves reflexivity. There are also certain norms which are primarily evaluative—we called them ‘injunctive norms’ in Chap. 9—underscoring what ‘ought’ to be done rather than highlighting what ‘is’ done. The subject’s reflective commitment to the norm’s underpinning reason or value, to what should be done and to what is commonly approved, varies significantly depending on the social setting where decisions are made and actions are taken. In traditional settings, customs and rituals—which are often based on one religion, one collective memory and one set of cultural codes—dominate all social activities by exerting a binding force on behaviour. Rituals eliminate alternative courses of action and their authoritative force constrains the subject’s reflexivity by not leaving much space to employ values to make judgements or to choose between various courses of action. Under traditional conditions, the moral content of most norms are not necessarily spelt out, even though, as Giddens (1994, p. 65) points out, ‘they are interpreted within the activities or directives of guardians’. Otherwise these norms are followed habitually.
By turning to the past in order to create the present and the future, tradition brings a measure of continuity and ontological security to human affairs and the everyday experience of reality. In traditional settings, we often find one primary way of defining institutions, relationships and identities. Using the institution of family as an example, we can say that in a traditional society, there is one primary way of building a family, which is dictated by a relatively fixed authority structure and a division of labour along the gender line. In contrast, modern settings bring an end to traditional forms of organisation by allowing alternative modes of action and by heightening the social actors’ awareness of different ways of defining the same relationships. Using the same example, a modern family unit does not necessarily consist of a married heterosexual couple, who are committed to a lifelong relationship and who define their union in terms of procreation. There are also continuities in how family has developed over time. In both traditional and modern settings, family remains an important site for primary socialisation and for economic and emotional security. Under late modernity, actors are continuously faced with a plurality of choices and possibilities of acting differently. Same-sex marriages, single-parent families and family units which no longer define their function in terms of procreation provide alternative ways of forming a family. Late modern families neither reproduce the authority structures of traditional families, nor foster lifelong associations.1 Whereas under traditional conditions, we were confronted with one primary way of building a family, under late modernity, we are confronted with an open-ended situation where we need to exercise our values to make conscious choices. The normative openness, which creates behavioural unpredictability and ontological uncertainty, is not limited to the sphere of family and can be extended to describe recent developments in other areas, ranging from the labour market to public administration, education, religion and the legal system. One of the problems raised in this book concerns the way late modern conditions, which are characterised by cultural hybridity and pluralism, influence the actor’s commitment to the internal aspect of norms. In short, how and why would a social actor subscribe to a particular social norm and way of doing things when he/she is constantly confronted with equally viable alternative courses of action? What is the role of law in this context? Is the law part of the shifting landscape of late modernity or is it independent of ‘the river of flux’ and capable of reshaping the flow of the constantly changing social life? And if so, where does law’s normativity come from?
The internal dimension of norms is intangible and as such does not have a directly observable expression that may be studied using empirical methods of investigation. It does, however, possess a cognitive element that requires thought processes and confrontation with ‘facts’ which are external to the subject’s cognition. One can form a general idea about the evaluative aspect of norms by studying the perceptions (attitudes, opinions and beliefs) of various groups, but social scientists are aware of the limitations of this method, as attitudes and perceptions do not necessarily translate into action.2 The internal aspects of norms lose their force rapidly as the intersubjective values and the relationships, structures and institutions which produce and reproduce them over time are undermined by the socio-cultural consequences of globalisation and the actor’s enhanced reflexivity. Globalised spheres of action (the cyberspace being one of the more important ones) consist of multiplicity of cultural codes, overlapping transitory social networks and temporary social contexts, where knowledge is fragmented, action is ahistorical and power is decentred. In cyberspace, we find no single source of authority capable of generating intersubjectivity or enforcing socio-cultural rules and regulation in the traditional sense of the word.
We shall discuss the methodological limitations of social sciences in respect to the study of normativity, law and justice in Sect. 3, but before that we need to take a closer look at law’s normativity and consider the extent to which it is linked to norms which constitute the context of social action.
1.2 Normativity Beyond Social Norms?
‘Normativity’ is used when exploring why, under certain circumstances, we feel obliged to act in specific ways (for a recent contribution to the debate on normativity see Raz 2011; Turner 2010; Wedgewood 2007; Delacroix 2006). In non-traditional contexts where there are several alternative ways of doing things, the notion of an ‘obligation to act in a particular way’ requires conscious commitment to a norm and is thus linked to the internal (non-empirical) aspect of the norm. The normative efficacy of a norm can be explained in turn by reference to the authority of the source of the norm (who said that we should act in a particular way) and/or the social functions thereof (we might follow a rule because it fulfils certain social functions or upholds certain values such as justice, equality or fairness). In other words, norms in general, but the internal aspects of norms in particular, provide reasons to act in particular ways.3 The reason itself (that I, for example, support a local charity foundation because I would like to make a contribution to the community where I live, or I follow certain traffic rules because I care about other people’s safety) is articulated consciously, while its underpinning values (why I should care about my community or the safety of other people) can be intersubjective, taken for granted and rooted in the culture or customs of a group of people. Under late modern conditions, aspects of the underpinning values that generate a commitment to the internal aspects of norms can be weakened by the experience of belonging to several communities, which might propagate conflicting values at the same time, by the realisation that one does not belong to a community as such, or that one’s community no longer exerts a cohesive moral force. Late modern communities are thus temporary networks of interests and activities, which do not require ethical commitments from their members (cf. Bauman 2001, p. 71: Banakar and Lort Phillips 2014). I must hasten to add that not all communities lose their moral force under late modernity. In fact some communities, those which congregate around religious beliefs and traditions, tend to show remarkable resilience in the face of globalisation.
Limiting our discussion to the normativity of law and its implications for legal sociology, we are led to ask one of legal philosophy’s classical questions: Why does law provide the majority of the people with a reason for action? Moreover, why do some people comply with the letter of the law, even when there is no threat of sanction against their non-compliance and even though they know that following the law is not in their self-interest and will cost them in material and other terms?4 The answer to this question takes us to the heart of law’s normativity. For natural lawyers, such as Cicero, the normative force of law resided in some form of ‘higher law’, while for legal positivists, such as Austin (1995), it was to be found in the intimate relationship between legal norms and coercion. Subsequent legal positivists, such as H.L.A. Hart,5 Kelsen (2002) and Raz (1979), have questioned the centrality of coercion in upholding the normative force of law and maintained that coercion was neither an essential part of what constituted all the aspects of the law nor an indispensable requirement for what it did. Some laws are brought about to empower and facilitate social action, rather than coercing people into acting in particular ways.
From a sociological standpoint, people comply with the law for a number of empirically ascertainable reasons not necessarily related to the threat of violence or whether the law is morally justifiable. Following Max Weber’s forms of action (1978), we can say that one might follow a legal norm as a force of habit or a custom (i.e. Weber’s ‘traditional action’, which we described above as descriptive norms). Alternatively, one might abide by the law for emotive reasons (i.e. Weber’s ‘affective action’). Then again, one might believe that the law represents foundational values, such as rights and justice (this would correspond with Weber’s value rational action), or follow the law because of the way it was enacted, i.e. because of its authoritative source. Finally, one’s fidelity to law might be motivated by purposive rationality, the belief that it accomplishes certain tasks which are required for an efficient governance of society. These ideal types of reason for action suggest that normativity can emerge out of system imperatives (purposive or instrumental rationality) as well as the lifeworld (value rationality). Moreover, normativity can be the source, rather than the effect, of norms. Thus, system imperatives exert a normative force by urging and guiding action at the societal (macro) and institutional levels. Norms then become labels we use to refer to the normativity generated by system imperatives, which in turn can provide reasons for action but not a sense of obligation. The sense of obligation, i.e. the feeling that one is morally obliged to act in particular ways, emerges instead out of the lifeworld, i.e. the sphere of spontaneously generated values and worldviews which are taken for granted by social actors and out of which the ‘system’ is born (cf. Habermas 1984). In that sense, lifeworld (and not system) provides values which underpin the internal aspect of norms. This means that normativity not only can have other sources beyond social norms, but also that per se it can be a source of norms. In other words, system imperatives on the one hand and the lifeworld on the other guide conduct, giving rise to repeated patterns of behaviour which are identified as social norms. These norms are not the cause of normativity, but equally they are not mere labels either, for they feed back into the system and lifeworld, thus strengthening systematic imperatives and community values, respectively. We should bear in mind that normativity generated by social systems is based on a different type of rationality than normativity emanating from the lifeworld. These two types of normativity, following Habermas (1975, 1984), correspond with two types of integration, namely system and socio-cultural integration (also see Banakar 2003, pp. 291–292).
Descriptive norms emanating from habitual conduct, as well as injunctive norms expressing behavioural regularities motivated by value rationality and ethical commitment, will continue to define certain walks of life, which have retained their solidity even under late modernity and explain why certain people continue to obey the law in situations where there is contextual continuity. Habits and value rational action will increasingly lose their grip over other areas, which are exposed to rapid social changes and cultural hybridity brought on by the consequences of globalisation and the spread information technology. What distinguishes late modern era from early modernity in this context is that the constantly shifting normative landscape generated by what Archer (2012, pp. 5–6) has conceptualised as ‘morphogenetic’ social mechanisms, i.e. processes that ‘tend to elaborate or change system’s given form, structure or state,’ gradually predominate over solid, or ‘morphostatic’ mechanisms that ensure a degree of contextual continuity and normative certitude.6 According to Archer, the emerging morphogenesis slowly undermines habitual action and subverts the normative force of habitus, while at the same time enhancing the actor’s reflexivity. Viewed in a negative light, the actor is forced to determine how he/she must behave in a growing number of situations where habitual action was previously a reliable guideline. Seen positively, the actor is given the opportunity to define the situation one finds himself/herself in.
1.3 What Is Unique About the Law?
One of the functions of modern law may be described in terms of its ability to mediate between the two types of normativities generated by the system and lifeworld. However, law being a social system or institution, is not an empty vessel which may be employed at will to mediate between spheres of action and their respective forms of normativity. Law generates and exerts its own normativity which is moulded by the socio-historical context of its institutions. The uniqueness of the legal system’s purported normativity is not captured by Weber’s ideal types of action sketched above. Moreover, legal theory and legal sociology deal with law’s normativity by using epistemically incompatible terms (see Chap. 2). What mainstream legal scholarship regards as the principal values of the legal system, such as law’s autonomy, objectivity and commitment to the rule of law, become the primary focus of critical inquiry within legal sociology.
Whereas Weber sought an explanation for the normativity of law in reason, calculations and motivations that the social actor employs to justify his/her actions (in this case following the law), others have tried to find it in the law itself, in its specific form of reasoning or discourse, and thus implicitly attribute it to the law rather than to the subject’s use of the law or to the actor’s cognition or thought processes. We argued that the actor’s role in this respect has become increasingly unstable as, on the one hand, his/her habitus starts losing its normativity while, on the other hand, he/she gains reflexivity vis-à-vis social structures. Now let us take a closer look at the normativity of law as a phenomenon which is generated by the law itself and ask if it can provide solidity and certitude under late modernity.
Robert Alexy’s theory of legal discourse (1998), discussed in Chap. 4, provides us with a suitable starting point. According to Alexy, besides a factual side law also comprises ‘a critical or ideal dimension’, which is defined internally by a ‘claim to correctness’ (Alexy 2000; see also Bulygin 2000), a claim which when made by law also entails making a claim to justice. Alexy means that ‘there are moral elements active in law’, that adjudication (at least in hard cases) requires making moral judgements and that ‘legislation claims to be morally justifiable even in the case of political compromise’ (Alexy 2000, p. 143). Law is occasionally unjust, yet it remains and is recognised as law as long as it aims to serve justice. Galligan (2006), whose take on law and society is fundamentally different from Alexy’s, also suggests that there is something unique about the law as a social formation. Paraphrasing Galligan, had law not been a social formation distinct from the other social phenomena with which it interacts, had it not possessed its own very specific social properties and mechanisms, it would have long collapsed into polity, economy, religion, morality or culture (Galligan 2006; for a discussion see Chap. 5). Galligan (2006, p. 244) lists several aspects of the law which, by creating legal frameworks for security and stability, ‘direct society in order to achieve social goods’. Galligan, who follows Hart’s concept of law, does refer to the role of officials and citizens in determining what constitutes the law, but in the final analysis it is the law which empowers officials and the citizenry to play an active role in realising socially desirable values. The institutional facts of the law are in a sense being transformed into values, thus suggesting ‘a projective movement of sorts from the “is” to the “ought”’ (Minkkimmen 1999, p. 39).
From Mauro Zamboni’s positivistic vantage point, the normative movement is in the opposite direction, from values to facts. Zamboni (2007, pp. 172–185) identifies the specific property of the law in its ability to transform values entrenched in political decisions into legally relevant concepts and categories. While Zamboni describes how values and moral rights and concerns are transformed into (some would say reified as) legal codes and rules, Radbruch (1990) contends that for legal concepts to become law, they need to be translated back into the language of values. Although Zamboni conceptually separates law from values, one cannot but wonder if a part of the normative force of legal rules does not retain the link to their underpinning values or social sources (or the normativity which emanates from system and lifeworld). It is reasonable to assume that laws which are generated by transforming political decisions based on existing community values or system imperatives continue to bear the legitimising seal of the community or the administrative system which initially generated them and can more easily be translated back into a language that can be used by the system or lifeworld to realise ‘social goods’. In contrast, laws which are not rooted in community or system imperatives and are brought about to modify common usages, and mores have to fight an uphill battle.
Zamboni, the ardent advocate of legal positivism, and Alexy, ‘the apologist or polemicist in defence of the law’ (see Goodrich 2008, p. 105), conceptualise law and normativity in different ways, and yet their approaches belong to the discourse of legal theory, i.e. they take certain values and ideas belonging to legal theory for granted. To tease out their disciplinary distinctiveness, we can contrast their take on law’s normativity with Pierre Bourdieu’s sociological exposition of the binding force of law. Bourdieu (1987, pp. 843–844) maintains that law’s ‘symbolic power’ extends itself beyond the circle of ‘believers’, i.e. jurists, law’s officials, law professors and others, who have internalised the values of the legal system, such as its objectivity and autonomy, not to mention its ability to deliver ‘social goods’:
The specific property of the symbolic power is that it can be exercised through the complicity of those who are dominated by it. The complicity is all the more certain because it is unconscious on the part of those who undergo its effects—or perhaps we should say it is more subtly extorted from them… [One] of the functions of the specifically juridical labor of formalizing and systematizing ethical representations and practices is to contribute to binding lay people to the fundamental principle of the jurists’ professional ideology—belief in the neutrality and autonomy of the law and of jurists themselves. (Bourdieu 1987, p. 844)
What was described above by Alexy as the ‘claim to correctness’, by Galligan as ‘social goods’ and by Zamboni as the ‘transformative capacity of positive law, which turns values into legal rules’, is reduced by Bourdieu to (and demystified as) the power of the jurist’s professional ideology. This reveals the epistemic gap between Bourdieu’s legal sociology and mainstream legal theory.7 Perhaps understandably, from the standpoint of legal philosophers, such sociological explanations miss the target by miles and at best trivialise law’s sui generis normative property. More importantly, Bourdieu appears to be treating the legal profession as a culturally and ideologically homogeneous group, which has internalised the same values, occupy the same field of legal practice and share the same habitus. Admittedly, legal education and legal training socialise lawyers and create the ‘juridical gaze’. Yet, it is important to recognise that the legal profession consists of a diverse group of lawyers with different tasks, objectives, aspirations and career trajectories within the law.
Although arguing for a sui generis normative legal content for law is reminiscent of natural law theories, those who evoke ‘normativity’ in this way often do not appeal to the metaphysics of natural law tradition. Instead, according to Turner (2010, p. 5), they maintain that this binding quality is neither natural nor mystical or empirical, and yet it is necessarily inherent in law and moral norms. ‘Normativists’, as Turner calls them, do not deny ‘the empirical sociological phenomenon of normativity’ but insist that sociological explanations, such as the one produced above by Bourdieu, are ‘not enough to explain what needs to be explained’ (Turner 2010, p. 5). The sociologist can explain that law rhetorically engenders its binding (symbolic, ideological or normative) power, on the one hand, by claiming to be an objective or an impartial arbiter of disputes, while conflating legality and justice, on the other. In the English language, for example, the word ‘justice’ is frequently employed as a synonym to law. We refer to lay magistrates in English courts as ‘Justices of the Peace’ and to Supreme Court judges as ‘Justices of the Supreme Court’. Similarly, we talk about ‘access to justice’ when we mean access to courts and legal services, ‘the criminal justice system’ when we mean the penal system, ‘bringing offenders to justice’ when we mean prosecuting suspects or sentencing offenders and ‘delivering justice’ when we mean deciding cases. Although following Bourdieu one could say that these are examples of how law exercises its symbolic power, the ‘normativists’ would still demand an explanation as to why justice remains such a compelling force in public political discourse, not to mention in the minds of individual citizens, despite legal positivism’s attempts to distinguish it sharply from legality. This is true under early and late modernity. What distinguishes contemporary social movements—which range from animal rights to environmental and anti-globalisation and Arab Spring movements—from the earlier social movements is their global reach and concern with issues which transcend local politics.
We should also note that law’s normativity as it was defined by Alexy and Galligan cannot be extended to explain how law’s based on risk management strategies (RMSs), which we discussed in the previous chapter, exert their normativity. RMSs are neither driven by the urge to make a ‘claim to correctness’ nor by achieving ‘social goods’. We shall develop this point in the next section.
2 Justice as Law’s Primary Source of Normativity
2.1 Defining Justice
Justice has been defined as a virtue or a moral value of the highest order. Its sources range from divine command to the practices of the wise ruler, and from the law of nature to the living law of the community. For our immediate purposes here, we will depart from the understanding of justice formulated as a general norm in Justinian Institutes as ‘the constant and enduring will to render to each what is due’ (Barden and Murphy 2011, p. 5)—a will which involves an unconditional, and arguably asymmetrical, responsibility to recognise and respond to the singularity of the Other (Derrida 1992; also see McVeigh 2002). ‘Rendering to each what is due’, most people would concede, should be one of the key considerations when determining how society is organised and how the activities of individuals and social groups are regulated. Some would even argue that it is one of the defining characteristics of a functioning human community and harmonious society. Nonetheless, few would agree on what ‘rendering to each what is due’ amounts to and how it ought to inform human affairs in practice. This renders debates and discussions on what constitutes justice inevitable, even though, as pointed out by MacIntyre (1981, p. 6), we know that ‘they apparently can find no terminus’ and, as argued by Derrida (1992), they require making an infinite, incalculable and ultimately impossible judgement. Nevertheless, law is required to be just, and unjust law is never recognised or accepted as a legitimate exercise in political and legal authority. This does not imply that it is expected to deliver justice in every case, but it should be committed to the principle of justice and not produce ‘grossly unjust’ outcomes, to borrow again from Alexy (this point is made in reference to Alexy’s appropriation of Gustav Radbruch’s legal theory; see Alexy 2002). Expressed differently by Simmonds (2007, p. 197), ‘[…] while justice and legality are distinct and can compete with each other, legality can only fully be achieved where justice is achieved also’. By extension, any society not governed in accordance with the principle of justice is prone to social conflict and political upheaval; in such a case, the society will be no more than a precarious social order maintained over time purely through coercion, oppression and the threat of violence.8 On this basis, justice becomes the source of law’s normativity par excellence. This view, however, is not shared by legal positivists, who argue that there is no necessarily specific connection between law and morality, and then move on to locate justice (which involves making an ethical judgement) beyond the legal system, in that it becomes not an integral part of the law’s operations but a moral judgement about the law. For them, justice is not an intrinsic attribute of legal decision-making but a normative benchmark which exists independently of the law and legal institutions. This allows legal positivism to construct a rule-based theory of law independently of morality,9 while at the same time drawing a disciplinary borderline between themselves and others, such as natural lawyers and legal pluralists, who conflate is and ought (for the debate between Kelsen and Ehrlich see Van Klink 2006, discussed also in Chap. 7).