Law, Legal Culture and Society

Mirrored Identities of the Legal Order

Alberto Febbrajo

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351040327
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This volume addresses the pluralistic identity of the legal order. It argues that the mutual reflexivity of the different ways society perceives law and law perceives society eclipses the unique formal identity of written law. It advances a distinctive approach to the plural ways in which legal cultures work in a modern society, through the metaphor of the mirror. As a mirror of society, it distinguishes between the structure and function of legal culture within the legal system, and the external representation of law in society. This duality is further problematized in relation to the increasing transnationalisation of law.

Based on a multi-level interpretation of the concept of legal culture, the work is divided into three parts: the first addresses the mutual reflections of social and legal norms that support a pluralist representation of internal legal cultures, the second concentrates on the external legal cultures that constantly enable pragmatic adjustments of the legal order to its social environment, and the third concludes the book with a theoretical discussion of the issues presented.

Part I
Towards a reflexive legal culture

1 The normative anatomy of society¹

Håkan Hydén

Without going into the causal mechanisms of the construction of society, I will reflect in this chapter on society’s construction in normative terms and, thereby, try to lay the foundation for a theory based on the strategy of anatomy applied to society. Anatomy is that part of biology that deals with how organisms are built. All living organisms consist of cells that are structured in different types of tissues, which, in turn, build up the organs. Anatomy studies and systematises the knowledge of these structures. Every society is made up of individuals that are structured in different types of social communities. Sociology of law studies and systematises the knowledge of these structures.² It is the role of (social) science to deal with how communities are structured, both in terms of social and of system integration.

1. Society as a living object

Durkheim aimed to establish sociology as a science and keep it separate from psychology. He went so far in his efforts to streamline sociology as a social science that he argued that social facts were independent of the individual. To gain support for sociology as a science, Durkheim drew parallels to the (natural) sciences that understood natural facts as being independent of the individual. Durkheim argued that there are social facts with the same ontological base, i.e. existing in society irrespective of the individual. On the contrary, they are something that individuals are forced to relate to. Social facts influence individuals’ behaviour. They can be studied as things and, thus, measured in the same way as natural science objects.

Durkheim claimed that sociology as a whole is based on the objective reality of social facts.³ To be possible, sociology “must above all have an object all of its own, a reality which is not in the domain of the other sciences”, and that object is social facts. Durkheim regarded social facts as lying on a continuum.⁴ At one end are structural social phenomena, making up the substratum of collective life, such as demographic factors, infrastructure, the form of dwellings, etc. Then there are what can be called institutionalised norms, which may be more or less formal. Here, Durkheim refers to legal and moral rules, religious dogmas, financial systems, etc., i.e. to established beliefs and practices. Finally, occupying the rest of the continuum, Durkheim counted social facts that are not institutionalised, but have the same ascendancy over the individual, mentioning social currents of different kinds as an example.

In his eagerness to argue for sociology as an independent science with its own field of knowledge, Durkheim closed the door to interaction between the individual and society as a potential explanatory factor for human behaviour.⁵ As such, what remained were social facts as the explanatory factor in all its nakedness. Social facts became an object of study in itself. In this way, Durkheim lost the ability to generate theories about what governs human behaviour at the collective level: this was the price he had to pay when he fought to establish sociology as a science.

Durkheim’s mistake was that he ignored that the knowledge objectives of social science and natural science are not compatible. They cannot be studied in the same manner and with the same theory and methods. To illustrate this, we can make use of a comparison between an atom and an individual. An atom is the minimum unit of an element that defines its chemical properties. The term ‘atom’, from the Greek ἄτομος, átomos, meaning ‘indivisible’, was created because the original atomic theory presupposed the atom as indivisible, even though it has long been known that is not the case. The atom can nevertheless be said to symbolise the knowledge object of natural science. If we look at the social sciences, the individual, from the Latin ‘Individuum’, which, in turn, means indivisible, is an equivalent representation. If we compare these two entities, the atom and the individual, they exhibit many times totally opposite characteristics. The atom holds the same properties, no matter where it occurs over the globe, while individuals differ, depending on context. Individuals from different countries or different ethnic groups have different cultural backgrounds, so behave differently. The atom can be manipulated, as experiments may be conducted to verify its properties and its relationship to other atoms, etc. In terms of individuals, it is often unethical to do experiments or in any case to manipulate the individual. When we study atoms, there is reason to expect them to behave in the same way, all other things being equal. Individuals, on other hand, are equipped with their own will, which means that there is no guarantee that similar circumstances will produce the same results when comparing how individuals choose to react and behave. Individuals are subject to different motives for acting, and this results in different outcomes. This does not mean that individuals sometimes choose to act in the same way. This is particularly the case when they occur under the same structural conditions, which then give rise to similar behaviour. This may also concern common interests. Another example is group pressure that can exert pressure on individuals to act in the same way.

When combined, these circumstances make it more difficult to accumulate knowledge in social science than in the (natural) sciences. There is even the possibility that, if you think you have established certain scientific evidence concerning how individuals behave in a certain context, then this relationship might have changed before the scientific result has been published. Sometimes social sciences are accused of a kind of built-in bias in the assertion of the research results and are blamed for being the actual cause of what was to be explained.

This results in the social sciences having to cut away as much as possible of the contextual factors, giving a psychological bias, or preferring theories established on a high abstract level, thus detaching themselves from the contextual burden. Here we can refer to Marx’s surplus value theory. The same judgement can be based on contemporary social theorists, such as Jürgen Habermas and Niklas Luhmann. These theories may be viewed as examples of the Grand theories. Grand Theory is a term invented by the American sociologist C. Wright Mills,⁶ who refers to the form of highly abstract theorising in which the formal organisation and arrangement of concepts takes priority over understanding the social world. In his view, Grand Theory was more or less separated from the concrete concerns of everyday life and its variety in time and space. Concepts in our time, such as soft law, governance and the like, have become empty rhetorical spaces. The same goes for a concept like living law, which becomes an explanation without explanatory value in itself.

The theories become immune to empirical load, while becoming more or less empirically vacuous. They even have problems inspiring empirical studies. This is a dilemma for all social science research: either it becomes contextually bound, not least to a certain country, or it loses basic contact with empirical relationships in that its theory floats more or less freely. In the latter case, (social) science tends to develop its own codes and language in the course of time, which becomes the criterion of belonging to an international research environment. You can sometimes even talk about a certain genre. The disadvantage of this relationship is that the theories may be an end in themselves. Science tends to ‘chew around’ and twist and turn the same old truths, but in new ways, although without science progressing in the form of increased knowledge about the actual conditions.

The difference between the individual’s characteristics and the atom puts social science at a disadvantage in comparison to science, and medicine for that matter, which can afford to be much more international and cumulative. There is therefore little doubt about the kind of science that enjoys the best reputation. Within the social sciences, the scholarship surrounding economics comes closest. Building on the idea that all people are equal and, therefore, will react in the same way, all other things being equal (homo oeconomicus),⁷ one can accumulate knowledge internationally. By changing the context, one can systematise the knowledge of how humans relate to different economic incentives.⁸ This resulting simplification from these cases is that human action is not only determined by economic considerations and that not all human beings value things in the same way. The assumption that self-interest is the motive governing all human behaviour situates the economy as a one-dimensional science. But the generalisation on which economics as a science is based gives it an advantage compared to other social sciences in that it claims to be able to comment on various social relations regardless of national context.

As we have seen, in seeking to establish sociology as a science, Durkheim adopted the position that the study object exists outside individual consciences. Sociology would study the world regardless of how it emerged in the human mind. For Durkheim, there was a reality independent of human consciousness. By adopting this position, Durkheim disregarded the question: ‘How do social facts as such affect human actions?’ Instead, for Durkheim, social facts were collective representations that could be the basis for sociological explanations that satisfy the social science requirement to consider the motives behind human action. Durkheim saw the role of sociology as a science about institutions, their emergence and functioning, mentioning the state, family, property law, contract, punishment and responsibility and arguing that we are ignorant of their causes, their functions and the laws governing their development. However, this is something that later research has attempted to remedy, not least through the broader scope of specialisation that has taken place in the social sciences in terms of political science, social work, legal science, criminology, etc.

What still seems to be unanswered, however, are questions about how these institutions, construed as social facts, affect the motives for human behaviour, where motive is taken to mean one of two things: either what the image represents (or something that science produces) or a ground or reason for something in itself. With his social-realistic approach, Durkheim was caught in the first position: motives for action were subordinate to the determination of social facts, as something that is capable of exercising “over the individual an external constraint”. However, a crucial question for social science is to understand how social facts affect people’s motives to act in certain ways, whether it is under social coercion or related to incentives. With this approach, social facts have the potential to lay the foundation for an understanding of the normative anatomy of society. It is by accessing the motives for human action that we find reason to concern ourselves with society’s normative anatomy. On this basis, human action can be seen as related to a certain normativity: with this concept we refer to the conditions (social facts), or the climate through which the motives for human action is shaped. The question we must ask ourselves is what motives make us comply with social facts? What is it that makes people feel obliged or wish to act in certain ways?

2. Norms and motives

One assumption for the study of social normativity is that individuals’ actions are guided by different motives: psychology as a behavioural science might produce knowledge about the motives individuals have when they act. Sociology of law, as a social science, studies norms in an attempt to understand human action on a collective level in the light of the general motives that make their presence felt in different situations, the situated context. Durkheim offered this kind of explanation in terms of organic-psychic factors that, in his view, are pre-social features of the individual organism.⁹ He also discussed psychological explanation in terms of particular or individual, as opposed to general or social conditions. Finally, and most often, he viewed and situated psychological explanations in terms of individual mental states or dispositions.

On a collective level, the motives for human behaviour are embedded in norms. These, in turn, form systems of norms, which are linked to institutions. Norms are seen as an overarching concept containing different categories. For analytical purposes, there is reason to distinguish between (1) law, linked to the state and having a background in institutions belonging to the political system; (2) ideological rules based on party politics, as in Communist regimes; (3) religious rules emanating from a specific religion; (4) rules, underpinned by private agreements and having a background in civil society or the market; (5) social norms, based on the relations between people and with a background in the interactions and communications that takes place between people; and (6) professional norms, which are used to solve specific tasks, usually within a public authority or a private company, and have a background in knowledge developed by science or practical experience. These different systems of norms interfere with each other in a way that creates a kind of trans-normative reflexivity. Within one and the same formal organisation (jurisdiction), nation state, there might be competing norms on the same level, e.g. different legal systems or different religious rules.

That norms have an essential function for society becomes clear if we consider that social community depends on the existence of norms. The notion of social community is based on collaboration of various kinds: collaboration is synchronised by norms and is vital, both for the individual and for ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• List of figures and tables
• Notes on contributors
• Introduction
• Part I Towards a reflexive legal culture
• Part II On the multidimensional functioning of legal systems
• Part III A conceptual discussion
• Index