Social and Legal Norms

Towards a Socio-legal Understanding of Normativity

Matthias Baier

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317054092
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

In an era where new areas of life and new problems call for normative solutions while the plurality of values in society challenge the very basis for normative solutions, this book looks at a growing field of research on the relations between social and legal norms. New technologies and social media offer new ways to communicate about normative issues and the centrality of formal law and how normativity comes about is a question for debate. This book offers empirical and theoretical research in the field of social and legal norms and will inspire future debate and research in terms of internationalization and cross-national comparative studies. It presents a consistent picture of empirical research in different social and organizational areas and will deepen the theoretical understanding regarding the interplay between social and legal norms. Including chapters written from four different aspects of normativity, the contributors argue that normativity is a result of combinations between law in books, law in action, social norms and social practice. The book uses a variety of different international examples, ranging from Sweden, Uzbekistan, Colombia and Mexico. Primarily aimed at scholars in sociology of law, socio-legal studies, law and legal theory, the book will also interest those in sociology, political science and psychology.

Chapter 1
Introduction

Matthias Baier

Back to norms¹

Norms are an essential part of the social structure and thus always of interest for the social sciences. Few aspects of social life are conceivable without relating to norms in one way or another. Norms are an essential part of the lifeworld, and so they integrate society in a very basic sense. Since norms also proscribe behaviour, norms are ordering social life and in this way norms can also be understood as coercive. By reducing complexity, norms also coordinate actions and contribute to an effective organisation of society. Norms of the legal system have similar functions but are also strongly connected to the political structure; law communicates politics (Hydén, 1978). Societal norms permeate almost all parts of society and are essential for what we call ‘society’.²

Since societal norms are pivotal for society, relations between social and legal norms ought to be fundamental to the scientific study of law in society, be it in the study of law and society, sociology of law, socio-legal studies, criminology, anthropology of law, or any other scientific study of the normative aspect of society. As will be elaborated by Karl Dahlstrand (in Chapter 6), this argument could also be valid for the more internal and theoretical studies of law. Accordingly, it is easy to see that the study of law in society actually has taken norms as one point of departure. Several of the sociological classics have explicitly devoted their studies to a normative understanding of society. Émile Durkheim is a prominent example. He used law to understand changes in society and developed theories understanding normative integration. His theories concerning norms, morals and collective conscience are still of great importance in understanding the social world. Several other classics discussed norms from a more or less explicit socio-legal perspective. This intense interest probably has historical explanations. At the time, it seemed natural for many social scientists to devote at least some effort to the nature of different normative systems and the relations between them. William Graham Sumner’s Folkways is one example, but also sociologists like Georg Simmel and Ferdinand Tönnies took an interest in these issues. Mathieu Deflem has read Tönnies from a socio-legal perspective and points out that Tönnies differentiated societal norms into three subcategories: order, law and morality. In Tönnies’ Gemeinschaft und Gesellschaft law, order and morality express themselves differently (Deflem, 2008), and these two concepts can therefore be viewed as two normative structures. Last but not least, Eugen Ehrlich and his work on the forms and relations between different norm systems must be mentioned (Ehrlich, 2002; Hertogh, 2009).

The interest among early sociologists must, however, be understood in the light of the status of the legal system in the nineteenth century. By and large, it was different from the modern legal system we know today. Even though nineteenth-century law was, to a high degree, professionally organized, the development of the law and other subsystems has thereafter been characterized as a further functional differentiation. Today we can describe this situation as a technocratic rationalization of the law. The functional differentiation of modern legal systems, along with increased legal autonomy, has in some sense diminished the interest in relations between different normative systems. Instead, the relations between the legal system and the political system have become of great importance. Still, several other scholars have taken an interest in a norms perspective during the twentieth century. Roger Cotterrell has written about the social basis of law, more generally in his text books (1992), but also displayed in his interest in Durkheim (Cotterrell, 1999 and 2010).

A modernisation of society with further differentiation of the legal system during the twentieth century does not make it less interesting to study the relations between legal and social norms. On the contrary, there are several reasons to revitalize the study of relations between the formal legal system and other normative systems. Beginning with the assumption that legislation today is the dominant producer of legal norms, where does this leave social norms as a basis for the production of legal norms? Are folkways, mores, conventions, morals and so on of no relevance, either for the production of law or for the application of law? For instance, we find lay judges or jurors in many criminal matters, but other areas of law are often administered by professional judges or other technocrats. Kaarlo Tuori (2002) argues that law is more than the mere application of legislation. Law is also a legal culture expressing important principles and a deep paradigmatic structure, and both have relations with the surface (that is, legislation). This broader understanding of law, of course, raises questions of the relations between these parts of law and social structures in society.

From this perspective, the question for contemporary law is whether the political system itself can constitute the sole social basis for law, even for highly politicized areas of law like welfare legislation? Many studies point to the fact that there are problems in the application of the law resulting from a poor connection to, or incomplete understanding of, the social norms relevant to the field. This book offers such examples. We see these problems following the materialization of law, like in welfare law, but there are other examples. Today we see examples of de-regulation and re-regulation, with the purpose of better connecting the law and its application to the social sphere. Alternative dispute resolution is one such example. But also aspects of so-called reflexive law and other self-regulatory mechanisms can be viewed as attempts to reconnect to the social structures.

A similar problem is the fact that modern law and other subsystems of society, according to Jürgen Habermas, have tendencies to colonize the lifeworld. This means that communication in the lifeworld takes place by means of money and power, for instance. In the case of law, this means that social conflicts are increasingly referred to and thematized in terms of law. For example, in Sweden, conflicts among children at school tend to be resolved by means of law. Here we do not see juridification in terms of legal norms replacing social norms, but rather as a new way of communicating about certain problems. Insofar as the legal-administrative system responds to such problems, we can expect different kinds of perturbations in the social system. Again, we now see attempts to solve this problem by efforts to set limits for the law or by devising new quasi-social mechanisms for solving these kinds of conflict.

In his theory of communicative action, Jürgen Habermas (1987) has argued that law can be seen either as an institution or as a medium. As an institution, law is part of the lifeworld; as a medium, law operates instrumentally. This is one way of understanding the problem of law’s decoupling from the social world. Habermas has later argued (1996) that law is always part of the lifeworld. The mere instrumental aspects of law must be complemented with a more moral dimension, he says. From this follows that law can always be normatively grounded, even for those areas of law that are merely technical. This means that normative structures of the lifeworld are always relevant in the application of law. In Sweden, recent trends in public trust in the law and the courts clearly indicate this. The last decades have shown a decrease in public trust, and the courts are now trying to improve public trust by means of procedural techniques, perhaps aiming at more moral legitimation. One political response to this problem has been to set up the Commission on trust in the courts (SOU, 2008: 106).

Consequently, there are complex relations between law, politics and the lifeworld constituting several kinds of problems. These problems are even more complicated, given the increased diversity of values and complexity of cultures in present-day society. Whatever label we prefer, globalization and increased migration are two developments that point to what is often labelled a multi-cultural society. Given this development, law faces enormous challenges in integrating society. A parallel development can also be described in terms of an erosion of (legal) norms (Frommel, 1996). Motivating this trend are the many observations of a law failing to achieve its goals, a decrease in obedience to law, and even mobilization against law. Even agents of the state follow the law to a lesser degree, and at the logical conclusion of this trend lies the death of homo legalicus.

Michel Foucault offers quite another perspective. If the discussion so far has taken law and its functions in the modern society for granted, Foucault puts much more emphasis on other normative structures than law. Biopolitics, discipline and governmentality are concepts that, at first glance, seem to give another view of the relations between social and legal norms. What is of interest to Foucault are the new mechanisms that attempt to discipline the human body and regulate the population. Foucault described strategies to replace criminalization with positive regulation of, for instance, hygiene, sexuality or health, by techniques such as ordering and normalization. This has even led to claims that Foucault’s view can be described as an ‘expulsion of law from modernity’ (Hunt, 1992: 2). This categorical interpretation of Foucault’s view on law, however, needs an explanation. According to Foucault, biopower as a new mode of governance replaces the juridical mode of governance. The juridical mode is connected to sovereignty and characterized by force, seizure, repression and other methods where law exerts negative power.

The strong focus on governance through normalisation procedures, of course, puts an emphasis on norms. This notion of norms differs somewhat from classical conceptions. Discipline operates through norms, that is ‘standards that the subject of a discipline comes to internalize or manifest in behaviour, for example standards of tidiness, punctuality, respectfulness etc’ (Hunt and Wickham, 1994: 49). Foucault’s ‘norm’ can then be understood rather as the principle of generalisation, a way for a group to measure conduct and make it normal in the sense of statistics. See also Francois Ewald’s (1990) discussion of how insurance can be subsumed under the concept of norms. The fact that Foucault focused on the structural aspects of normativity, however, does not make him less interesting when understanding the relations between legal and social norms. Nikolas Rose and Mariana Valverde argue rather more convincingly that there is a ‘co-existence, hybridization and mutual inter-dependence of law and norm’ (1998: 542).

The purpose of making these sketchy references to Habermas and Foucault is merely to provide examples showing that social norms are part of many contemporary important theories of society; and it thus becomes clear that the relations between legal and social norms are as relevant as ever to the study of law in society. It has also been argued that a basic societal concept like norms might actually serve as an integrating concept, especially when studying law in society (Hydén, 2011). There are also other arguments for developing the norm perspective. One argument concerns the contemporary problems of society, referring to, for example, the body, integrity and internet technologies that need to be viewed in a perspective including social norms. What is significant for these new areas of life is a strong focus on the social aspect, often in combination with technological advancements. What actually is a body? What actually are a ‘man’ and a ‘woman’, given the technical possibilities of today? What is called the technological imperative can itself be viewed as a norm in Foucault’s sense, but it also produces a vast set of norms on a more concrete, action-oriented level. It is, for example, clear that social life on the internet produces or changes many social norms that are far ahead of legal development. Here we also see a strong connection between the social and the personal; and, in many areas today, norms seem to be important for shaping our identity. Law is also challenged in the area of, for example, copyright law when social norms about file sharing contradict legal norms of copyright. The problem is highly relevant, at least in Sweden, where a large portion of the population is file sharing (see Chapter 18).

Another argument for studying law and social norms is the fact that globalization, increased mobility, migration and similar trends further undermine the idea of a shared consensus about values in society. We might easily arrive at a consensus on values such as life, health, well-being, security or social recognition. But other values are less evident for a majority, and modern society is increasingly described as a society where people hold different sets of values. Freedom, autonomy, self-realisation, democracy, authority, duty, self-control, material welfare or sexual equality are examples of values held differently, according to political and cultural settings (Baurman et al., 2010). And, if norms are seen as instruments for the realization of certain values, changes in the value structure result in changes in the norm structure. What these changes will look like is not clear. Does an increased value plurality lead to a corresponding norm plurality – and, if so, what effects will this have on law? Can law continue to exist as a coherent system of legal norms, or are other normative systems better suited to respond to these challenges? We certainly need to understand law as one of several parts of societal norms. Perhaps we need to address societal norms in a post-modern sense and ask the question, What constitutes a post-modern normativity?

The field of law and social norms

There are a growing number of studies into the field of what might be labelled as ‘law and social norms’, and some examples will be provided here. As mentioned earlier, the definition of the concept of norms has direct relevance for how the research field should be described. Assuming that there is something like law and that social norms do exist, there are several concepts with an underlying claim to normativity outside the legal system that are still not labelled as norms. There are also concepts with an ambition to transgress, or even challenge, the division of societal norms into law and social norms, on the one hand, and other kinds of non-legal norms on the other. One early example is Eugene Ehrlich’s concept of living law (Ehrlich, 2002).

Hanne Petersen uses the term ‘informal law’ to describe normative practices in a workplace that are not law, but still normative (Petersen, 1996). She also uses the concept of ‘home knitted law’ (ibid.). A fourth example is ‘indigenous law’ (Galanter, 1981). All discussions of law and social norms pre-suppose that these two concepts can be defined – something that some research contests. As mentioned earlier, for analytical reasons we believe that law and social norms can be separated, but that they are both part of the overall concept of societal norms. Our ambition is – as in many sociology of law studies – to understand not just the relations between the two as separate normative systems, but also their similarities, their interdependence, and how they might merge into one normative practice.

Having made this remark, there are several contributions in what we label the field of law and social norms.³ This is not surprising, since one key question in sociology of law is how social order is upheld in the absence of law or despite the law. This is an even more central question in anthropology of law. For this reason, o...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Figures and Tables
• Notes on Contributors
• Preface
• 1 Introduction
• PART I NORMS AND NORMATIVITY
• PART II NORMS IN PERSPECTIVE
• PART III NORMS AND ACTORS
• PART IV NORMS AND STRUCTURES
• PART V SOCIO-LEGAL NORMATIVITY
• Index