Sociology of Law as the Science of Norms

Håkan Hydén

• Editorial: Routledge
• Año: 2021
• ISBN:
  9781000533101
• Edición: 1
• Categoría: Diritto
• Categoría: Teoria e pratica del diritto

This book proposes the study of norms as a method of explaining human choice and behaviour by introducing a new scientific perspective.

The science of norms may here be broadly understood as a social science which includes elements from both the behavioural and legal sciences. It is given that a science of norms is not normative in the sense of prescribing what is right or wrong in various situations. Compared with legal science, sociology of law has an interest in the operational side of legal rules and regulation. This book develops a synthesizing social science approach to better understand societal development in the wake of the increasingly significant digital technology. The underlying idea is that norms as expectations today are not primarily related to social expectations emanating from human interactions but come from systems that mankind has created for fulfilling its needs. Today the economy, via the market, and technology via digitization, generate stronger and more frequent expectations than the social system.

By expanding the sociological understanding of norms, the book makes comparisons between different parts of society possible and creates a more holistic understanding of contemporary society. The book will be of interest to academics and researchers in the areas of sociology of law, legal theory, philosophy of law, sociology and social psychology.

1 Why do we need a science of norms?

DOI: 10.4324/9781003241928-1

1.1 Different perspectives of norms

1.1.1 Design of the book

The purpose of this book is to propose the study of norms as a method of explaining people’s behaviour by introducing a new scientific perspective: a science of norms. This discipline can broadly be understood as a social science which includes elements both from behavioural studies and legal science. I must emphasize at this early point, to avoid any misunderstandings, that a science of norms is not a normative science – that is to say a science that prescribes right from wrong in various situations. The norm science perspective shares studies of the normative landscape, the interpretation and understanding of the world in terms of norms and normative structures. This is what distinguishes sociology of law (SoL) from other social sciences. Compared with legal science, SoL has a broader interest in norms, as well as legal rules and regulations. I should also emphasize that SoL is not a normative science, unlike legal science. SoL is an empirical and theoretical science. Neither does it have anything to do with the study of what is desirable¹ or what is regarded as morally good² or social dilemmas.³ However, the norm perspective is not a unicellular animal. It can be subdivided into three dimensions: (1) analytical, (2) empirical and (3) normative.

See, for instance, Badersten, Björn (2008). Normativ metod att studera det önskvärda. Enskede: TPB, Biel, Anders, Dahlstrand, Ulf & Fransson, Niklas (1990). The content of moral values. Gothenburg: Uni. See for instance, Rachels, Stuart (2015). The elements of moral philosophy. 8th ed. Dubuque: McGraw-Hill Education. See Biel, Anders, Eek, Daniel, Gärling, Tommy, & Gustafsson, Mathias (2008). New issues and paradigms in research on social dilemmas [Elektronisk resurs]. Boston, MA: Springer.

In this chapter, I will mainly address the analytical aspect of the science of norms. After all, this is what would uniquely and specifically characterize a science of norms in comparison with other social studies. The concept of norms can be used to detect motivational forces, both at a micro and a macro level. However, we are not always aware of these forces. The brain, which we spontaneously perceive as something that we think with, paradoxically allows us to not have to think about what we do. Our practices are imprinted in the brain through the various experiences stored in every individual. The same applies to norms. They help us act without having to think about it. To draw a parallel on a societal level and on the basis of norms as guidelines for action, this would suggest that we do not act as individuals; rather, we follow existing norms and the normativity that emanates from them. Norms guide us, often without us even being aware of them. Norms are embedded in the organization of companies and public authorities. They are also reflected in what we call tradition. “You do it too! That’s how we’ve always done it!” We’ve all learned that we should act in a certain way. Sociologists describe this as an internalization of norms, a term that partially covers the phenomenon. We take much for granted – how we act, norms, sitting – as if it were second nature. We do not need to consciously think about them. Norms contain and transfer information across generations on how to act in different situations.

Norms tend not to emerge until changes in circumstances occur, whether it is the individual’s or the entire society’s circumstances. In this introductory chapter, I will therefore also present a theory of social development, without which it is difficult to understand shifts over time in the normative landscape. This also has repercussions on science which progresses from reductionism to holism, as noted in the conclusion of this introductory chapter. There is a dividing line that runs through the norm – a scientific perspective between lifeworld and system, as developed by Jurgen Habermas. Broadly speaking, this distinction correlates to the difference between social norms and systemic norms, as discussed in Chapter 2. The following chapter addresses the empirical aspects of a science of norms, as further developed in Chapter 3, which traces the source of norms to various systems of knowledge, such as economics and technology. With regard to the normative perspective, the focus lies primarily on the legal system, seen as a normative system, as discussed in Chapter 4. The point, here, is to link the normative content of law to its social counterpart, the substratum of law. This is then followed by a description of the development of law and changes over time, in Chapter 5, and Chapter 6, which presents a theory of the development of law. The last chapter situates a science of norms between law and society. It also introduces a new innovative concept, i.e. strategic normative thinking, or SNT, which complements legal science’s primary, and dogmatic, focus on the content of law. Finally, the book underlines how important a norm-scientific perspective is when studying new, normative phenomena, such as artificial intelligence (AI) and algorithms.

1.1.2 Norms from an analytical perspective

A science of norms would fundamentally be an empirically based discipline which focuses on what people believed to be good or bad, right or wrong, in various circumstances and how it influences their inclination to act in a certain way. It presumes that the motivational forces underlying people’s actions is the decisive, explanatory factor when studying people’s behaviour, regardless of whether they realize this or not, whether it is voluntary or enforced. Part of the scientific mission is to find out whether this is true. To the extent that norms that provide guidelines for how to act are generally well-established, it may be possible to predict people’s actions. This, however, is not the same thing as prescribing an action. It is merely a factual conclusion that certain values and norms exist in a given social context in time and space.

One of the great challenges for the sciences is how to deal with values. Science is not allowed to be subjective or arbitrary. On the contrary, the essence of science is to be objective and unbiased. At the same time, science is about human behaviour and what determines it. Is it at all possible for scientific analyses to be descriptive without being subjective? The problem, here, is that the object of scientific study consists of human activities, which are a subjective matter. When science discovers regularities in human behaviour, it runs the risk of being content with analysing the contextual factors, as they are easier to identify and determine, thereby neglecting subjective aspects. This problem has to do with how science relates to emotionally loaded and subjective values. The answer to this problem leads us to the paradoxical inherent problem in science: namely, that the sciences are forced to be based in normativity; they must take normativity seriously and provide a transparent explanation of the premises on which the normativity is based in each case.⁴

This is not a question of whether the individual scientist’s values are such that they risk affecting the scientific results, a key issue, not least for the social sciences, as has been addressed by Myrdal, Gunnar (1983), where he felt that the important thing was not that the scientist openly declares his values, but rather about stating the normative premises that characterize the action or event of study. See also Myrdal, Gunnar (1958).

A socio-legal norm analysis focuses on studying and analysing the norm process and how it is employed. The example of the paradoxical problem, i.e. that in science, subjective and emotionally loaded values are best treated by openly presenting the normative premises on which the actions being studied are based, can be taken one step further. The only scientific approach that is not implicitly normative is that which explicitly studies norms. A science of norms, therefore, is about understanding the motivational forces behind people’s actions.⁵ Actions are mediated subjectively despite the fact that they are partly determined by social factors. The social sciences, therefore, are forced to use categories and concepts that address subjectivity on a general level. This is where norms come in. The concept of norms can be seen as the mediating link between what is and what ought to be, or to put it in social scientific terms, between the actor and the system. The sciences articulate and objectify the systems, and their scientific conclusions then become a part of shaping the normative prescriptions that underlie people’s actions. The norm acts as an interface between possessing knowledge of the is and various kinds of values-based approaches to how we ought to act in different situations.⁶ In this case, the concept of norms and the empirical study of norms help us to understand causalities that underlie human behaviour on a collective level. Through the study of norms, human motives for collective action can be captured.⁷ This approach goes beyond Max Weber’s Verstehen method. Weber was a methodological individualist who argued that we can only understand social phenomena and historical processes by studying how individuals experience the world and what they find meaningful.⁸ Dissecting existing norms in a descriptive way allows us to capture the preferences and motives that underlie human behaviour on a collective level.

Håkan, Hydén. (2002). Normvetenskap (Norm-science). Lund: Department of Sociology at Lund University, p. 330. Baier, Matthias, Svensson, Måns and Nafstad, Ida. (2019). Understanding sociology of law. Lund: Studentlitteratur. See Section 1.3.1. Weber, Max. (1978). Economy and society: an outline of interpretive sociology. Vol. 1. Berkeley, CA: University of California Press.

Durkheim’s ambition was to establish sociology as a science and keep it separate from psychology. He went so far in his efforts to define 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, which viewed natural facts as being independent of the individual. Durkheim argued that social facts have the same ontological base, i.e. they exist in society irrespective of the individual. In fact, individuals are forced to relate to them. Social facts influence people’s behaviour. They can be studied as objects and thus be measured in the same way as objects in natural science.

Durkheim claimed that sociology was based in its entirety on the objective reality of social facts.⁹ For sociology to be at all possible, it “must above all have an object all its own, a reality which is not in the domain of the other sciences”, that object being social facts. Durkheim regarded social facts as a continuum.¹⁰ At one end, there are structural social phenomena which make up the substratum of collective life, such as demographic factors, infrastructure, different kinds of dwellings, etc. There are also what can be called institutionalized norms, which may be more or less formal. Durkheim refers here to legal and moral rules, religious dogmas, financial systems, etc., i.e. established beliefs and practices. Finally, occupying the remainder of the continuum, Durkheim counts social facts which are not institutionalized but have the same ascendancy over the individual. Here, Durkheim mentioned different kinds of social currents 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 both the individual and to society as explanatory factors for human behaviour. Left remaining were social facts in all their nakedness. Social facts became an object of study in themselves. This prevented Durkheim from being able to generate theories of what governs human behaviour at the collective level. This was the cost of his struggle to establish sociology as a science.

Lukes, Steven ([1973], 1985, pp. 8–10). Ibid.

Durkheim’s mistake was that he ignored that the objects of knowledge in the social sciences and natural sciences are incompatible. They cannot be studied in the same way, using the same theory and methods. To illustrate this, we could compare an atom to an individual. An atom comprises the minimum unit of an element, which defines its chemical properties. The term atom comes from the Greek ἄτομος, átomos, meaning “indivisible”. The name was created because ancient atomic...

Índice

• Cover
• Half Title Page
• Title Page
• Copyright Page
• Contents
• Acknowledgement
• Preface
• 1 Why do we need a science of norms?
• 2 Two competing normative worlds and their internal changes over time
• 3 About norms and action systems
• 4 Law as a system of norms
• 5 The evolution of norms and law
• 6 Toward a theory of legal change
• 7 A science of norms: a science for the 21st century
• Bibliography
• Index