On Legal and Social Norms, Pt. II
In a prior essay, I wrote (perhaps too circuitously) about the connection between legal and social norms. This is intended to be a brief clarification based on some (helpful!) pushback I received on that post.
My goal here is to put all of my cards on the table with regard to a sociological thesis about the connection between legal and other social norms. The thesis concerns the enactment of positive law as a speech act within the context of a political discourse limited to a particular culture and time period. Namely, my thesis is that positive legal enactments are intended to do something—to have one effect or another on the body of social norms which govern a particular political community.
Take a society that has a given body of social norms. Where those norms are under no pressure of any kind (or perhaps more correctly: where there is no apprehension that those norms are under pressure of any kind, which covers situations of both under- and over-estimation of threats to existing norms), there is no rational need to promulgate a positive law with regard to those norms. As the thought experiment of my previous essay was intended to show, those norms can persist for centuries as purely non-legal norms up until the point at which they are challenged.
To be clear, there are a number of things which the enactment of a positive law can attempt to do with regard to a body of social norms. It can seek to create a norm where none existed earlier, such as a norm to drive only on the right side of the road in a society where traffic patterns were previously chaotic. It can seek to eliminate a social norm which has fallen out of favor, such as a law to eliminate some extant remnant of a decaying caste hierarchy. It can seek to entrench an existing norm, adding the force of organized legal sanction to extant decentralized enforcement mechanisms, such as an ordinance fining those who litter where social stigma against littering exists but is not itself sufficient to keep the parks clean. It can seek to modify an existing norm without abolishing it entirely, as where laws governing institutions such as marriage and divorce are liberalized or constricted without the goal of eliminating the institutions entirely.
My point here is that positive law is something created to effectuate some purpose, and the goal in mind will almost certainly be in relation to the body of social norms which enforce the concrete form of life of the social and political community the law is intended to govern. A society is held together by a body of shared values and norms. Some of those norms are purely social (enforced by shaming of those caught violating the norm), some are legal (enforced through the state’s monopoly on force), some are moral (enforced, at least ideally, through the inner voice of conscience even where there is no possibility of being caught violating the norm), and some are what Elster calls quasi-moral, having the force of a moral norm, but only in conditions in which others adhere to the same norm. (E.g. it is a norm that everyone should donate to the poor, but the extent to which I feel the force of the norm is determined by the extent to which I perceive others as also donating to the poor.) To pass a law is to muster political power to do something to the society’s governing nexus of norms.
As a matter of legal interpretation, this gives law a somewhat paradoxical character. A positive legal enactment—say, a statute--is interpretively bound to a given time and place, as an expression of the power of a governing coalition which is seeking to do something specific with the power it possesses while it still possesses it. In this sense, it is fully contextualized to a given point in the life of the community. However, the intention will generally be to effectuate some lasting goal on that community which, in the case of constitutional and superstatutory norms, may persist for centuries. Positive law is, at the same time, fully historicized and largely ahistorical.
This quasi-paradox is inextricably tied to questions of legal interpretation. We may take a historical-sociological point of view toward positive law, seeking to understand exactly what the lawmaker intended to do, a process which requires a reasonably thick conception of the context in which he or she sought to do it. From this point of view, we can also look at the actual effects that the law had on the society (to the extent those effects can be causally isolated) and assess whether the lawmaker was successful in achieving his or her goal and what other, perhaps unanticipated effects the legal enactment may have had. Or, we can take something closer to what H.L.A. Hart called the internal point of view, that of someone who takes law as a standard for normatively criticizing his own conduct and that of his fellow citizens. We here feel the law, not as an exercise of reason, but instead practical reason, our inherent faculty of moral apprehension. We feel the moral tug that legitimately enacted positive law has on us and on the nexus of obligations we inhabit, encompassing moral, quasi-moral, and social (I here typologically include legal and political) norms with which a given positive law may, in specific cases, conflict. And we render a conclusion on what we should do, not under this statute or that regulation, but as an all things considered judgement regarding our overlapping ties of obligation as a member of the political and social community.
The internal and external point of view utilize completely different faculties—the former irreducibly moral, the latter perhaps fully intellectual. It should perhaps be kept in mind, however, that those who enact positive law are themselves immersed in the internal point of view: they are consciously attempting to alter the balance of conflicting obligations, in either the present or the future (the latter, most obviously, when the enactment is intended to entrench a strong, already existing norm), in order to make one outcome or another more likely. There is no full understanding what the lawmaker has done without stepping inside the normative situation in which the law was enacted, without attempting to think his or her own thoughts qua moral agent.
Competing theories of legal interpretation take different stances on how well we must actually understand what the lawmaker has intended to do in order to interpret the speech act he or she brought into the world. In a hardline textualist view, we should perhaps completely set aside any form of contextualization of the speech act which cannot be provided entirely by a contemporary dictionary. This is to take a purposefully hamstrung view of the interpretive enterprise, most likely in the aim of competing goals, such as certainty in predicting the result. But, obviously, this always invites the questions of (a) whether the limited interpretive enterprise actually tends to achieve the goals it purports to achieve [Does textualism really produce certainty in outcome???] and (b) whether those goals are more valuable than those we might promote through a more robust understanding of the legal enactment. It should be no surprise that my view, as an interpretivist, is that, when we address the question, as judges, lawyers, or even merely as citizens, of what the law requires (NB: ‘the law’—our full web of legal obligations, not ‘a law,’ a single legal enactment), the fundamental lens is always the internal point of view, not the external view amenable to positivistic analysis.