Sociology of Law, Faculty of Law, University of Groningen, Groningen
3. Rules, social control and social order
Every year our nation is invaded by several million ‘things’ … that … threaten total chaos. They hold no brief for the Judao-Christian tradition. They have no modesty. They do not speak our language, nor know our history, nor value our customs. They lack any motive or knowledge that leads them to share, to give and take, to compromise, to accommodate, to cooperate…. They do not respect authority…. Though they do not swear, steal, chew tobacco, fornicate, desecrate the flag, or use four-letter words, they are unaware … that they should not do so….These invaders are human infants…. Something must be done. We need them … but we need them on our terms, not theirs.6868. E.Q. Campbell (1975Campbell, E. Q. 1975. Socialization: Culture and Personality. Dubuque IO: W.C. Brown Co., 1).View all notes
Conscience is the inner voice that warns us somebody may be looking.6969. H. L. Mencken, A Mencken Chrestomathy, New York: Knopf, 1949. Compare Hoffman (1977Hoffman, M. 1977. “Moral Internalization: Current Theory and Research.” In Advances in Experimental Social Psychology: Volume 10, edited by L. Berkowitz, 85–133. New York: Academic Press., 123) (formulating Mencken’s bon mot as follows: “the general expectation that people often have, without necessarily being aware of it, that their actions are constantly under surveillance … [with the result] that the individual often behaves in the morally prescribed way even when alone, in order to avoid punishment”).View all notes
“Law”, I have argued, is for purposes of sociological theory best conceived of as a relatively differentiated form of “social control”. But what is social control? The place to begin, as sociology classically has, is with the “problem of social order”: how is human social behavior possible at all? If the “state of nature” had ever prevailed and human beings really once had been “rational actors” each pursuing his or her own immediate preferences, life would indeed in Hobbes’ words have been “solitary, poore, nasty, brutish and short”,7070. Hobbes (1651Hobbes, T. 1651. Leviathan., 82). Hobbes proposed an analysis of social order, not its history. The suggestion in some of the social contract literature that there actually once was a moment when human beings sat down together and agreed to establish social order – or, as in the case of Coleman (1990Coleman, J. 1990. Foundations of Social Theory. Cambridge: Harvard University Press.), that the emergence of the rules essential to social order can be explained as the outcome of “transfers of rights” by rational actors pursuing their individual self-interest – is just a metaphor gotten out of hand. See further Griffiths (1995Griffiths, J. 1995. “Normative and ‘Rational Choice’ Accounts of Human Social Behavior.” European Journal of Law and Economics 2: 285–299.); compare Sunstein (1996Sunstein, C. 1996. “Social Norms and Social Roles.” Columbia Law Review96: 903–968.) for a similar criticism of the state of nature/rational actor approach to the emergence of social norms; cf. also Hardin (1968Hardin, G. 1968. “The Tragedy of the Commons.” Science 162: 1243–1248., n 74). Another approach to the origins of social rules seems more plausible. Rules as a way of coordinating social life presumably have an evolutionary basis, existing in latent form among primates and hence from the beginning among human beings, who took advantage of language to formulate them and to do all the things with rules that secondary rules make possible. There has thus never been a “norm-free” state of nature among humans.View all notes and it would have remained so forever. Constraint of individual freedom of choice is a precondition of the coordinated behavior that constitutes social life. Human beings do this to an exceptional extent by subjecting individual behavior to rules.7171. There are other possibilities, as the birds and the bees illustrate. But maintenance of social order with rules is a good deal more flexible and adaptable and undoubtedly has a considerable evolutionary advantage, at least for a “higher” ape. Which is, of course, not to suggest that the mechanisms available to other species (chemistry, instinct) are not also responsible for some of the ordered behavior observable among humans.View all notes The “enterprise of subjecting behavior to the governance of rules”7272. Paraphrasing Fuller (1964Fuller, L. 1964. The Morality of Law. New Haven: Yale University Press., 91), referring specifically to “law”.View all notes has come to be known as social control in the social–scientific literature.7373. See Ross (1901Ross, E. A. 1901. Social Control: A Study of the Foundations of Order. New York: Macmillan. Reprinted 1969, Cleveland: Case Western Reserve UP.) for an early use of the concept of social control.View all notes The concept of social control refers to the fact that the behavior of the members of a group in relation to one another is regulated. Maintenance of the rules resides largely and ultimately in the mutual relationships and interactions of the members of the group. Behavior that is regulated in this way can be called, for short, social behavior.
It is the rules for social behavior that permit the existence of “collective goods”, that is, states of affairs (like civil peace, property, language) that no individual can create on his own and that therefore cannot be brought into existence by individual volition.7474. The impossibility that collective goods like property or other institutions can be accounted for in terms of self-interested “rational choice” was famously demonstrated by Hardin (1968Hardin, G. 1968. “The Tragedy of the Commons.” Science 162: 1243–1248.). Hardin’s argument is simply generalized here to all of social order (compare for general theoretical analyses, Olson [1965Olson, M. 1965. The Logic of Collective Action. Public Goods and the Theory of Groups. Cambridge, MA: Harvard University Press.], Elster [1989Elster, J. 1989. The Cement of Society: A Study of Social Order. Cambridge: Cambridge University Press.]; and see more generally on the question of “common property” McKay and Acheson [1987B. J., McCay, and J. M. Acheson, eds. 1987. The Question of the Commons. Tucson: University of Arizona Press.], Ostrom [1990Ostrom, E. 1990. Governing the Commons. The Evolution of Institutions for Collective Action. Cambridge: Cambridge University Press.]). See §3.3.1 for further discussion of the emergence and change of rules.View all notes Rules can, of course, and often are produced and maintained by institutions – as in Schwartz’ two settlements – but the most fundamental forms of social control, from which the differentiated forms derive and on which they ultimately depend, take place in an undifferentiated way, in the course of everyday interaction. We learn how to follow and to use rules directly from personal experience: being told what they are, encountering positive and negative responses to our own behavior, and using rules to influence the behavior of others.7575. “(M)en state norms, as they perform other actions, because the results are often rewarding” (Homans 1974Homans, G. 1974. Social Behavior: Its Elementary Forms. New York: Harcourt, Brace, Janovich., 97).View all notes We also learn vicariously, by observing the behavior of others and what happens to them.7676. Two useful accounts of “socialization” (i.e. learning rules) are Schwartz (1954Schwartz, R. 1954. “Social Factors in the Development of Legal Control: A Study Case Study of Two Israeli Settlements.” The Yale Law Journal 63: 471–491.) and J. F. Scott (1971Scott, J. F. 1971. Internalization of Norms: A Sociological Theory of Moral Commitment. Engelwood Cliffs, NJ: Prentice-Hall.). Schwartz describes how new members of a group can learn the group’s rules without ever having heard them articulated: by observing the behavior of others and by being sensitive to the reactions of others to one’s behavior; one of the agrarian settlements he studied selected candidates for membership on the basis, among other things, of their capacity to learn rules without being told what they were. Scott defines the learning (“internalization”) of a norm as follows: “a person … [has learned] a norm to the extent that (other things being equal) he conforms to it at a spatial or temporal remove from sanctions” (Scott 1971Scott, J. F. 1971. Internalization of Norms: A Sociological Theory of Moral Commitment. Engelwood Cliffs, NJ: Prentice-Hall. (xiii); compare Coleman (1990Coleman, J. 1990. Foundations of Social Theory. Cambridge: Harvard University Press., 292–299). Learning other kinds of behavioral rules can be compared with learning a language (speaking and understanding a language being a matter of following social rules). There may well be a genetic basis for such learning – for the capacity for and the limitations upon learning this sort of thing – and such a genetic basis may entail that only certain sorts of rules can be learned. Compare Chomsky (2007Chomsky, N. (2007). “Approaching UG from Below.” In Interfaces + Recursion = Language? Chomsky’s Minimalism and the View from Syntax-Semantics: Studies in Generative Grammar, edited by H.-M. Gartner and U.Sauerland, 1–32. Berlin: Mouton de Gruyter.) on the learning of language.View all notes Except in the case of highly differentiated forms of social control – such as “law” – learning and sanctioning tend to be hardly distinguishable aspects of everyday interaction, but certainly not the less important for all that.
As Moore argues,7777. Moore (1973Moore, S. 1973. “Law and Social Change: The Semi-autonomous Social field as an Appropriate Subject of Study.” Law and Society Review 7: 719–746. Reprinted in Moore 1978. London: Routledge & Kegan Paul.).View all notes it is groups that are the social locus of rule-creation, rule-learning, rule-following and of the social (dis)-approbation required to support rule-following. Some of these groups are known as “states” and their rules as “law”, a form of social control so elaborate that it consists not only of explicit rules, but also of explicit rules about rules (“secondary rules”7878. See Hart (1961Hart, H. 1961. The Concept of Law. (2nd ed. 1994). Oxford: Oxford University Press. Page references in this essay are to the 1961 edition.), discussed in §3.2.2.View all notes), and even of explicit rules about rules about rules (as in the case of a rule of constitutional law that limits the authority of a national legislature to create or modify rules).
3.1. Rules are facts
Anyone who says he doesn’t know what a fact is, is lying, unless he nonchalantly pours water in his gas tank.
(V. Icke)7979. Professor of Theoretical Astrophysics at the University of Leiden. The quotation is from Icke (2009Icke, V. 2009. “Professor Karels vak” [Professor Charles’ Subject]. In Dat kan ik me niet voorstellen [I Can’t Imagine That], 107–108. Amsterdam: Contact., 107–108) [transl. JG].View all notes
Rules of behavior – including “legal” rules – are fundamental to the sociology of law. It does not follow from this that the sociology of law is itself “normative” (in the sense of evaluative). The existence of a rule – whatever anyone thinks about it, such as whether or not it is morally “good” or “legally” binding – can be established in just as empirical a way as the existence of any other fact.8080. Compare Searle (1995Searle, J. 1995. The Construction of Social Reality. New York: Free Press.).View all notes It is, for example, a statement of fact that is either true or false – one of a rather complicated sort, to be sure, but nevertheless not an expression of a personal opinion or of approval or disapproval – that a man in Saudi Arabia can be married to more than one woman at a time, whereas in England he would be limited to one and in the Netherlands he can also marry a man, but only one at a time. It is also a fact that in the Netherlands, “business lunches” and “professional literature” are no longer deductible from one’s individual income for income tax purposes. And it is a fact that the Supreme Court of the United States (but not the Hoge Raad of the Netherlands) has the authority to assess the constitutionality of legislation. As Vincent Icke might have said, anyone who says he does not know that these are facts is either lying (or trying to be scientifically cute), or he blithely drives on the right when in England.
Non-“legal” rules are also facts, things you can bump into just as easily as you can bump into a door. Anyone who does not believe this is invited to perform a small experiment: behave in a socially unacceptable way at a job interview for a white-collar job – show up in shabby, dirty clothes, for example – and see whether doing this reduces your chances of getting the job. If that is indeed the case, then the dress code in question (however silly or offensive you may think it to be) seems to be a pretty “hard” fact in your society.
As far as the sociology of law is concerned, it is irrelevant whether a legal (or a social) rule is good or bad (although the fact that local actors judge it one way or the other can be very important). The question is, rather, how it works, what people do with it, and why? Not only desirable behavior (environmental protection, for example) but also morally neutral behavior (getting married?) and repellent behavior (slavery, genocide) takes place pursuant to rules. How law works to realize evil is, sociologically considered, the same question – and every bit as interesting and theoretically important – as how it works to accomplish good.
3.2. The definition, ontology, epistemology, methodology and pluralism of rules
One consequence of the growing acceptance of the social fact of legal pluralism has not received the attention it requires. Abandoning the idea that “law” is taxonomically distinct from other social rules cuts us loose from the comfortable (apparent) legal certainty of formal “law” and requires that we have at least roughly serviceable answers to some fundamental questions about the concept of a rule. What counts as a rule (the definition of a rule)? When does a rule exist (the ontology of rules)? How can one know whether rule R exists in a particular social field (the epistemology of rules)? And how can such knowledge be acquired by a researcher (the methodology of rules)? Social scientists are in practice often simply unreflecting legal positivists who take the corpus of “legal” rules to be a distinct entity whose nature is obvious, whose validity is settled by legislatures and higher courts, and which can be known by applying the rules of legal reasoning or, if one is not a lawyer, by consulting a lawyer. Even anthropologists and others who take the idea of “legal pluralism” seriously, generally tend to apply a more or less watered-down version of legal positivism to the rules of “indigenous (i.e. non-state) law”,8181. E.g. Pospisil (1971Pospisil, L. 1971. Anthropology of Law. A Comparative Perspective. New York: Harper and Row.); Llewellyn and Hoebel (1941Llewellyn, K., and E. Hoebel. 1941. The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence. Norman: Oklahoma University Press.); Gluckman (1973Gluckman, M. (1955) 1973. The Judicial Process Among the Barotse of Northern Rhodesia. Manchester: Manchester University Press., 1965Gluckman, M. 1965. The Ideas in Barotse Jurisprudence. Manchester: Manchester University Press.).View all notes and both sociologists and anthropologists often treat the existence and social significance of non-“legal” social rules as a matter of unproblematic social fact.8282. See e.g. Malinowski (1926Malinowski, B. 1926. Crime and Custom in Savage Society. London: Routledge.); Schwartz (1954Schwartz, R. 1954. “Social Factors in the Development of Legal Control: A Study Case Study of Two Israeli Settlements.” The Yale Law Journal 63: 471–491.); Ellickson (1991Ellickson, R. 1991. Order Without Law: How Neighbors Settle Disputes. Cambridge, MA: Harvard University Press., 2008Ellickson, R. 2008. The Household: Informal Order Around the Hearth. Princeton, NJ: Princeton University Press.); Coleman (1990).View all notes A non-taxonomic approach to the concept of “law” requires a more careful approach to the concept of a “rule”.
What counts as a rule? To begin with, we are of course concerned with rules of behavior – not with rules of thumb or of craftsmanship (how-to-do-it rules for things like gardening or photography), nor with the names of observed natural regularities (like the “law” of gravity). Second, rules of behavior are social facts: it is groups that have them.8383. “Social rule” is, in the context of the sociology of law, a tautology, but it is sometimes a useful one since it emphasizes what is essential.View all notes Individuals may “make it a rule” to brush their teeth every morning for five minutes, but this is something different.84
“Rules” and “norms”
Some people prefer the term “norm” for (non-“legal”) rules. I suppose this is because they think social rules are in some way vaguer, diffuser, ontologically or epistemologically more problematic, less binding, more “normative” (closer to “values”), or whatever than “legal” rules. I do not believe any of this, and I think it important not to fall into the taxonomic trap by using different terminology for certain social rules which differ from (some of) the rest only in their degree of differentiation.
Caveat: The discussion here pays no explicit attention to propositions other than rules (i.e. principles, values, policies) that, as Dworkin (1977Dworkin, R. 1977. Taking Rights Seriously. London: Duckworth.) has shown, play a critical role in “legal” reasoning. Dworkin’s analysis applies equally to less highly differentiated cases of social rules than “law”.
Rules are formulations of expectations that the members of a group have with regard to each other’s behavior8585. Homans defines a “norm” (what I call a “rule”) as “a statement specifying how a person is, or persons of a particular sort are, expected to behave in given circumstances….” (Homans 1974Homans, G. 1974. Social Behavior: Its Elementary Forms. New York: Harcourt, Brace, Janovich., 96); compare Winch (1963Winch, P. (1958) 1963. The Idea of a Social Science and its Relation to Philosophy. London: Routledge & Kegan Paul.); Searle (1995Searle, J. 1995. The Construction of Social Reality. New York: Free Press., 2010Searle, J. 2010. Making the Social World. Oxford: Oxford University Press.). In general, a group’s rules only apply to the behavior of its members. There are, of course, partial exceptions and qualifications to this based on territoriality (groups may require strangers to abide by their rules when on their turf), on extraterritorial rules, on the emergence of virtual or meta-groups like “mankind” in the case of crimes against humanity, and so forth. None of this seems important in connection with the present discussion of the concept of a rule.View all notes that generally are (or can be) socially enforced; a rule of behavior limits a group member’s freedom to choose how to behave.8686. Cf. Hart (1961Hart, H. 1961. The Concept of Law. (2nd ed. 1994). Oxford: Oxford University Press. Page references in this essay are to the 1961 edition., 7) (rules “withdraw certain areas of conduct from the free option of the individual to do as he likes”).View all notes These expectations are not a matter of prediction nor of the exercise of purely private (i.e. not rule-based) pressure between individuals.8787. The line between enforcement of a social rule and the exercise of pressure to secure private preferences is a thin one, the choice to enforce a rule being itself to some extent a matter of personal preference (cf. Macaulay 1963Macaulay, S. 1963. “Non-contractual Relations in Business: A Preliminary Study.” American Sociological Review28: 55–67.).View all notes They are social expectations in the sense that breaching the rule entails the risk of a socially approved sanction. Such social sanctions consist of changes in the behavior of others, ranging from expressions of disapproval (which can be as subtle as the turning of a lip or the raising of an eyebrow), through temporary or longer lasting reduction of social interaction (“I expect him to stand behind his product if he ever wants to do business with meagain”8888. See e.g. Macaulay (1963Macaulay, S. 1963. “Non-contractual Relations in Business: A Preliminary Study.” American Sociological Review28: 55–67.) for a description of the informal – relatively undifferentiated – sanctions that support the extra-“legal” contracting behavior (and the mutual trust involved) of American businessmen. See Bernstein (1992Bernstein, L. 1992. “Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry.” Journal of Legal Studies 21: 115–157.) for the somewhat more differentiated but still mostly “non-legal” regulation that regulates transactions in the (international) diamond industry, thereby making possible the mutual trust on which the industry depends. Bernstein shows how adherence to the group’s rules rests in the first instance on the fear of damage to reputation, which would affect both one’s ability to trade in diamonds on the basis of trust but would also entail risk to pleasurable association with others and to one’s self-esteem. See also Ellickson (1991Ellickson, R. 1991. Order Without Law: How Neighbors Settle Disputes. Cambridge, MA: Harvard University Press.); Coleman (1990Coleman, J. 1990. Foundations of Social Theory. Cambridge: Harvard University Press., chapter 5); Engel (1993Engel, D. 1993. “Law in the Domains of Everyday Life: The Construction of Community and Difference.” In Law in Everyday Life, edited by A. Sarat and T. R. Kearns, 123–170. Ann Arbor: University of Michigan Press.) (relations between neighbors).The common post-Macaulay explanation – “efficiency” – for the use of “informal” dispute mechanisms is criticized by Feldman (2006Feldman, E. 2006. “The Tuna Court: Law and Norms in the World’s Premier Fish Market.” California Law Review94: 313–369.) in his study of the “Tuna Court” of Tokyo. This institution, established by the city government to deal with disputes over the quality of tuna sold on auction, is apparently used at least as readily by tuna buyers as Bernstein’s diamond traders and Ellickson’s cattle-rearing neighbors use the “informal” institutions available to them. Feldman’s “falsification” does give important support in a rather exotic setting to the “relational distance” proposition. Relational distance is in the Tokyo tuna market extremely low, and the Tuna Court (whatever its origin) is extremely “informal” (i.e. undifferentiated).View all notes), all the way to effective expulsion from the social group concerned (and hence the loss of the benefits of group membership).8989. Expulsion is the ultimate sanction for failure to obey the rules of any group (cf. Schwartz 1954Schwartz, R. 1954. “Social Factors in the Development of Legal Control: A Study Case Study of Two Israeli Settlements.” The Yale Law Journal 63: 471–491.). In the extreme ecological circumstances of many “primitive” societies, this is in effect a death sentence; among economic actors who are heavily dependent on one another, the same may be at least metaphorically true.View all notes
There are also secondary social rules (rules about rules) that regulate the nature and extent of appropriate sanctions, who is authorized to react in such ways, what the proper procedural approach is to a case of violation, and so forth.9090. Such authorized reactions are sometimes considered part of a full expression of the rule, or even the “real” rule (cf. Raz 1973, 83). On this view, many things normally regarded as rules are actually only indirect references to the “real” rules: the rules of marriage, for example, are “really” the prohibitions of adultery, bigamy, etc. and the requirements of mutual support and so forth. I do not see the point of such departures from ordinary usage (cf. n 94 below).View all notes These rules authorize the sanctions, in the sense that those who react in this way, can justify their behavior (otherwise itself a breach of the rules of social interaction) by pointing to the rule violated and to the relevant secondary rules, and can expect support from other members of the group. Such social sanctioning can, as we know from our discussion of Schwartz and the two Israeli agricultural settlements, be more or less differentiated.
It would be wrong to overemphasize the negative aspect of rules, assimilating all of them to the prohibitions of criminal law. Rules provide for facilities (how to do it rules, important among them: powers9191. See Hohfeld (1946Hohfeld, W. N. 1946. Fundamental Legal Conceptions as Applied in Judicial Reasoning. New Haven: Yale University Press.) on different sorts of rules, giving rise to different sorts of legal relationships.View all notes), cooperation and coordination with others, and so forth, all of which greatly increase the range of behavioral choice, but which necessarily do so subject to particular constraints. Many rules do not themselves require any particular behavior: they simply provide, for example, for how a particular result is to be accomplished (you don’t have to get married, but if you want to, here is how to do it).9292. See Vezzoni (2008Vezzoni, C. 2008. Advance Treatment Directives and Autonomy for Incompetent Patients. Lewiston, NY: The Edwin Mellen Press.) for the difficulties of assessing the social effects of legal “facilities” (in his case, the right of patients to formulate binding “advance treatment directives”). Vezzoni introduces the concept of a “vital social practice” to take the place of “effectiveness” in assessing the social consequences of such rules.View all notes The behavioral constraint imposed by such rules lies in the fact that if you do not follow them, you will not accomplish the desired result. If your “marriage”, for example, is not valid, you will not be entitled to the special privileges enjoyed by married people – in, for example, the areas of taxation, inheritance, kinship, parental power – and if you are caught exercising them anyway, your social group will make life difficult for you in one way or another.9393. Sanctions are often indirect: there is nothing less “real” about the “rule against perpetuities” (which renders invalid a legal instrument that creates a future interest which only becomes effective a long time after the creator’s death) than about rules requiring or prohibiting the wearing of headscarves, although the sanctions – if one prefers: undesired consequences of failure to comply – in the two cases are very different.View all notes Similarly, someone seeking to exercise a power to which a group’s rules do not entitle him will simply not be obeyed (or worse: if the power in question is that of a king, for example, he risks being treated as a usurper, possibly at the cost of his head).
Finally, there is the problem of the “unit” of a rule. Behavioral requirements can be expressed at very different levels of generality. A rule can be so general (the requirement that a person take “reasonable care” to avoid injury to others) that the whole panoply of subrules it entails are themselves generally referred to as rules (e.g. the rule requiring a property owner to take adequate precautions to prevent small children from falling into his swimming pool). I do not believe there is any way to “solve” this problem9494. Cf. Raz (1973), whose almost incomprehensibly complicated effort to solve the problem of the unit of “law” is ultimately, I think, unsuccessful (cf. n 90 above). One of the unsatisfactory aspects of his approach is the Kelsenite assumption that all (legal) rules are ultimately penal in character (prohibitions, with specified sanctions to be applied by a judge – Kelsen 1961Kelsen, H. 1961. General Theory of Law and State. Translated by A. Wedberg. New York: Russell and Russell.).View all notes – that is, any way of identifying the essential unit of a rule. Whether something is described as one rule or as a part of a rule or as many rules is simply a matter of convention and convenience: the observer does the characterization, it is not latent or inherent in the regulatory material itself. This conclusion requires that in comparative research, in particular, one be very careful to formulate the rules to be compared at a comparable level of generality.9595. See further §3.3.1 on the “quantity of law”.View all notes
The existence of a rule in a social group is what Durkheim calls a “social fact”, that is to say, it is a fact about the group. When can we say that R exists in a social group such as the New York garment industry (Moore 1973Moore, S. 1973. “Law and Social Change: The Semi-autonomous Social field as an Appropriate Subject of Study.” Law and Society Review 7: 719–746. Reprinted in Moore 1978. London: Routledge & Kegan Paul.), an Israeli agricultural settlement (Schwartz 1954Schwartz, R. 1954. “Social Factors in the Development of Legal Control: A Study Case Study of Two Israeli Settlements.” The Yale Law Journal 63: 471–491.), the tuna court of Tokyo (Feldman 2006Feldman, E. 2006. “The Tuna Court: Law and Norms in the World’s Premier Fish Market.” California Law Review94: 313–369.), or the farming community of a rural county in northern California (Ellickson 1991Ellickson, R. 1991. Order Without Law: How Neighbors Settle Disputes. Cambridge, MA: Harvard University Press.)? The matter is simple: to say that rule R “exists” in the group is the same thing as saying that the members of the group generally treat it as a binding rule of the group. And being able to say this means that one can observe – or could observe, if the question were raised – the moral argument and secondary rules required, in the group concerned, to establish the rule’s existence and proper interpretation.
The question what it means to say that a rule exists in a particular social group has received considerable (indirect) attention among ethologists who concern themselves with “moral” behavior among animals. There is, of course, a great deal of animal (and human) behavior that can be described in terms of regularities: the behavior normally occurs in particular circumstances, and in some cases is learned (e.g. a rat can learn to avoid food that once made it ill, or an ape to use a twig to get ants out of an anthill). In a more limited sense, there are apparently animals with behavioral expectations that are socially shared and that elicit remorse and sanctions when broken. De Waal’s9696. De Waal (1989de Waal, F. 1989. Peacemaking Among Primates. Cambridge: Harvard University Press.).View all notes findings on chimpanzees imply, according to Mackor,9797. Mackor (1997Mackor, A. 1997. “Meaningful and Rule-Guided Behavior: A Naturalistic Approach.” Diss., University of Groningen, Faculty of Law., 168–174).View all notes that chimpanzees have “social rules” because they follow learned, socially shared rules in their own behavior and in reacting to the behavior of others.
It is important, however, to go one step further and insist that a social rule can only be said to exist in a given group if it is a potential subject of reflection – of conscious thought about rules. If asked to explain their behavior, members must give the rule as a reason for it. And seeing the group’s rules as reasons for behavior implies that the rules could in principle be different: if there were not a rule against keeping one’s hat on in church, it would be OK to do so. A statement that simply warns of a danger (“No swimming: sharks!”), is only in the marginal sense of the way it is formulated a “rule”: it is not the rule but the sharks that are the reason for not swimming. Similarly, apes do not have a “rule” requiring the use of a stick to extract ants from an ant-hill. Such cautionary or how-to “rules” simply call attention to the natural constraints to which members of the group are subject. One does not really “follow” such a rule, one simply avoids unpleasantness or impossibility imposed, not by one’s group, but by the environment.
Furthermore, the applicability of even the simplest social rule to a concrete situation always requires interpretation of the rule and often the consideration of other rules as well (for example, those concerning justifications and excuses). Moral reasoning is necessarily involved both in following rules and in assessing behavior (one’s own or that of others) in terms of rules. The members of a group whose behavior is regulated by rules must thus be able to engage in moral argument about what the group’s rules are and what they require, and the observable fact that such argument takes place is part of the ontology of a rule.
Moral argument in turn implies that a group’s collection of rules consists not just of what Hart calls “primary rules” of behavior, but also of “secondary rules” – rules about the ascertainment, interpretation, application and change of primary rules – and it is this that makes social order through the governance of rules among humans so complicated.9898. Hart (1961Hart, H. 1961. The Concept of Law. (2nd ed. 1994). Oxford: Oxford University Press. Page references in this essay are to the 1961 edition., 89–96).View all notes
Crucial among Hart’s secondary rules is the “rule of recognition”, which specifies which rules are binding. In Hart’s view, it is the observable fact of acceptance of its secondary rules by a group’s officials that distinguishes “law” from non-legal social control. This seems wrong: a system of non-legal social control – without differentiated officials – will have secondary rules governing decision-making concerning its primary rules. For example, if there is a difference of opinion in a religious group over whether a rule requiring men not to wear hats in church applies in a given situation and what sort of informal sanctions are appropriate, participants in a discussion will appeal to much the same sort of considerations as do lawyers and judges: precedent, authoritative sources (e.g. texts, and the opinions of respected members of the social group), practical matters (e.g. how cold it is in the church concerned), whether the case is one for a differentiated “official” (priest or minister) to handle and so forth. In short, the validity, applicability and interpretation of the primary rules of both relatively undifferentiated social control and of a highly differentiated “legal” system is determined through reasoning in which appeal is made to a group’s secondary rules, and the validity of the latter is in both situations a matter of social fact: acceptance in practice. The difference between “informal” social control and “law” depends not on the existence of secondary rules, but on whether the group’s secondary rules recognize the authority of differentiated (“legal”) control.
Moral reasoning implies that those who engage in it can formulate rules in language and use language in the process of applying secondary rules to the interpretation and application of primary rules. Possession of a language that permits such moral reasoning therefore seems to me an essential condition for the existence of rules of behavior, and hence of social order, in a social group. I am unaware of evidence that chimpanzees engage in moral reasoning – that they can make, interpret, compare, apply and change their rules of behavior or contemplate the possibility of doing so. I am, therefore, inclined to deny that rules of behavior can be said to exist in chimpanzee social groups. The behavioral regularities observable among chimpanzees therefore, it seems to me, cannot be included within the scope of the sociology of law.
The foregoing paragraphs imply that in practice the existence of a rule in a group will rarely be a matter of all or nothing. In every group, some rules enjoy more general support and more effectively limit behavior than others; some have a more secure foundation in the group’s secondary rules than others. Many formerly effective religious rules – e.g. the rule among Roman Catholics prohibiting the use of contraceptives, or the rules among Muslims requiring specific clothing for women – may be losing support in (some of) their respective social groups. A rule that once was effective may, like an old soldier, not die but just fade away, so that the question whether R is a rule in a given group can be contested in the group itself and therefore pose problems for an external observer – problems that can only be dealt with by careful observation and precise formulation. New rules may similarly emerge in a more or less gradual way (e.g. social rules limiting the freedom to smoke). How widespread and vigorous the social support for a rule, and how effective a limitation of behavioral choice it entails, is a matter for careful observation, as we will see in the next section.
How can we know that R is a rule of behavior in a social group G in which we happen to be interested? Epistemology follows ontology: rule R exists in a social group if its formulation is recognizable to the group’s members,9999. If, as is often the case, R is not explicitly formulated as such in social discourse, a rule statement of the form “if X, then Y” can be constructed on the basis of discussions with group members and observation of actual social practice. Such a constructed rule must be recognizable to the members of the group.View all notes if the group’s members use R in social interactions, if R is accepted as a reason for behavior (rule-following, criticism, sanctioning, etc.), if the reactions authorized by R (and the relevant secondary rules) are accepted as appropriate by the group. In other words, R exists in G if behavior in G, in relevant respects, is observably different from what it would be if R did not exist. In short, the question whether R is or is not a rule in G, is the same sort of question as whether French is spoken in France, to be answered with the same sort of evidence. The proposition that R exists in G is falsified if R is in fact not generally accepted in G; if, when confronted by the proposition that R is a rule in their group, its members do not accept it as such and behavior in the group does not exhibit or reflect its use. The assertion that, in written French, all nouns must be capitalized (as in German) is easy to falsify by observing French practice. That some social rules may be contested is no different from the fact that there are always differences of opinion about peripheral rules of a language. In neither case is this a reason for doubting the real existence of a social group’s rules any more than of its language.
When social control is highly differentiated and secondary functionaries such as lawyers and judges are charged with identifying and interpreting a group’s rules, acceptance by these functionaries that R is a binding rule, and secondary behavior consonant with such acceptance, generally settles the matter. In the case of language, the secondary rules in some countries similarly make the decision of a differentiated authority definitive. Hence, in France, as far as the proper spelling of a French word is concerned, a decision by the Académie Française settles the matter; the secondary rules of English spelling are much less clear-cut and depend largely on the country one is in.100100. The most generally accepted secondary rules of English spelling seem to involve reference to the authors/publishers of “authoritative” (i.e. socially so considered) dictionaries: Samuel Johnson, the Oxford English Dictionary, Merriam Webster and so forth.View all notes
The matter can, of course, be rather more complicated than I have suggested. The question whether R is a rule in G, and in particular, what its proper interpretation is, can be contested. Dworkin has analyzed with unequalled sophistication how, in a situation of differentiated social control, the generally accepted values, policies and principles of G (knowable in the same ways as are the rules of G) determine for lawyers and judges the “right answer” to such a question.101101. Dworkin (1977Dworkin, R. 1977. Taking Rights Seriously. London: Duckworth.), discussed from this point of view in Griffiths (1978Griffiths, J. 1978. “Legal Reasoning from the External and the Internal Perspectives.” New York University Law Review 53: 1124–1149. Review essay on Dworkin 1977.); see further §3.2.4. Dworkin’s idea of a “right answer” is, of course, an internal one. For the sociologist, possible differences of opinion about the “right answer” are themselves important data.View all notes When maintenance of a group’s rules is undifferentiated, “legal reasoning” about the group’s rules proceeds among ordinary people in essentially the same way, making use of the same sorts of arguments. In either case, fundamental and insoluble differences concerning a group’s important rules will (ultimately) entail the dissolution of the group, often a gradual process (as in the case of the drifting apart of descent groups within families or of language communities). When maintenance of rules is differentiated and a group’s functionaries cannot satisfactorily settle disagreements about its important rules, a dramatic schism may ensue, as is the case from time to time in religions, states and so forth. Whether the split be gradual or abrupt, the epistemological puzzle gets simplified, the original “group” having ceased to exist.
In establishing the existence and specific contents of R in a group, individual-level variation among one’s informants is often almost irrelevant. If you want to know whether to drive on the right or the left in Indonesia, asking one Indonesian will generally suffice. Since knowing the applicable rules – whether written and differentiated (‘legal’) rules, or relatively undifferentiated social rules on subjects ranging from non-verbal interaction (such as staring at another person102102. See Reisman (1999Reisman, W. 1999. Law in Brief Encounters. New Haven: Yale University Press.).View all notes), clothing,103103. Clothing rules can be very complicated, depending on the time of day and the day of the week (e.g. Friday office informality), the occasion (parties vs. funerals), the message one wants to convey, the country one is in, one’s function and status, and so forth. Clothing rules can be both prescriptive (e.g. black – or, as in Ghana, traditionally red – clothing for funerals) and proscriptive (e.g. sumptuary rules).View all notes table manners,104104. See Elias (2000Elias, N. 2000. The Civilizing Process: Sociogenetic and Psychogenetic Investigations. Translated and revised edition; 1st German ed. 1939. Oxford: Basil Blackwell.).View all notes the division of labor in a household105105. See Ellickson (2008Ellickson, R. 2008. The Household: Informal Order Around the Hearth. Princeton, NJ: Princeton University Press.).View all notesand even “illegal” or immoral behavior such as “bribery”106106. A variety of more or less subtle rules serve, for example, to distinguish between a socially acceptable “gift” and an unacceptable “bribe” (see e.g. Smart 1993Smart, A. 1993. “Gifts, Bribes, and Guanxi: A Reconsideration of Bourdieu’s Social Capital.” Cultural Anthropology 8: 388–408., Darr 2003); cf. also Moore (1973Moore, S. 1973. “Law and Social Change: The Semi-autonomous Social field as an Appropriate Subject of Study.” Law and Society Review 7: 719–746. Reprinted in Moore 1978. London: Routledge & Kegan Paul., 725–728) on “fictive friendships”.View all notes – can be of vital social importance, all normal members of society have learned how to acquire such knowledge.107107. In “common-law” legal systems, and in situations in which the applicable rule is that of a (non-written) extra-“legal” source (e.g. custom, especially in situations where – as in colonial legal pluralism – the applicable legal rule can be part of the “customary law” of a “recognized” tribe or other indigenous group), judges are often confronted with the necessity of establishing the “existence” of a rule, and there is a considerable literature about how they should do this (see e.g. Woodman 1969Woodman, G. 1969. “Some Realism About Customary Law – the West African Experience.” Wisconsin Law Review 1969: 128–152.). Perhaps even more interesting is the problem of establishing that a rule once thought to exist, no longer does: the problem of desuetude (see Harvard Law Review[2006Harvard Law Review. 2006. “Desuetude.” Harvard Law Review 119: 2209–2229.] for an exhaustive discussion of this legal doctrine). Social scientists for whom it is important to establish the existence and precise implications of a social rule can learn much from the legal literature and judicial practice.View all notes
Knowing the rules of a group as an external, social scientific observer is not fundamentally different, although – especially when the group concerned is not one’s own – it does entail some methodological care. If you want to know what the rule on queuing is in, say Armenia, how would you go about finding out? The obvious first thing to do would be to ask someone with local knowledge, for example, someone standing at a bus stop. Or (for example, if you do not speak Armenian) you might simply observe behavior at a bus stop: is there a queue or just a random-looking mass of people? And what happens if someone who arrives later than others tries to get on the bus ahead of them? Do other people react negatively,108108. As Reisman (1999Reisman, W. 1999. Law in Brief Encounters. New Haven: Yale University Press.) makes clear, non-verbal exchanges can be important indicators of an underlying rule.View all notesremonstrate, invoke a queuing rule, either explicitly or implicitly (e.g. “I was here before you”)?109109. See Comaroff and Roberts (1981Comaroff, J., and S. Roberts. 1981. Rules and Processes. The Cultural Logic of Dispute in an African Context. Chicago, IL: Chicago University Press.) for a discussion of the ethnographic literature on the invocation of rules in dispute processes. From their data concerning the Tswana of Botswana, they conclude that “most arguments [in a dispute process] are organized with implicit reference to mekgwa le melao[Twsana law and custom]. The latter constitute the indigenously acknowledged universe of discourse within which meaningful debate proceeds and the assumptions upon which it is predicated, so that the very construal of allegedly relevant facts necessarily entails tacit allusion to rule. Explication is not required to make this apparent to an audience…. [N]orms are explicitly invoked by a disputant only when he wishes to question the paradigm elaborated by his opponent and to assert control over (or change) the terms in which the debate is proceeding” (Comaroff and Roberts 1981Comaroff, J., and S. Roberts. 1981. Rules and Processes. The Cultural Logic of Dispute in an African Context. Chicago, IL: Chicago University Press., 102 [Italics in original]).Observing and understanding such implicit references to rules requires a sound understanding of local meaning and context; the same is true of moral and legal discussion in every society. Compare, for example, Fallers (1969Fallers, L. 1969. Law without Precedent. Chicago, IL: University of Chicago Press.).View all notes What reaction does this produce (e.g. does the queue-jumper retreat sheepishly to the end of the line, does he seek to justify his behavior in terms of other rules, such as an exception in cases of urgency?) Finally, if the social group you are interested in has a system of differentiated control, you will look to see what position its officials take toward the queuing rule (e.g. which side of the dispute gets their support).
You will not necessarily take all of this talk at face value, but on the other hand, people will not on the whole invoke rules or interpretations of rules for which there is no local support: doing so simply will not get them anywhere. Here, however, you must keep a crucial caveat in mind: you may have stumbled upon an example of regulatory pluralism, the queue-jumper (and his supporters) may belong to a different subgroup from those who remonstrate with him – a subgroup, for example, with an idiosyncratic rule that men go first in such situations. If this turns out to be the case, your initial conclusion that there is a first come-first served queuing rule in Armenia will have to be qualified to the effect that certain subgroups do not share it, at least where different sexes are involved. Having done all this, you should know with some assurance what the rule on queuing is in the social group concerned.110110. Intuition – so long as its results stand up to intersubjective testing – is often a good research tool, at least in a social group with which one has some affinity. Such educated guesswork, informed by rudimentary ideas about human behavioral preferences, can come up with a plausible rule on a given subject for a particular social group, a provisional guess that one can then check by seeing whether an outsider’s formulation sounds plausible to members of the group (cf. Ellickson 2008Ellickson, R. 2008. The Household: Informal Order Around the Hearth. Princeton, NJ: Princeton University Press.). Fictional accounts of human interaction in the group concerned can be useful too, since in order to be believable they have to be ethnographically accurate.View all notes
But what about the normal methodological requirements for sociological research? If we really want to know what the rule is on queuing, don’t we need a proper survey of the population: how else can we know whether the population at large or – in the case of a differentiated social rule, lawyers and similar professionals – actually do “accept” the rule? The answer to this sort of question is: no. Rules – unlike attitudes, preferences, behavior and the like – are not individual characteristics but social facts. Most members of the relevant population will be familiar with the group’s most important rules. Just as mutually intelligible language would not be possible if there were not general agreement on the everyday rules, so social life in G would be anarchic (the “problem of social order” would be acute) if there were not the same sort of general agreement. Hence, when seeking to ascertain how one says “toilet” in Arcadian or how one asks for a woman’s hand in marriage among the Inuit, asking one “normal” member of the relevant population may often suffice, these not being matters of personal opinion.
Apart from a body of fairly simple and straightforward rules, about whose existence and contents there is rarely any serious problem (not for members of the group concerned nor for an external observer), most groups have some rules whose status or interpretation is more or less contested, or could be if an appropriate case presented itself. This fact of life raises difficult methodological problems, but these are for an external observer neither more nor less insuperable than they are for members of the group concerned. Dworkin’s analysis of “the necessary and sufficient conditions for the truth of a proposition of law”,111111. Dworkin (1977Dworkin, R. 1977. Taking Rights Seriously. London: Duckworth., vii).View all notes gives an empirical researcher the help he needs on how to proceed in case of doubt. Stripped to the bare bones and applied to the question at hand, Dworkin’s argument would be that when a group’s rule on a particular matter is not clear to everyone in the group, the participants in a conflict invoke the group’s principles to support their respective claims. The existence and weight of a principle is established by referring to the characteristic practices, rules and institutions of the group. Dworkin does not argue that the outcome of such a procedure is always noncontroversial, but he does claim that in a functioning legal/moral system there will in fact be sufficient agreement within the community on what counts as good or bad argument that, although different people will reach different judgments, these differences will be neither so profound nor so frequent as to make the system unworkable.112112. Dworkin (1977Dworkin, R. 1977. Taking Rights Seriously. London: Duckworth., 217).View all notes A social scientist would want to add, that where its normative order has proven unworkable, a group will generally be well on the way to extinction.
3.2.5. Regulatory pluralism113113. Cf. Griffiths (1986bGriffiths, J. 1986b. “What Is Legal Pluralism?” The Journal of Legal Pluralism and Unofficial Law 18: 1–55., 2001Griffiths, J. 2001. “Legal Pluralism.” In International Encyclopedia of the Social and Behavioral Sciences, edited by N. Smelser and P. Bates, 8650–8654. Oxford: Pergamon.) on legal pluralism.View all notes
What is more orderly, a jungle or a garden?114114. T. Flannery, quoting from “an Indian friend” in a review of a biography of Rachel Carson (author of the classic of environmentalism, Silent Spring). New York Review of Books, 22 November 2012, 23.View all notes
Even if we know what a rule is and how to go about establishing the truth of the proposition that R is a rule of group G, we are not done with the difficulties that rules give rise to when we give them their (inevitable) place in sociological theory. The problem is that, unless we restrict our attention to entirely “pristine” social groups (groups whose members are not members of any other social group) – a notion that for practical purposes will almost always be beyond the vanishing point115115. The problem is not just that essentially all social groups exist in an environment full of other social groups to which their members also belong, but that even a totally isolated group (if such a thing exists) will generally have sub-groups to which various of its members belong (based, for example, on age, sex, function and so forth).View all notes – we will always be confronted with “too many” rules. That is to say, every group’s members will also be members of a number of other groups, and the behavioral demands of these overlapping groups will often not be entirely consistent. The consequences of such regulatory pluralism for rule-following – and hence for sociology – are profound.116116. See Griffiths (2003Griffiths, J. 2003. “The Social Working of Legal Rules.” The Journal of Legal Pluralism and Unofficial Law 35: 1–84.).View all notes
The regulatory pluralism characteristic of social life at first sight looks very disorderly and it is in practice a major challenge for a serious researcher in the sociology of law. But before giving in to the urge to streamline social theory by factoring out social complexity, one should reflect on Flannery’s question (above). The idea that a single, exclusive system of social regulation is (or would be) more orderly than one of regulatory pluralism is comforting to legal positivists (among them, of course, lawyers, but also many social scientists), just as the idea that manicured gardens and “endless waves of grain” are more orderly than a jungle has its adherents. And the wish for a world of simple, uniform order seems often to be father to the thought that social life really is like that: that is, made possible by a single set of binding rules. But if by “order” we mean the sustainability of a self-regulating system, the jungle wins hands-down. Similarly, “orderly” social institutions are often not sustainable over time,117117. See in particular Scott (1998Scott, J. C. 1998. Seeing Like a State. How Certain Schemes to Improve the Human Condition Have Failed. New Haven: Yale University Press.), for the environmental disaster attendant upon “Prussian scientific forestry”, together with examples of a variety of social disasters resulting from similar efforts to impose uniform “order”. See also Luttwak (1979Luttwak, E. 1979. Coup d’État: A Practical Handbook. Cambridge, MA: Harvard University Press.) on the vulnerability of tidy, centralized political systems.View all notes whereas the resilience of pluralistic social order, over time and through catastrophic social disturbances (natural and man-made disasters, war and terrorist attacks), is sometimes astonishing.118118. See for numerous examples, Scott (1998Scott, J. C. 1998. Seeing Like a State. How Certain Schemes to Improve the Human Condition Have Failed. New Haven: Yale University Press.). See Solnit (2009), for an enthusiastic journalistic account of social behavior following disasters; compare the review of the social–scientific literature by Kaniasty and Norris (2004Kaniasty, K., and F. H. Norris. 2004. “Social Support in the Aftermath of Disasters, Catastrophes, and Acts of Terrorism: Altruistic, Overwhelmed, Uncertain, Antagonistic, and Patriotic Communities.” In Bioterrorism: Psychological and Public Health Interventions, edited by R. Ursano, A.Norwood, and C. Fullerton, 200–229. Cambridge: Cambridge University Press.) for a more sober and differentiated view of “social support” in the aftermath of natural or man-made disasters.View all notes
The foregoing remarks on the empirical status of social rules are rather general and rudimentary. Nevertheless, they seem to me sufficient for present purposes, that is, for making plausible the claim that rules exist and can be studied as observable social facts. The common notion that rules are things that inhabit a rarified “normative” sphere and that “existence” therefore cannot be predicated of them, has on closer analysis little to be said for it. Having got over that false obstacle, what remains are some truly difficult problems of operationalization for purposes of empirical research. These problems have hardly been discussed in the literature, even the best researchers seeming to make the opposite mistake of treating the rules they are interested in as empirically unproblematic.119