John Griffiths
Sociology of Law, Faculty of Law, University of Groningen, Groningen
3.3. Rules as dependent and as independent variables
In the sociology of law, as in every science, “explaining” something involves showing that it is a concrete instance of a general relationship between two (sets of) variables. A theory about something – the “dependent” variable – explains its value as the consequence of the value of one or more “independent”’ variables.
The distinction between the dependent and the independent variables of a theory can be used to distinguish between two approaches to the sociology of law. On one approach, “law” is the dependent variable and what one seeks to explain is the observable variation in one or another of the “manifestations of law”.120 Such a theory might seek, for example, to account for differences between the rules of different social groups or for changes over time in the rules of a given social group. Another sort of theory treats law as an independent variable and seeks to explain, for example, the effects that one or another legal rule has on social life.
3.3.1. Rules as dependent variables
Theory that affords an explanation for the variation in the rules that can be observed in social groups is a very underdeveloped part of the sociology of law. In its underdeveloped state, it consists of two aspects: the quantity of rules and their contents.
3.3.1.1. The quantity of rules
The simplest sort of variation in rules would seem to be their quantity. Black includes the number of rules within his general conception of the “quantity of law”.121 A similar quantitative approach is implicit in the popular idea that modern social life is suffocating from a “flood of norms”.122 A serious difficulty with the idea that the number of rules in a social group can be measured is that it presupposes that there is something like a unit of regulation. In fact, however, the rules of a social group tend to have the character of a “seamless web” so that it is hard to draw the lines that separate one rule from those adjacent to it: “Thou shalt not kill” is surely as close to a unit as one could get, but a moment’s reflection leads one into a thicket of possible justifications (self-defense, justifiable cannibalism, euthanasia), problems of causation (withdrawal of futile life-support), the extent of responsibility for non-intentional (e.g. negligent) harm and complications such as the duty to rescue. In short, the idea of measuring the “quantity” of rules seems, except in the simplest and most artificial case (e.g. a game such as Monopoly), doomed to failure.
3.3.1.2. The content of rules
Variation in the content of rules over time or between social groups has always attracted a great deal of attention, from everyday seat-of-the-pants speculation to elaborate empirical studies. But despite its obvious importance, and occasional bold theoretical efforts,123 there is little by way of serious theory concerning the content of rules. Differences and change in “moral” rules (e.g. concerning abortion, divorce, homosexuality, smoking and drinking, relations between the sexes and between adults and children) have over the last few decades been striking, but little in the way of satisfying explanation seems to have emerged so far.
One of the few examples of successful explanation for (changes in) the content of rules concerns the institution of property: socioeconomic circumstances are often thought to be important.124 Thus Demsetz argues that exclusive territorial rights to hunt beavers arose among North-American Indians when the European demand for beaver pelts threatened traditional open-access hunting grounds with decimation of the beaver population.125
Well-known approaches to the explanation of legal change include diffusion, transplantation and evolution.126 But such “explanations” generally boil down to little more than a retrospective description of the process of change and to have little explanatory value as to its substance.
It is sometimes possible to see normative change in a social group as a new use of existing normative resources. “Rule-making”, closely examined, can be a matter not of creating something new out of nothing, but rather of the application to a specific situation of a pre-existing more general rule. I once described how a very specific rule among a small group of doctors in an intensive care unit – withdrawal of treatment considered “futile” should be made at such a time that the patient dies on the responsible doctor’s shift – emerged out of a conflict in which one of the doctors was accused in effect of not having “cleaned up his own mess”, thus violating a far more general rule that goes back to everyone’s childhood.127 More generally, the use of secondary rules in dealing with primary rules often gives rise to what can be considered a “new” primary rule. The phenomenon is obviously very interesting – although it, too, renders the idea of a “quantity” of rules, discussed above, problematic.
Much of the serious attention to legal change has concerned legislative change and in particular the associated political processes. Often, as in the case of changes over the past few years in (legal) rules concerning smoking, what requires explanation is not so much the content of a new rule – this having often been anticipated in changes in non-legal rules concerning the same behavior – as, rather, the change in the level of differentiation in the maintenance of a social rule that acquires “legal” status.128 One fruitful way of explaining legislative rule change is in terms of the decision-making structure from which it emerges. Thus Weyers explains the legalization of euthanasia in the Netherlands, Belgium and Luxemburg – but so far nowhere else – in terms of the “political opportunity structure” characteristic of a given political system. This approach enables her to predict which European countries are most likely to legalize euthanasia in the near future.129
3.3.2. Rules as independent variables130
A second, much more prevalent approach in the sociology of law treats rules as independent variables. How much of behavior, of social life and of social change can be explained by the fact that social groups have rules and that people follow these rules?
3.3.2.1. Direct vs. indirect effects
Dealing with these questions requires a distinction – generally overlooked in the literature on the “effectiveness” of legal rules – between “direct” and “indirect’ effects”.131 The behavior required by a rule – when it occurs and the rule is responsible for it132 – constitutes the rule’s “direct effects”. But literal conformity is not the only way that a rule can be said to have direct effects. People may adapt their behavior to the existence of a rule even when they are breaking it, as in the case of a bicyclist who pays extra careful attention when biking the wrong way on a one-way street. Avoidance is another possible direct behavioral effect: a tax rule, for example, can make a particular sort of behavior especially costly and hence induce people to choose alternative sorts of behavior that are not subject to the rule. The lowest common denominator of all direct effects of a rule is that the behavior to which the rule is addressed be different from what it would have been in the absence of the rule. All of this I refer to henceforth as “rule-following”.
The “indirect effects” of a rule are the consequences of the rule’s direct effects – the consequences, that is, of rule-following. A hoped-for indirect effect of rules banning smoking in public places is a reduced incidence of lung cancer and other diseases, in particular among non-smokers (“passive smokers”).133 It is the indirect effects of rules that people interested in the “effectiveness” of regulation (legislators, social scientists and so forth) are concerned with, direct effects in themselves ordinarily being a matter of indifference: except in the case of the “enforcement of morals”, even the worst sort of rule-breaking is usually only considered reprehensible because of its indirect effects.
As I have argued elsewhere, the “instrumentalist” project in the sociology of law has inevitably proven to be a disappointing failure because it requires two sorts of theory: a theory of rule following and an infinite number of “policy theories” which tie direct effects to indirect effects for every possible subject of legislation: one theory for the relationship between drinking and driving safety, another for the relationship between tenure arrangements and the sustainable use of agricultural land or fishery resources, another for the relationship between the reporting requirement for euthanasia and the effectiveness of societal control over such decisions, yet another for the relationship between legal form and the functioning of state enterprises, etc. ad infinitum. Since no general theory of indirect effects is possible, it is not surprising that the instrumentalist tradition has never produced one.134
In short, the relationship (if there is one) between the direct effects required by a rule and the indirect effects that are supposed to follow is different for every different subject of regulation and is not a legal or sociological matter but one of some mixture of psychology, medicine, engineering, economics, physics and chemistry, and so forth.
3.3.2.2. The effects of rules on behavior
Direct effects – rule-following – are usually merely a means to an end, for policy-makers not in and of themselves interesting. Nevertheless, since, as we have just seen, no general theory of indirect effects is conceivable, and since the production of direct behavioral effects by a mere rule is in fact highly mysterious, it is to the direct effects of rules – to rule-following – that the sociology of law must address itself. How is it possible that a rule could influence behavior? We can distinguish at least three ways.
In the first place, an actor can avoid behavior he has been taught or has learned from experience – directly or vicariously135 – to associate with a “pattern of sanctions”136 (more accurately: pleasant or unpleasant social experiences of one sort or another). A large part of the socialization of young children takes place in this way (and in this case, interestingly, the sanctions often consist, at least partly, of rewards, as in the case of toilet training). An actor will often “internalize” a rule, so that his own behavioral inclinations are the same as those required by the rule;137 in such a case, the rule itself will be far in the background of the actor’s awareness, although he or she should be able to identify it if asked.
In the second place, if an actor knows or is informed or reminded138 of the existence of a rule, he may adjust his behavior to it more or less automatically, without much thought and in the absence of any particular perceived risk of sanctions. He follows the rule because he has learned that it is generally a good idea to follow rules – a way to secure positive or to avoid negative reactions – and doing so more or less automatically saves him from having to think about the matter further. A rule is in such a case a social signal to which the actor has learned to respond in the appropriate way. A small sign on a church door asking gentlemen to take off their hats illustrates this possibility.
In the third place, if an actor knows or is informed or reminded of the existence of a rule and the associated positive or negative sanctions, this information may affect the relative eligibility of various available courses of conduct. A rule is in this case a way in which information concerning certain costs and benefits of behavior is summarized and communicated. Often, as in the case of rules that serve to coordinate behavior (such as right-of-way rules in traffic), conformity to a rule brings benefits quite apart from avoidance of the social sanctions attached to breach (for example, a reduced risk of being involved in an accident).
It seems likely that rules in all three possibilities play a role in a full account of the social working of rules. People follow rules because they have internalized them, they are inclined to follow rules generally because they have learned that doing so is advisable, they follow rules because of the effect rules have on the perceived costs and benefits of behavioral alternatives. All this rule-following is the foundation of social order.
3.3.2.3. Learning (how) to follow a rule
It is easy to say “people follow rules”, but what exactly is involved? How is it possible that having internalized or upon remembering or encountering a statement of a rule, people can exhibit socially appropriate behavioral responses – that is, follow the rule? Homans (1950) provides the clue to an answer with his observation that both making (often implicit) statements about rules (“I think I was next” to a fellow customer waiting to be served) as well as responding to such statements in the socially appropriate way (waiting one’s turn), are learned behavior. How can we suppose this sort of learning to take place?
Essential to behavioral learning is the general element in the learned response. The chicken in a behaviorist’s experiment learns to peck not just this red button but all more or less similar red buttons. The sorts of experiences from which an animal learns, the degree of generalization of what is learned, and the complexity of the learned response are presumably to a large extent biologically given for every sort of animal. Rats, for example, are said to learn very quickly from smells and to generalize from one bit of food with a particular smell that once made them sick, to all things with the same smell – which they do not eat. The learning involved is quite sophisticated, since the sickness may be at some temporal remove from the original eating. The survival value for a rat of this ability is obvious (and is daily evidenced in the difficulties exterminators are said to have in poisoning rats139). Other animals can learn highly general and complex responses. Thus sheepherding dogs, for example, are bred to be able to learn wonderfully complicated and creative responses to simple commands.140 You can teach such an animal to do things you could never teach a chicken, for example, to do.
Human beings are capable of learning from a wide variety of sorts of experience (including, most importantly for our purposes, verbal communication), at a very high degree of generality, and of very complicated learned responses. There is no apparent reason why such an animal should not be capable of learning to respond in the appropriate way to rules – that is, to exhibit the required behavior in response not only to a specific situation it has learned how to react to (as does the chicken or the rat), nor in response to a specific command (as does the sheepdog), but when confronted with the situation specified in a rule it has learned. Once it has learned how to follow rules in general, if you tell it that people in the Netherlands expect you to bring flowers with you if you are invited to a dinner party, then even if it has never heard that rule before nor ever been sanctioned for not bringing flowers, nor ever seen anyone else so sanctioned, and even if it has no idea what the local sanctions might be, such an animal should be able respond appropriately to the situation of being invited out to a dinner party in the Netherlands. It is a matter of everyday experience that human beings in fact are capable of this sort of rule-following.141
The ability to learn rules from verbal communication, and to follow rules generally without having to learn separately to respond appropriately to the situation specified in each individual rule, enormously increases the possibilities of social order. Having learned to follow rules, human beings can follow not only primary rules of behavior, but also secondary rules about rules. It is the ability of human beings to follow rules about rules that makes differentiated social organization (government and other institutions; law) possible. This is the stuff of which the whole elaborate superstructure of legal order (the legal corpus, legal institutions, legal reasoning) is made.
3.3.2.4. The social working of rules
The discussion so far has focused on rule-following by individuals. But knowing how rules can be followed does not yet give us a full answer to the question, how to predict and explain the direct effects of rules. This is because, while rule-following is a matter of individual behavior, the factors that influence it are largely social. These factors include whether an actor learns about the existence of a rule; how the actor’s social surroundings use the group’s secondary rules to assess the relevance and proper interpretation of the rule and of possible justifications and excuses; and whether – in circumstances of legal pluralism – there are countervailing rules and if so what their relative weight is. As I concluded a few years ago:
The social working of law depends on the mobilization of legal rules…. [W]hat people do with a legal rule largely depends upon the secondary rules that obtain on the shop floor of social life. SASFs [‘semi-autonomous social fields’, that is, social groups] on the shop floor are the primary locus of moral training and orientation; they are the prime source of information about legal and other rules…; they are the source of the social secondary rules which govern rule-following…; they dominate the process of arriving at a definition of the situation; they determine the costs and benefits of mobilization; they resist or support the application of external law to internal relationships. And they invest vastly more resources in all this social control work that even the most totalitarian state can usually achieve. In short, it is not the legislator who determines when a legal rule will be followed in social interaction. It is society that determines when and to what extent it is regulated by law. And it does this in a highly self-regulated way.142
3.3.2.5. Social order through learned rules
In short, while there are certainly many aspects of the phenomenon of social rules and their social working that are not sufficiently understood, the basic idea – what rules are, how they can be learned, and how they are followed – does seem potentially capable of giving an empirically well-founded answer to the problem of social order. The attractions of a theory of the social working of rules are:
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– that it can deploy a coherent conception of a rule of behavior and its relationship to behavior;
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– that it permits a generous separation between actual sanctions and learned responses;
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– that it does not assume a simple or “deterministic”143 connection between rules and behavior;
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– that it treats the constitution of social order at the macro-level as a matter of more than mere aggregation of individual behavior – that is, as a matter of social rules;
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– that with the help of the idea of “secondary rules” it explains the way in which “primary” rules are used in social interaction, as well as the genesis of new rules, in the same terms used to explain the social working of “primary” rules: as the result of rule-following;144
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– and finally, that it treats the social working of rules as something that – in circumstances of legal pluralism – is itself subject to social regulation.
All this is, of course, especially complicated in the case of highly differentiated social order. Nevertheless, however small or huge a group, and however undifferentiated or differentiated its social order, human beings manage to identify the valid rules of groups – their own and other groups – all the time, and – to return to the question discussed in Section 3.2.4 – there is no reason why a careful social scientist ought not be able to do so, too.
3.3.3. Is a choice between the two approaches inevitable?
Most sociologists of law have a preference for one or the other sort of theory – for treating rules as dependent or as independent variables – or they switch opportunistically back and forth. If the choice is a conscious one at all, the reasons for it are seldom articulated. Thus someone might study the process of legal change concerning euthanasia one day, and the next day seek to establish to what extent medical practice is influenced by the current rules, without paying much attention to the fundamental difference between the two questions. Does this mean that the sociology of law is a sort of scientific hodge-podge, similar to a discipline of geology which included explanations both for the existence and location of deposits of coal or oil, as well as for the influence of coal and oil on social life: war, global warming and its social consequences, economic growth and so forth?
Black thinks that is the case, and he is one of the few sociologists of law who has thought carefully about the matter and has adopted a consistent position. In his opinion (as we have seen in Section 1145), every science is defined by its dependent variables. Sociology of law, he argues, is the science that seeks to explain “law”, in particular its “quantity”. Whatever influence law may have on other things is, in his view, no part of the sociology of law, any more than geology concerns itself with what people do with coal and oil.
However important Black’s insistence on the fundamental difference between the two sorts of theory may be, and however clearly he articulates his choice for theory in which “law” (in his sense) is the dependent variable, in the end his position is untenable. It is of course true that one must not identify a rule with the behavioral effects it prescribes, among other things because a rule can be violated without thereby bringing its existence into question. But a concept of law (or, more generally, of social rules) in which the effect of rules on behavior played no role at all, would be empty. Social talk about rules would be a strange sort of ritual interaction without apparent social utility. That Black writes confidently about “policemen” and “judges”, of “governments” and “law”, seems to show that he does not appreciate the full ramifications of his radical position.146
The relationship between rules and their effects is complex and this fundamental fact must lie at the heart of theory in the sociology of law. Rules must, in sociological theory, always be seen as both dependent and independent variables, and it is high time that sociologists of law give explicit attention to the theoretical complexities to which such a reciprocal relationship between rules and rule-following gives rise, and in particular to the crucial role that secondary rules and legal pluralism play in the social working of rules (“legal” or otherwise).