The Social Construction of Legal Norms
Legal norms are an invention. In this talk, I want to advance an account of the kind of invention that they are and how they are similar to and different from other sorts of norms, and specifically other social norms and moral norms. The idea is to place legal norms in a larger framework for analyzing institutional structure derived from work on institutional agency and to see them as having the same fundamental ontological and normative significance as other norms grounded in the description of organizational structure—adjusting only for their place in relation to other social norms of that type. In a nutshell, I will argue that legal norms are special variety of norms deriving from (i) the adoption of a basic set of institutional roles for a group that (ii) make provision for roles in which authority is invested to make policy within the framework of the institution. The norms governing the roles in the institution derive from the functions associated with the roles in its formation and the additional constraints and duties assigned by way of the institution’s mechanisms for issuing policies.
The roles are status roles. Status roles are a specific variety of status function. Status functions are functions that items have in social transactions which they can serve only in virtue of having been collective accepted as having those functions—like being a royal seal or a five pound note. Membership in an institutional group is a status role defined by the nature of the group. Status roles within an institutional group are typically further differentiated into an organized pattern of inter-defined roles. The roles are inter-defined in the sense that the function of each is defined in relation to interactions with others functioning in their roles. The persistence of a stable institution over time consists in the successive occupation of the organized pattern of roles that define it by successive waves of agents.
The function of status roles in social transactions requires their possessor to intentionally exercise her agency in the role as appropriate. The concepts of rights and duties associated with a role, and hence norms relating to it, derive from their design functions. The point of calling them rights and duties arises from the recognition that human agents in the roles will not always successfully executed the functions associated with them. The design function is then a regulative ideal. This aspect of our understanding of them is captured in the language of rights and duties. The design function provides a norm with respect to which to evaluate the agent with the role and rules directing and constraining action in the role. The authority of these rights and duties over individuals in these roles derives from their being party to the collective acceptance by which they are maintained. The policies may be enforced by mechanisms that involves forms of coercion in the interest of maintaining a stable and well-functioning institution, but these mechanisms provide external reasons for adherence to the norms, and are not a source of authority (cf. POWs). There may be moral reasons for adherence to the norms as well, but if so these are external to the concept of the rights and duties associated with the role in virtue of its definition.
Legal norms are special case in that they are derived from the basic institutional framework in a society as a whole within which all other agential activity takes place and the rules promulgated by its policy making bodies (roughly those who contribute to making law and fixing its interpretation), which by design are to take priority over other social or group policies. This is compatible with making provision for a hierarchy of relevant policy making bodies recognized by the highest level as having authority with respect to more limited geographical regions or subpopulations in the society that have a function of providing a framework of social life and which take priority over other social policies and practices, though still constrained by laws promulgated at higher levels (city, county, state, nation—and similar hierarchies of government). Thus, legal norms are socially constructed, the authority they have derives from the acceptance by those they govern of the roles thereby defined, and the coincidence of legal and moral norms or the generation of moral norms from legal norms is a matter external to the status of those norms as legal.
The Abilities and Duties of Non-agentive Groups
Who is able and obliged to prevent catastrophic global warming? A tempting answer is ‘all of us together.’ I argue that answer is half-right and half-wrong: non-agentive groups have abilities, but they cannot bear duties. To find the duties relevant to global warming, we must look to the individual members of humanity and the agentive groups they constitute. This conclusion reflects the different roles these concepts play in our interpretations of the world: ‘ability’ concerns what’s possible via agency; ‘duty’ concerns action-guidance.
In times of a “crisis of democracy” and the failure of politics to respond to urgent societal problems, we need to reassess the relation between political ideals and political functions. Liberalism focuses on individuals’ rights, but it has been criticized for neglecting their duties in upholding the structures of a free society. Republicanism focuses on the equal standing of citizens and on the common good of the polis. As such, it is better able to grasp the tasks and responsibilities that are necessary to keep up a free society; but it has often remained abstract. What is needed is an approach that takes into account the concrete social, cultural and technological conditions under which citizens need to act.
In this talk, I suggest “republican functionalism” as a framework for thinking about the tasks and responsibilities of citizens. Republican functionalism asks which functions are needed, in complex, modern societies, to uphold citizens’ freedom and the institutional structures that can prevent domination. It thus widens the scope of “the political” to include the responsibilities of citizens in various functional roles. I defend this approach against some misunderstandings and objections, and contrast it with a neoliberal approach that relies mostly on markets for social coordination. I then illustrate the approach of “republican functionalism” by looking at a specific challenge that democracies encounter today: the way in which they deal with forms of knowledge that are relevant for policy making. In order to keep up the “primacy of politics” over the economic system, the question of which forms of knowledge are conceived as private or public goods is crucial.
A sustainable institution meets three desiderata: it is strong, valuable, and just. Strong institutions are resilient: they are able to survive internal challenges as well as external shocks. Whether and how resilient an institution is, depends primarily on the social norm that it involves. This, in turn, is not only a matter of its sanctions, but also of the weight that its participants attribute to that norm. Strong institutions are typically regarded as legitimate. Institutions create value by generating collective benefits. Norms support this process by reinforcing coordination or enabling cooperation. When the value of an institution is measured in terms of such collective benefits, it is effectively equated with preference-satisfaction or subjective-value creation. From a more detached perspective, it is a matter of whether it secures more objective values such as safety, health or solidarity. Finally, institutions also have a dark side: they do not only include but they also exclude; they do not only advantage, they also oppress. As this holds for all institutions, a third and final requirement of sustainable institutions is that they must be just.
Categories We Live By
We are women, men, and queers. We are refugees, people with disabilities, and immigrants. We belong to social categories. But what is it to belong to a social category? What is it, for example, to be a woman or an immigrant? In Categories We Live By Ásta offers a theory of social categories, how they are constructed, and how we belong to them. In the talk she will give an overview of the book with a special attention to the notion of social construction and its use in the construction of sex and gender.