Architectures of Justice

Legal Theory and the Idea of Institutional Design

Henrik Palmer Olsen, Stuart Toddington

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317178897
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Law can be seen to consist not only of rules and decisions, but also of a framework of institutions providing a structure that forms the conditions of its workable existence and acceptance. In this book Olsen and Toddington conduct a philosophical exploration and critique of these conditions: what they are and how they shape our understanding of what constitutes a legal system and the role of justice within it.

Chapter 1

The Methodology of Eunomics

Part 1: Explanation, Critique and Human Interests

Lon L. Fuller used the term Eunomics to refer to his understanding of the type of sociological jurisprudence most appropriate to the systematic development of a theory of ‘Good order and workable social arrangements’. ‘Good’ order suggests a type of inquiry distinct from, if not a cut above, a concern with ‘mere’ social order, but implicit in this distinction is a methodological idea that requires some careful explanation.

At the core of the understanding of social science and of law, and of the relationship between the two, is the difficult idea that to understand a social institution, or even to be in a position to identify its existence, one must adopt an evaluative or judgmental perspective on the practical rationality of the activity in question. In Law In Its Own Right we devoted some time to a discussion of this controversial methodological point. Let us try to restate the position here with the benefit of some reflection and by way of a defence of Fuller’s suggestion that we should seek to incorporate the aims of Eunomics as the methodological basis of Legal Theory.

In, Law In Its Own Right in a section entitled ‘Conceptualising Society’1 we noted that the classical structuralist accounts of the subject matter of sociological investigation asked us to imagine the entire set of social relations as a system, and more precisely, a system of norms embedded in various types of institutions such as roles, practices, beliefs or authoritative conventions. Large scale institutional aspects of social action appear as vital and ubiquitous elements of the social system and hence form the central concerns of the structuralist analysis. Not all schools of sociology are happy with the label of ‘structuralist’, and even among those who might be, some would resist the broadly ‘hermeneutic’ or ‘interpretive’ account of normative structures that follows. Nevertheless, we have argued at length elsewhere that (a), some conception of a social structure is either explicit or implicit in all sociological analysis (even that which emphasizes the importance of symbolic and individual interaction),2 and (b), that ‘describing’ a normative system entails more than technical or instrumental judgments about practical rationality.

We are familiar in sociological texts and texts books3 with a traditional classification of method that separates ‘actionist’ from ‘structuralist’ schools of thought; and of the latter we might point to accounts of large-scale institutional phenomena (for example, the family, gender, education, work, power and politics) variously labelled as Functionalist, Marxist, and Feminist perspectives. Let us, then, take the phenomenon of gender purely as an illustration of the problem of constructing a genuinely sociological account of it. Gender undoubtedly has a biological dimension, but the extent to which biology determines gender consciousness, behaviour and inter-personal expectations, and the relationship between both gender and the technical division of labour, and gender and social power and authority, is highly contentious. By way of illustration, let us consider a simple but plausible account of the phenomenon of gender in the social structure. We might characterize the social organization of, for example, reproduction and childbirth, and the weaning of infants as a set of unproblematic empirical phenomena arising from the facts of physiology and biology. But this would overlook the complexities of historically and culturally conditioned forms of institutionalization of the role of females in the division of labour, and instead swiftly assume them to be natural facts explained by basic biological differences. But the energy or, as Durkheim says, the ‘external and coercive’ force of the social structure in maintaining and strengthening the accretions of normative expectations of gender roles in the division of labour is not a ‘natural’ or biological energy; it is a normative energy that resides in the individual and collective social consciousness.4 This is not to say that social consciousness about gender is not related to, or to some extent determined by, ‘natural’ or biological facts. Rather, despite the biology, the social system in general, and the organization of gender in particular, is a system of norms, and norms, broadly speaking, are made manifest in attitudes about what is right, good, useful, proper, decent, fair, and, ironically, ‘natural’ in relation to other attitudes, assumptions and speculations about what human beings are and what best serves their individual and collective interests. We do not have to accept wholesale a theory as uncompromising as, for example, Marx’s account of ideology and false consciousness to realize that sociological explanation must inevitably take the form of, or imply, a critique of the practical rationality of social institutions; we have merely to consider the possibility that normative consciousness might be susceptible to changes, alterations, – perhaps improvements – of orientation. This critical aspect remains, however, even if we wish simply to endorse the normative rationale of existing institutions. Let us pursue this line of thought a littler further.

Sociology – intentionally or otherwise – must dissolve the solidity of what appears to be ‘natural’ in the cultural, sexual, economic and political world. Gender roles (and all other institutionalized aspects of social organization) are exposed as ephemeral and mutable in the process of critique. We come to realize that institutions, taken as the focus of our cognitive interests as social theorists, exist not naturally and immutably as solid fact, but ideal-typically in the form of contestable normative assumptions. This does not mean, of course, that sociology has always automatically adopted, or must in future adopt, a revolutionary stance on the subject matter. Its impulse might be apolitical insofar as it expresses a concern merely to inquire and explain. But whatever the intentions of the sociologist, there are some inevitable critical commitments to be faced. Let us try and explain this by assuming that if sociological critique does takes the form of straightforward revolutionary contestation, it must in so doing explain first, the reason for the appearance of the solidity or naturalness of the existing configuration of institutionalized social relations. It must then offer a reinterpretation of these relations. This process of reinterpretation through the prism of a normative rationality (though historically unpalatable to ‘system theory’ in general and especially to some Marxist structuralists) is what is properly meant by an ‘interpretive’ or hermeneutic approach to sociological method. Despite the impressive etymology, in broad terms, an interpretive or structurally hermeneutic analysis will first show how and why, over and above the genuinely natural, physical, physiological and biological constraints of the situation, one set of norms has structured and perpetuated a particular set of social relations and expectations over another possible form of organization. Continuing our illustration, a simple (and perhaps accurate) example would be the analysis that concludes that women always end up looking after the kids because it serves the interest of men; and that men have the physical and economic power to safeguard and protect their interests at the expense of the interests of women or children. The analysis will then explain how we might bring alternative concepts of normative rationality to bear on the way we understand the phenomena: Perhaps, for example, men ought to re-evaluate their responsibilities in this regard enabling women to have a wider experience of economic participation. Critique has thus two phases: the first describes the existing normative phenomena, the second prescribes an alternative set of institutional relations. A great deal has been made of the distinction between prescription and description in social science, and the suggestion has been that, methodologically speaking, we might remain on the straight and narrow path by avoiding the former and sticking to the latter. It is fairly obvious however, that the even the so-called ‘descriptive’ phase is evaluative: it presupposes an insight into the real – or what are presented as implicitly more rational, more progressive, more egalitarian – interests of men and women. In short, imposing templates of normative rationality on unprocessed social phenomena boils down to making explicit or implicit claims about human interests and these claims are unavoidably ‘value-laden’ Some of these claims, such as, for example, that some individuals and groups ought to take into account and safeguard the interests of other individuals and groups, are straightforward moral judgments.

Methodological discussions about the disjunction between description and evaluation, or ‘description and prescription’, are euphemisms for the sceptical question of whether social science is or can be ‘objective’ about its subject matter. The idea seems to be that we might describe a situation (for example, our selection for illustration of the role of women in the economy) impartially and disinterestedly, or we might make all manner of subjective, ‘value-laden’ or ‘political’ judgments about it. The former attitude is, of course the one most routinely associated with a ‘scientific’ approach. But the question is not whether we ought to confine ourselves to description and avoid at all costs judgmental comment, the question is whether or not we accept or reject the claim that sociological analysis relies indispensably upon conceptions of human interests in the normative modelling of the phenomena it takes to be its subject matter. There may be many ways to do sociology, but if the broadly hermeneutic account is accepted, then the issue is not whether sociologists should be ‘descriptive’ or prescriptive’, it is, as we have seen, whether or not there is any point in taking a scientific approach to the discussion of human interests.

Eunomics, as Fuller understood it, aspires to differentiate Good Order from, presumably bad or defective forms of order, and, on anyone’s view of the social or natural world, there is nothing incoherent or illogical about this. There are forms of social order that through a structure of norms, create and perpetuate particular forms of economic, sexual and cultural relations. If one can accept that there are, in principle, alternative normative possibilities of the forms of social organization, then there might be more or less rational ways of describing our predicament and prescribing our options. This approach to the problem offers the prospect of coming to terms with what might usefully be understood as objectivity as opposed to subjectivity in social and legal science and we might thereby overcome the sterility of the so-called ‘fact/value distinction’ or the ill-conceived opposition of ‘description and evaluation’ in social science.

Social Norms and Legal Norms

Let us say a little more in this vein about the relationship between ‘social’ norms and ‘legal’ norms, and the implications of this distinction for understanding the similarities and differences between social theory and legal theory – especially Fuller’s conception of legal theory. Pursuing the illustration of gender, we can imagine a situation where it might empirically be the case that child care in a particular society is held to be the sole responsibility of females. Empirical accounts of social practices might confirm this, and empirical accounts of attitudes and beliefs might discover widespread acceptance of the naturalness or rightness or normality of this state of affairs. Assuming the complete absence of any formal legislation relating to the issue of the propriety of female child care duties, the social norms governing this aspect of the division of labour are, let us also assume, effective, accepted, and observed by all members of the society or the great majority. Let us also imagine plausibly that justifications for these arrangements are to be found in the common understanding of individual men and women, in religious teaching, in socialization strategies within the family or in wider educational institutions, and perhaps even in what passes in this hypothetical society for the ‘scientific’ practices of psychology, biology and perhaps, ‘sociology’. Where social norms are in operation, says Durkheim, transgressions attract a tangible response: negative sanctions in some form will accrue to the offender. Effective and operative ‘social’ normativity in this sense is not, therefore, ‘optional’, other than in the disingenuous sense that, if one discounts punishment, harm or loss accruing to oneself, any physically possible behaviour appears as ‘an option’. The interesting point is that this generic description of social normativity does most of the work required to describe legal normativity. In an attempt to differentiate the latter as a species of the former, the issue of codification, perhaps, could be raised; so too could the issue of recognized formal authority to promulgate the norms. But that fact that a norm is widely if not universally understood and observed seems to make the fact that it is not written down appear quite trivial, especially if codification is to be presented as a key criterion of the legal. And it would be a mistake to assume that ‘recognized authority’ to promulgate and endorse norms cannot be found to lie behind social norms: parental instruction, elders, the church, common sense, tradition, and so on undoubtedly have been and perhaps still are regarded as ‘authoritative’ sources. Furthermore, if we turn this inquiry into norms towards the language of obligation, we find an even greater blurring of the social and the legal: the bodies that we routinely do recognize as formal sources of legal ‘authority’ are often accused of a variety of inadequacies in this regard. The message is often that the norms promulgated as law, and thus attracting legal sanctions and penalties for transgression, often lack the moral, commonsensical, or utilitarian substance to command genuine compliance and support. This ‘lay’ or popular criticism of law, we must note, arises from a body of informal normative attitudes or ‘social’ mores that operate behind, alongside or despite the intrusion into social life of ‘legality’. Here is a good example, then, of a common situation where...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Series Editor’s Preface
• Acknowledgments
• Introduction: Fuller, Gewirth and the Idea of Eunomics
• 1 The Methodology of Eunomics
• 2 Means, Ends and the Idea of Freedom
• 3 The Politics of Affirmative Freedom
• 4 Natural Law, Sovereignty and Institutional Design
• 5 Why ‘Pluralism’ Fails a Pluralist Society
• 6 Obsolescent Freedoms
• Epilogue: Equality, Diversity and Limits to Social Freedom
• Author Index
• Subject Index