(2003) JLP 48: 1-84
THE SOCIAL WORKING OF LEGAL RULES
This paper is concerned with the question, ‘How and under what conditions do legal rules influence behavior?’ Focusing on legislated rules, it aspires to provide a prolegomenon to the formulation of testable hypothetical propositions in answer to the question.
The theory of social working of legal rules seeks to explain the direct effects of legal rules. Direct effects may be primary, when behavior implements the standard contained in the rule, or secondary, consisting of efforts by a person to secure conformity with the rule by another. They may be special or general. They may take place in the context of a trouble case or a trouble-less case.
The instrumental approach which considers a legislated rule as a tool for producing social change is sterile and based on untenable assumptions. The more promising ‘social working’ paradigm is a sociological theory which places the shop floor of social life center-stage, and seeks to understand the influence of legislated rules on behavior in terms of social organization.
The social organization of the shop floor can best be described and analyzed in terms of Moore ’s concept of the semi-autonomous social field (SASF). This is the fundamental locus of social control, being the source of primary rules of social behavior and of the social control capacity to enforce them. It is the fundamental social locus of secondary rules. Some secondary rules enable the SASF to legislate. Others are choice of law rules which are significant on the shop floor in determining whether external rules, including those of state institutions, are followed.
Mobilization of legal rules, in the sense of rule following in any of the variety of ways in which this is possible, is in effect another way of referring to direct effects. Complex secondary mobilization, a common and important possibility, occurs when an actor mobilizes a rule external to the shop floor as a reason for intervention in the arrangements for rule-following obtaining on the shop floor. Social control specialists, such as representatives of the state, may be involved in either proactive or reactive secondary mobilization of a legal rule, according to whether the initiative to act comes from the specialist or from others. Proactive secondary mobilization is rare in these instances. Mobilization presupposes that the actor is informed about the facts relevant to the applicability of the rule, its existence, and what it requires. The interpretation of the rule on the shop floor may differ from that of the legislator, as may the categorization of the facts which fall within the rule. Secondary mobilization by non-specialists involves intervention in social relationships primarily regulated by a SASF, by means of external rules mobilized by participants in those relationships. Therefore, even when the conditions just mentioned are satisfied, reactively mobilized external law has only a limited capacity to effect change. Secondary mobilization by specialists involves the same basic elements. The literature shows that the specialists, being themselves members of SASFs of bureaucratic organizations, largely categorize facts, and interpret rules and mobilize them in ways determined by these SASFs. Complex mobilization occurs when secondary mobilizers use external rules either as reasons to create local rules which are then followed irrespective of knowledge of the external rule, or as reasons to bring into existence local-level structures which accomplish behavior which is in conformity with the external rule without being rule-following behavior. It is society, not the legislator, that determines when and to what extent it is regulated by law.
The social genesis of a rule may determine its status in a local SASF, and so the extent to which and manner in which it is followed. Therefore a study of the social working of rules should include a study of their genesis, and in particular of the self-regulation of SASFs. What appears to be the making of new rules, and social change, may be no more than the mobilization of old rules. Self-regulation of SASFs appears again to be more extensive than regulation of social life by the state.