The Social Construction of Legal Norms

Legal norms are an invention. In this chapter, I 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.