Naturalism and Agency in the Living Law

Jeremy Webber

There is a common tendency in some branches of the sociology of law – especially in the literature of legal pluralism – to see social norms as being deeply rooted in patterns of human interaction. There is some variation in how this relationship is described, but many approaches speak of norms emerging from social interaction in a manner that suggests 1) that any prolonged human interaction tends to generate norms; and 2) that this occurs spontaneously rather than through deliberate human action. Indeed, the temporal ordering I have suggested here – interaction occurring first, with norms then being generated from that relationship – may understate the connection posed by some theorists. Some treat norms as being virtually coeval with any peaceable human relationship.[1] On this view, any ordered interaction implies the simultaneous existence of norms in the same way that the physical constitution of an organism presupposes its skeleton. There is a strong implication of necessity, then, in such visions of normative orders. A normative order is considered to be a natural dimension of any human interaction, generated through the day-to-day business of human life, perhaps even definitional of the existence of society.

The tendency to present norms as emerging naturally out of human interaction also typically presents a society’s normative order as non-contentious. A normative order consists of those rules that the members of society recognise and obey. The norms are not the result of argument and imposition; they are inscribed in members’ conduct. Implicitly, then, these approaches align with theories of social organisation based on consent. The parties may not have deliberately chosen the norms by which they are governed, but they have internalised those norms, living them. The socially-grounded law is portrayed as a unified and harmonious body of norms, highly adapted to a particular social milieu and exempt from disagreement and contention. It is not so much that disagreement is denied but that it has no point of entry into the theory. The law is given directly by social interaction, not by processes of human debate and decision-making. Processes that maintain the normative order are conceived as mechanisms for the enforcement of pre-existing rules, not as devices by which the content of those rules is itself determined. Not only does this distort the nature and role of those processes (as I discuss below), it also opens up a deep gulf between social law and the state’s law. The former is natural, consensual, communal, and conflict-free; the latter is artificial, coercive, peremptory, and conflict-ridden.

In this paper, I want to defend a view that all law – non-state law as well as state law – is inherently non-consensual, that it is always to some extent peremptory and imposed, establishing a collective position against a backdrop of deep-seated normative disagreement. All legal orders, of whatever kind, have to have mechanisms for fashioning these collective positions out of the welter of disagreement. This does not undermine the key insights of the theorists of the social law, but it does warn us against the tendency to treat the social law as natural, as emerging harmoniously from practice. Instead, it insists on the existence of contestation and dissent and focuses attention on the means by which contestation is settled. In so doing, it emphasises the sources of dynamism and change in the law and provides a foundation for the more nuanced comparison of, and examination of the interaction between, state and non-state legal orders.

I will explore these questions specifically in relation to Eugen Ehrlich’s Fundamental Principles of the Sociology of Law,[2] examining the extent to which he falls prey to the naturalising fallacy. As will become clear, I believe that he falls into this danger in crucial parts of his argument – although in drawing attention to those failings I don’t mean to deny the great force of his accomplishment in emphasising that law is intimately entangled in social interaction more generally. On the contrary, I accept his foundational insistence that we focus our attention on how law is lived in day-to-day interaction and that we examine the close structural relationship between state law and other forms of social normativity. My argument is that we understand those dimensions best when we take normative disagreement seriously. Indeed, the very essence of law – and of normative orders generally – involves the fashioning of an emphatically social outcome in the face of disagreement.

Precisely because I share Ehrlich’s concern with the relationship between state law and other forms of normativity I will generally avoid the term ‘law’ when presenting my own views, referring to ‘norms’ or ‘normative order’ instead. For many legal theorists, especially those influenced by legal positivism, ‘law’ is necessarily and indissolubly tied to the state. The application of the term to norms produced by other mechanisms therefore prompts an immediate and dogmatic objection. I want to sidestep that stumbling-block. I do not deny that the involvement of state institutions makes a difference to our analysis of the legitimacy, salience and means of operation of norms. (Although it is often too simple to say that the difference flows merely from the fact that the norms are ‘state norms’: it is generally necessary to examine what kind of institution has produced them by what means – legislature? civil service? courts? specialised administrative agency? Their scope of application, means of enforcement and even legitimacy will vary depending on the precise way in which the state is implicated. Moreover, if there is considerable mobility between non-state and state norms – if, for example, state institutions draw their standards in part from the activities of trade associations or from largely self-regulating professions, or depend upon non-state means for their enforcement – the very task of establishing the line between state and non-state norms can be challenging). But even granted that it is important to distinguish between state-sanctioned and non-state-sanctioned norms for some purposes we still need to preserve a space for comparing different modes of social regulation and for examining the interconnections between them, as Ehrlich does to such illuminating effect. That objective is sometimes best achieved by treating state and non-state norms as species of a single genus. That is what I do in this paper. Indeed, my primary purpose is to establish that non-state norms share a fundamental characteristic with state norms: they all confront the fundamental problem of how to establish a common standard in the face of pervasive normative disagreement.

But is this just a straw man? Surely any scholar of law – jurist, sociologist or anthropologist – will acknowledge that in any real society opinions about norms vary and that any system of social regulation must possess ways to settle these disputes. The anthropological literature – on which legal pluralists rely – is replete with descriptions of authority, disputation and dispute resolution in non-state orders.

This is true, but nevertheless the temptation to naturalise non-state orders, portraying them as actuated by a unified set of beliefs, is a real one, well worth recognising and guarding against. Such a tendency is common, for example, in anthropological accounts that seek to describe the internal rationality of normative orders, especially accounts that try to establish the distinctness and integrity of those orders in comparison to other ways of organising social life. Often the author wants to defend a subaltern order against a dominant one, and this increases the temptation to minimise internal disagreement and emphasise cohesion. This can be true of hermeneutic approaches, which seek to explain social norms in terms of a comprehensive and internally consistent world-view. Clifford Geertz’s work, stimulating though it is, is vulnerable to this criticism. He acknowledges complexity especially in the existence of legal mixité (in one striking passage he notes the many legal traditions present within Ethiopia and argues for an ‘abnormal’ or ‘nonstandard’ discourse to deal with it).[3] But it is difficult to see how this fits with his primary emphasis on the internal rationality of normative world-views. One suspects that, for Geertz, legal mixité primarily serves as a source of disorder and destabilisation in relation to world-views conceived in much more consistent and unified form. For Geertz, disputing mechanisms are primarily means to re-affirm, elaborate and defend the internal rationality of the order. They tend to take the latter as given, not as something that has to be made and remade through the agency of social actors, as this paper will insist.

Indeed, we can fall prey to the temptation to minimise conflict and to naturalise social orders whenever we try to describe those orders primarily in terms of their substantive content. This is, of course, a common approach in ethnography, where one sets out to describe the beliefs and concepts of a particular culture. It is also very common – indeed standard – in the general run of doctrinal literature in Law, which seeks to present a rationalised, systematised, coherent and comprehensive understanding of an area of the law.[4] There is good reason to attempt accounts of content: broad differences certainly are apparent when one compares different normative orders; differential content determines much of the texture of day-to-day life in those societies; and in its broad lines, that content may have stability and resilience through time. But we should never lose sight of the fact that those portraits are simplified, tidied-up versions of the contexts they purport to describe. To adopt a phrase commonly used by lawyers, they represent the ‘best view’ of the law, in which the writer seeks to establish more coherence and consistency than exists in the phenomena themselves. In contrast, any real legal order is characterised by the co-existence of variant interpretations, variant conceptions of justice, variant theories of the whole. Any order must have mechanisms to address those contending positions and make authoritative determinations, at least provisionally. When those mechanisms are taken seriously, the specific content becomes less significant. Descriptions of content appear more like snapshots in time, instructive in themselves, but immediately subject to mutation and change. To fully understand a normative order, one has to understand the processes of change: what drives it; how it works with the past; how it is regulated; how provisional outcomes are determined and applied.[5]

There is, in short, a temptation in the practical or empirical literature to treat normative orders as more consistent than in fact they are, and to minimise the role of human agency in fashioning and refashioning that content. The temptation is also manifested in the theoretical literature. It is not uncommon to see consciously made orders contrasted to orders that emerge out of practice, with the latter treated as though they are the product of something other than conscious decisional processes. To take one recent example, Simon Roberts adopts the adjective ‘acephalous’ to describe non-state orders. He does so to distinguish orders based on centralized political control from orders that do not involve imposition by a governing class; he wants to confine ‘law’ to the former (although he does acknowledge that the latter are normative orders). But surely ‘acephalous’ connotes more than the mere dispersion of decision-making. It obscures human agency altogether in the establishment of order, suggesting that there is no directing intelligence or combination of intelligences, or if there is, such an intelligence works purely by consensual negotiation.[6] In doing so, the gulf between highly centralised state-structured orders and non-state orders is exaggerated.

I suspect that one reason for this tendency is a desire to affirm the integrity of non-state orders against the state, because the state is seen as distant, unresponsive, repressive and (with respect to subaltern orders) colonialist. There are strong affinities between this literature and classical anarchism, as writers seek to affirm means of social organisation that are taken to be consensual, untainted by authority and imposition. I share the need to take non-state orders seriously. I acknowledge that state orders can do great violence to non-state mechanisms of social ordering. But we cannot achieve an adequate understanding by portraying non-state orders as more unified and conflict-free than they are, and by obscuring the mechanisms of decision within those orders.

Ehrlich’s theory strays into this naturalising fallacy, especially (as I will argue) in his fundamental distinction between ‘rules of decision’ and ‘rules of conduct’. And although a full assessment lies beyond the scope of this paper, one wonders whether Ehrlich was tempted by the attractions of anarchism. The period is right, and Ehrlich shares Proudhon’s and Kropotkin’s hostility to the state running roughshod over more local orders, an idealisation of local orders as more consensual and responsive than the imposed order of the state, and Proudhon’s particular concern with the role of localised associations and voluntary acts (especially various contractual forms) in creating normative communities.[7] One would not want to conclude too much. Characteristically, Ehrlich hedges his bets; there are passages, for example, where Ehrlich appears to accept the inevitability of state institutions. But the parallels are thought-provoking.

Ehrlich’s work is subtle and rich, carrying great insight. It is not my purpose to pigeon-hole much less to dismiss him. This paper is premised on the value of engaging with Ehrlich’s approach, an engagement from which I have learned much. Indeed often Ehrlich appears to have been on the track of the insights for which I will be arguing, but those insights were inadequately integrated into his theory. My fundamental argument is that, when engaging with Ehrlich’s work, we get a better sense of the nature and dynamics of law, and of the presence of agency within its formulation, if we take the true extent of social disagreement seriously.

INTERPRETATION AND THE LIVING LAW

Let me begin the primary argument of this paper with a story. In the 1990s I was a member of a research group concerned with developing a conceptual framework for the sociology of law, working especially with the notion of ‘the emergence of norms.’[8] Most of the members of the group approached the issues in the spirit of legal ethnographers, locating norms within a thick description of the circumstances in which the norms were formed. But one of our colleagues took a distinctly different approach. He too was concerned with the emergence of norms but he conceived of that emergence entirely in terms derived from the work of Friedrich Hayek, as the spontaneous ordering of the market.[9] His interpretations did not fit at all well with those of the rest of us. We were attempting to provide rich cultural accounts of the emergence of the norms, highly attentive to the peculiarities of each context; he provided what seemed to us to be stripped-down and functionalist accounts, accounts which filtered all human action through the self-regarding rationalism of economic man. There were times when we wondered whether our colleague and we were engaged in the same type of intellectual endeavour.

There was indeed – and still is – a deep gulf between Hayek’s vision of human interaction and those I find persuasive. But I now think that there was more in common in the approaches taken by our Hayekian colleague and by the rest of us than I had initially realised. Every attempt to derive legal rules from the lived interaction of the members of a particular society is necessarily interpretive, necessarily simplifying, seising upon particular dimensions as especially significant. We make decisions as to which are the best among rival interpretations. We impose greater order upon the material than the practices alone generate. The Hayekian approach was particularly far-reaching in its abstraction, universalising in its assumptions about human behaviour, and thorough-going in its individualism, as it proceeded to reduce human interaction to the self-interested deployment of one’s property. But as an attempt at theorisation it was not profoundly different in spirit from our more culturalist approaches. Our approaches too took a complex and ambivalent experience and simplified it, producing a unified portrait of a normative order said to have emerged from interaction.

In doing so, we tended to occlude variant interpretations, disagreement, and the mechanisms by which that disagreement was settled in the various contexts in which we worked. We tended to reduce contending interpretations to a single vision of the normative order. We might have avoided such a highly simplified account. Instead of attempting to state the emergent law of a particular context as though it were a set of determinate rules engrained in human action, we might have set out to describe the legal culture of that context. We might have explored the diversity of normative arguments that had become entwined with the practices, identified the salient fault-lines within the society, described the relative strength of the various interpretations of the normative order, determined the relationship to practice that gave those interpretations their strength, and suggested how the social milieu’s normative debates tended to be settled.[10] We would then have portrayed a more contentious milieu, albeit one that took distinctive shape and structure from its practices, traditions and historical interaction.