The Social Working of Legal Rules

Abstract

Looking back upon the argument as it unfolds in this article, it strikes me that its structure is essentially autobiographical. The effectiveness of legislation is a classic topic in the sociology of law, but one which at the time I began working in the field was already widely regarded as outmoded and wrongheaded (see Griffiths 1978). The article begins with that conclusion and an analysis of the fundamental reasons why the traditional, top-down ‘instrumentalist’ approach to legislation had proven sterile and, as I argue, unsociological and untenable. I then propose a bottom-up alternative -the ‘social working approach’ -which concentrates on rule following on the ‘shop floor’ of social life, the social organization of which is conceptualized in terms of ‘semi-autonomous social fields’. The greater part of the article is devoted to exploring the implications of such a theoretical choice. As the argument progresses, regulation by semi-autonomous social fields is seen largely to set the conditions under which actors follow ‘legal’ rules. And the analysis of rule following entails attention not only to primary rules of behavior but also to a whole complex of secondary rules governing the mobilization of primary rules. Rule-following behavior thus appears as the product of following rules about following rules. In other words, the effectiveness of law is socially regulated. At various points in the argument the source and adaptedness to the local situation of a rule seem to be important. This idea leads to an exploration of the phenomenon of legal change originating on the shop floor itself: self-regulation. Semi-autonomous social fields are not only the social locus of rule following but also of the processes by which what ultimately become ‘legal’ rules emerge. And this local ‘legislative’ process is itself largely a matter of the application of rules. The continuities between ‘legal’ and ‘non-legal’ rules are thus more manifold and more profound than one had realized. And one of the few (latent) assumptions of instrumentalism which was regarded at the outset of the article as theoretically sound - that it is possible and necessary to make a neat theoretical distinction between rules as dependent and rules as independent variables - turns out to be ill conceived. A quarter of a century after having come to the depressing conclusion that the sociology of law had not produced a single interesting, general proposition about legislative effectiveness, I now conclude optimistically. It does seem possible to give a general, theoretical, sociological answer to the question with which I began: Under what conditions do people follow a legal rule?