Naturalism and Agency in the Living Law
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| how the norms of the living law are established and their definitions maintained. As for elements of state law other than juristic law, Ehrlich is still less clear. His stress upon the alienation of state law from the rules of conduct within a society – his emphasis upon the top-down quality of state law – tends to suggest that it has a decisional but not an interpretive dimension – although he does acknowledge the possibility of statutes being grounded in practice when discussing the arguments of the Historical School of Jurisprudence.
But this brief summary of Ehrlich’s position obscures as much as it reveals. It is worth discussing these matters in detail. To begin, I should emphasise that there is a great deal of value in Ehrlich’s magisterial work even if one accepts the view I take of social ordering. This is true of his emphasis on the primacy of customary law – of law grounded in practice or, as I would prefer to say, justified in relation to practice. His arguments for the primordial quality of that law and for the insufficiency of state law are very well taken.13 He also makes many telling criticisms of the view that state enforcement is central to law, insisting that social sanctions are primary even in the enforcement of the norms found within state law.14 Furthermore, he makes an exceptionally strong case that we need to take seriously how legal forms are habitually employed, not merely the rules that regulate their creation, if we are to understand their social roles.15 His discussion of the use of distinctive contractual forms to structure economic relations, and of the close connection between particular productive systems and specific clusters of contractual interrelationships, is very revealing.16 In his account law is more particularistic, more fully adapted to particular economic circumstances, than is suggested in thinned-down doctrinal approaches to law. In that respect his comments about the attempts to universalise norms through adoption, refinement and extension by the state, and the perils of that process, are especially thought-provoking.17 Finally, his emphasis on the importance of associations, relationships and institutions to our understanding of law is immensely valuable. But all those accounts would be strengthened and given added subtlety if the mechanisms by which the living law comes to be determined were more fully discussed. Ehrlich recognises that state law is incomplete, requiring continual development through conscious decision, but he generally fails to recognise that the same is true of non-state law. He tends to treat the living law – non-state law – as a coherent and comprehensive body of rules, engrained in determinate form within human associations, recognised but not created through conscious decision-making. Here are some examples of how he describes it: ‘The legal norm is the legal command, reduced to practice, as it obtains in a definite association … even without any formulation in words.’18 ‘…we may consider it established that, within the scope of the concept of the association, the law is an organisation, that is to say, a rule which assigns to each and every member of the association his position in the community… and his duties…’19 ‘A social association is a plurality of human beings who, in their relations with one another, recognise certain rules of conduct as binding, and, generally at least, actually regulate their conduct according to them.’20 When discussing the social law he greatly minimises the role of any decision-makers in establishing and interpreting these rules, treating the law as though it were simply observed in practice. He mentions that decision-makers have a role in developing norms that transcend those of the ‘cells’ of a particular society or respond to new developments in society, and does refer cursorily to dispute settlement procedures in ‘primitive’ social orders,21 but generally he treats the living law as consensual and non-contentious. Indeed, that assumption seems to be built into the very foundation of his distinction between rules of conduct and rules for decision, with the former being the province of the living law. He goes so far as to suggest that rules of conduct are rules that obtain only when the association is at peace. If contention arises, the rules of conduct run out and must be supplemented from some other source.22 This emphasis on the unity, coherence and determinacy of the living law is complemented by Ehrlich’s adoption of the historical school of jurisprudence’s position that law reflects a specific people’s character – that if custom is to create law, ‘it must be an expression of the general legal conviction of the people.’23 The living law is harmonious and closely associated with the collective beliefs of a particular human community and, perhaps at a broader level of generality, with the nation. All members of the community hold to the rules as a matter of their collective identity. Now, it is absolutely correct to emphasise (as the above quotations do) that law is about ordering relations in a particular context. But it is a mistake, I believe, to treat that order as though it were organically inscribed in the community, so that all members simply live by its demands. It is better to think about law as driven by an aspiration towards order, by a will to live in an ordered community, but where that order has to be made and remade. The agent that makes this order need not be the state. Ehrlich is absolutely right in drawing our attention to the plurality of contexts in which rules are created and maintained. There may be a very strong ethic that those norms should be sought through reflection on the society’s own practices, so that one attempts, to the extent possible, to resolve new challenges in a manner that maintains consistency with past interactions. This is especially so in the case of societies that have a strong sense of commonality, of solidarity, combined with a will to maintain that solidarity into the future. But even there, it is best to think of such societies as proceeding on the basis of a presumption of order – a sense that one has to postulate the existence of a common rule to regulate the society’s interactions in an ordered fashion – rather than simply embodying at set of unambiguous and determinate rules. In any disputed case (and disputed cases are frequent in any actual society), one will have to deliberate over what the common rule is and (what often amounts to the same thing) what it entails in these specific circumstances. And that deliberation is almost always concluded by some means of ultimate determination. Now, in that process of deliberation, fidelity to the practices of the society may well serve as the principal ground for argument. Detailed appeal to those practices may dominate discussion. Extended deliberation, citing past practice, may produce something approaching consensus. But the acceptability of the final outcome does not depend upon all participants agreeing that the final resolution gets the practice right. Individuals have good reason to acquiesce in the outcome even if they disagree with it, simply because they value living in community with others or can see no possibility of doing otherwise.24 It is in this manner that we should understand Ehrlich’s insistence on the ‘autonomous’ as well as ‘heteronomous’ nature of all ‘rules of conduct’ – his argument that such law is imposed from within, not merely from without.25 It is not imposed from within because everyone agrees with it; it is acknowledged and followed because people realise that if the community is to continue, there have to be ways of bringing social controversy to an end and, in a community in which people do not always agree, those outcomes cannot simply be the ones that each member would pick. Indeed, Ehrlich recognises that the autonomous nature of the law cannot imply ‘that the norm must be recognised by each individual. The norms operate through the social force which recognition by a social association imparts to them, not through recognition by the individual members of the association.’26 In important ways, then, the commitment to live in community precedes and determines one’s commitment to that community’s normative order. One realises the necessity of living in community with people with whom one disagrees, and that prompts one to accept the order that enables that to occur. One’s primary attachment is very much to the idea of order, not necessarily to the rules embodied within it. One is willing to accept a range of ordering principles as long as some reasonable and peaceable structure is maintained. Indeed, this may go a very long way towards explaining the force of arguments based on past practice and tradition: those arguments, drawing their content directly from reflection upon our past lives together, stay closest to our commitment to community for community’s sake. We rely upon our experience of living together because, in the last analysis, the very fact of being able to live together is what is most important to us. Ehrlich sometimes suggests that the rules are primary. He says, for example, ‘Every human relation within the association, whether transient or permanent, is sustained exclusively by the rules of conduct. If the rules cease to be operative, the community disintegrates; the weaker they become, the less firmly knit the organisation becomes.’27 This comment is unexceptionable, however, if one realises that underlying these rules and accounting for their hold on individuals is those individuals’ foundational need for community. At a variety of points, Ehrlich emphasises precisely this dynamic. He speaks of people clinging to their group, noting with respect to the force of social norms: ‘He therefore who is in need of the support of the circle to which he belongs – and who is not? – does wisely if he conforms, at least in a general way, to its norms. He who refuses to conform to them must face the fact that his conduct will loosen the bonds of solidarity within his own circle.’ At another point he suggests that even a well-advised ‘moral anarchist’ will conform to the rules of his community, ‘if for no other reason, because he does not wish to lose the advantages which he gains by doing so, because he wishes to avoid the disadvantages incident to rebellion.’ And he says that a normative order ‘may be a poor one, may perhaps afford undue advantages to its leaders, may impose heavy burdens upon the others, but it is always better than no order at all.’28 All of this opens up the possibility that one can have a perfectly viable association, one that seeks to draw upon its own history as its principal source for its normative order, while still harbouring considerable disagreement and debate over the very content and interpretation of that normative order. That is the usual situation of human communities; at the very least, it is a more persuasive conception than one that sees those communities as naturally unified around a wholly determinate set of rules. All communities then must have processes for settling upon particular resolutions to particular questions. Both dimensions are present: the interpretive and the decisional. This, however, has fatal consequences for Ehrlich’s key distinction between rules of conduct and rules of decision. This distinction dominates Fundamental Principles of the Sociology of Law. Early in the volume Ehrlich says, ‘The first and most important function of the sociological science of law … is to separate those portions of the law that regulate, order, and determine society from the mere norms for decision, and to demonstrate their organising power.’29 The distinction largely underlies Ehrlich’s separation of the living law from the vast bulk of state law. He uses it at the foundation of his notion of ‘legal proposition’. He suggests that rules of decision are much more limited than rules of conduct, for the former are directed only at official decision-makers while the latter are observed in life. Indeed he suggests that rules of decision tend to be alienated from their societies, confined to officialdom, invariably appearing ‘as the result of an inspiration of higher power and wisdom.’30 Ehrlich does not intend this as flattery. He argues that a true science of law must focus on the law that people actually live by, not the norms that are used merely to resolve controversies. There may well be merit in Ehrlich’s suggestion that state law can become alienated from society, and there is certainly much to be said for the view that a traditional, sources-based, dogmatic approach to law can miss much that is significant to legal relations. But it is not helpful to think of these matters in terms of a contrast between rules of conduct and rules of decision. As we saw above, Ehrlich portrays rules of conduct as engrained in human behaviour. He suggests that norms of decision, however, go beyond what is present in behaviour precisely because they have to provide solutions where the rules of conduct have failed: for a relation as to which there is a dispute is something different from the same relation at peace. That which before had been adaptable and flexible has become rigid, immovable; vague outlines have become clear and sharply drawn, and often a meaning must be read into the words that the parties had never been clearly conscious of.31 He suggests that the process of deliberate decision is alien to the rules of conduct. In his view, any such decision would have to draw on rules that are independent of the association’s internal order: ‘in every case when a quarrel or controversy arises, the associations have usually got out of their established order into a state of disorder. It would be foolish thereafter to try to make the norms of the association the basis of a decision, for the latter have lost their ordering power in the association.’32 But if the practices are not univocal – if they always need to be interpreted and in that interpretation people differ, with people then having to find ways of resolving their differences for the purposes of sustaining a social order – processes of decision are entirely interwoven with the living law. These mechanisms need not be alien to the association’s internal order, deriving their content entirely from the outside. They may well involve the kind of intensive deliberation on past practice that I sketched above and they may be performed by parties that are by no means alienated from society, such as respected elders or, in a commercial context, trade associations publishing advisory opinions or arbitrators named from among the participants themselves. Nor need they result in rigid conclusions: resolutions can take the form of compromises; they can involve processes of restoration and rededication to the relationship; they can be expressly limited to the particular case, without propounding an abstract rule. Again Ehrlich’s position stumbles over an excessive emphasis on agreement as the foundation for the living law, leading him to neglect interpretive and decisional processes that are inherent in all examples of the living law.33 To put the same point in another way, Ehrlich is right to see social norms as never being definitively stated and as existing in close relationship to the pattern of practices that lie beyond the expression of the rule. That, after all, is the great insight in Wittgenstein’s theory of what it means to follow a rule.34 But those rules do have to be made articulate, especially when a choice between varying interpretations is necessary, and especially when they are to be used to resolve a particular dispute – in the very circumstances, in other words, in which a rule is necessary. And that is accomplished through probing the practices, considering their implications, reviewing past normative commitments, and deciding how the norms should now be developed (and indeed Ehrlich describes this process of interpolation, although he suggests that the practices provide unique answers, without any need for the further determination I have been emphasising).35 The expression of the social rule is not, then, antithetical to its nature. Ehrlich is right that the formulation of the rule does not precede its application, so that the rule’s application is simply the logical consequence of the previously articulated rule.36 There is always room for further consideration of practice and further development of the rule’s normative content in consequence, a development prompted by the very act of applying the rule to new circumstances. But the formulation and reformulation of norms through the making of decisions is part and parcel of how one works with all law, non-state as well as state. Llewellyn and Hoebel’s focus on decision-making as the key arena in which to understand Cheyenne law was not just common-law casuistic bias, but the recognition of a fundamental and inevitable dimension of all legal orders.37 It is worth inquiring into the nature of these decisional mechanisms in non-state orders. Any recognition of a normative order involves not just the recognition of a set of rules, as Ehrlich seems to suggest, but also a structure of authority which settles, interprets, and applies those rules. Those structures of authority require our attention. Questions about their adequacy should not be hidden behind the fiction that non-state orders are natural and non-contentious. It is also possible for state institutions to settle societal norms in a manner that is attentive to the normative implications of human interaction. Indeed, once one recognises that non-state orders too require decisional mechanisms, the contrast between the orders becomes much less sharp. Gerald Postema’s theory of the common law is a persuasive portrait of just how normative reasoning can be driven forward by intense engagement with past human interaction.38 There is a substantial body of scholarship in administrative law that suggests that specialised tribunals too can develop regulatory regimes in a manner responsive to their particular domains.39 The alienation between state institutions and the living law postulated by Ehrlich is possible but by no means necessary. In fact, Ehrlich notes that the role of state law has grown in conjunction with the intensification of solidarity within national societies; he acknowledges that juristic law (state law developed by judges) has grown by hermeneutic extension, often working from the rules developed in the inner order of associations; and, as already mentioned, he appears to accept the suggestion of the historical school of jurisprudence that statutes too can be grounded in practice.40 There is, in the end, a great deal in common between non-state and state legal orders in their manner of functioning. One wonders whether Ehrlich’s fundamental concern is best understood not on the basis that one legal order is engrained in conduct and the other imposed as a rule of decision, but rather flows from his regret at the generalisation of norms beyond the rich cohesion of a local community. He is concerned with the application of rules on a state-wide basis, so that they are imposed beyond the contexts that originally produced them, overriding local norms.41 He emphasises that the abstraction and universalisation of norms separates them from their communities, and he markedly prefers particular and localised norms (although he acknowledges that some universal norms have taken hold among ‘the whole human race’ and have now become, in his terms, rules of conduct for them).42 Some of his criticisms of state law can be read as attacks on professionalisation and the potential for alienation that that involves. Indeed, this seems to be the key point underlying his contrast between customary and juristic law in the work of the historical school.43 But if this is so, we are not dealing with two fundamentally different kinds of law – rules of conduct and rules of decision – but with a unified phenomenon which can be pursued with greater or lesser sensitivity to place, with greater or lesser responsiveness to experience and tradition, with greater or lesser respect for norms of equality, individuality and participation, with greater or lesser openness to moral learning, revision and change, and within spheres of jurisdiction that are more or less attuned to patterns of experience and culture. It is along these vectors that the comparison of state and non-state orders should proceed. CONCLUSION Thus, we obtain a better sense of the nature and dynamics of law, and the presence of agency within its formulation, if we take normative disagreement seriously. How would this change our pursuit of Ehrlich’s project? To begin, we would pay careful attention to the decisional dimension that exists in all normative orders, state and non-state. We would inquire into the nature of decision-making processes, their partiality, and the elements of imposition that all normative orders embody. We would attend to dissent: where dissent is located, how it is manifested, whether and how it influences outcomes, how social norms are settled. When we stepped from the task of understanding normative orders to the question of how and why they should be accommodated – when we moved, that is, from science to policy – we would not base our decisions on an easy equation of norms and communities so that issues of contestation and control were rendered invisible. On the contrary, we would be alert to the mechanisms by which norms are made and would gauge our responses to those mechanisms’ claims to authority. I would like to think that this might produce a stance of constructive engagement among members of different orders, where one would presume that norms had a measure of adaptation to context (precisely because the norms had been developed within that context), but where that presumption operated in relative terms and did not foreclose an assessment of social agency. We would pay careful attention to who claims to speak for whom, whose voice is predominant, and the justification for that predominance. And we would always be careful to turn similar scrutiny back on ourselves. At the same time, we would subject the interpretive dimension of normative orders to more detailed examination. Orders are not simply a projection of social practices. Those practices have to be perceived, formulated, their implications explored, and their ostensible lessons re-translated into action. An act of interpretation is always interposed. The practices do provide the foundation for the range of interpretations. This recognition furnishes the basis for arguments that suggest that at a broad level of generality, the normative order is constrained by, perhaps even determined by, social conditions. But note that this conditioning of norms operates only at a level of generality; the detailed determination of norms and their application still involves the kind of agency identified here. And one would also want to be careful in employing the language of constraint or determination even at a general level. Norms can be relative to practices and shaped by them without being absolutely constrained by them. Practices can be susceptible to such a variety of interpretations that there is room for quite different conclusions. Norms themselves help to structure practices; there can therefore be change in the conditioning environment over time in part as a result of past normative decisions. Once again, our attention should be drawn to questions of agency. And in that agency we see the relevance of culture – of the resources and linguistic frameworks within which phenomena are expressed and understood – to all law. Law is never simply a functional adaptation to context. The pragmatic and the cultural are always conjoined. Finally, note that these comments apply equally to state and non-state normative orders. Indeed, there is a deep and abiding structural similarity among all norms. All are framed in relation to practices; all are premised on interpretations of practices (in which culture inevitably plays a role); all require means for resolving interpretative disagreements in order to establish today’s norm (at least provisionally). The paradigmatic feature of the law has often been thought to be coercion; the principal agency of coercion is the state; hence the equation of state and law. This paper suggests that the emphasis on physical compulsion is itself misconceived. Legal institutions’ fundamental role – their quintessentially legal function – is to specify norms, to render them determinate. They may also apply coercive pressure, but that is supplementary, not indispensable. Indeed, if there is anything that the sociology of law, including Ehrlich, has taught us, it is that direct coercive enforcement of the law is rarely necessary to secure even a high degree of social compliance. Specification of the law – making clear what the social norm is in the face of normative disagreement – is often fully sufficient to achieve conformity, given individuals’ commitment to living in society – a commitment that itself underlies informal, indirect inducements to comply. Canada Research Chair in Law and Society, Faculty of Law, University of Victoria; Director, Consortium on Democratic Constitutionalism; Visiting Professor of Law, University of New South Wales. My thanks to Marcia Barry, Christina Godlewska and Crystal Reeves for their able research assistance, and to Kate Gower, Crystal Reeves and the participants in the workshop on ‘Living Law: Rediscovering Eugen Ehrlich,’ International Institute for the Sociology of Law, Onati (especially Franz and Keebet von Benda Beckman) for their trenchant comments on earlier drafts of this paper. 1 For example, Rodolfo Sacco, "Mute Law" (1995) 43 American Journal of Comparative Law 455. 2 Eugen Ehrlich, |