Law & Society Blog

8 Responses to “Society as Choice”  

1. 1 Ben Samuel Nelson Jan 11th, 2007 at 11:00 am

   The word “society” is nebulous and it shouldn’t be too much of a surprise that it gives us heartaches.

   The best formulation I have come across so far has been something like “a somewhat closed system characterized by regular interaction between members”. If that’s so, then nations cannot be societies, because its members share no regular interaction. On this model, when you engage in crime, you are not denying the law as law — you are still neutral with regard to the law — but are a deviant to the community around you. This captures part of your original intuition, at the cost of losing the power to say that the criminal is an “outsider” of a grander society, nation, or institution, which is (I take it) not harmonious with your conclusions.

   So instead, we may reject the above definition of “society”. We might say it is something like “a social construction, a term of art used to designate some group of people on the basis of some terms which are accepted by some aggregate”. In that case, we can talk sensibly about a nation-state — no shared interaction is presumed or required. An outsider would be whoever we have designated to be a dissenter of the terms that define the group. But we couldn’t talk about institutions, which (I would argue) are constructs which is a useful concept only insofar as we’re able to abstract away the contributions of individuals.

   One set of terms center around “rights”. If we call ourselves a “rights-based society”, presumably the deviants are those who try to rescind those rights (through either symbolic actions or bad habits). But rights seem to operate at the level of the institution! So there is a gaping hole in our explanation of where and how these terms come about.

2. 2 Matt Wood Jan 13th, 2007 at 2:04 pm

   Ben-
   The definition of society I have in mind closely mirrors your second one (and might be parasitic on the first). Let me start with an example: In the movie Apocalypto, there is a scene in which two tribesmen, both taken prisoner by a roaming band of marauders, are speculating about where they’re being taken. Tribesman 1 says to the other: “In my tribe, we tell stories of a city made of white stone.” This statement is evidence that the speaker’s tribe isn’t integrated into the “legal system” (read: legitimated power structure) of the nearby Mayan capital (which is indeed, we later find out, made of white stone). This depiction of ignorance led at least one scholar of Mayan culture to protest: “During the Classic period Maya settlement was so widespread that you lived at least within 10 to 20 kilometers [6 to 12 miles] of a large community. Pyramids were never more than 20 kilometers away from anywhere in the Maya world. There was a great sense of political connectedness between different groups. Even small villages in the hinterlands of large cities were connected to some political center.” Although these comments were intended to refute the historical accuracy of the tribesmen’s ignorance of the larger political system in the movie, when placed side-by-side with the movie’s portrayal a nice thought experiment emerges. We can imagine something like a gradual movement from the state of political ignorance portrayed in the movie to the state of knowledge (and acceptance) taught by archeologists, each corresponding (I’ll argue) to a state of being “outside” and “inside” the law, respectively.

   While we might generically define “society” as you did (“a somewhat closed system characterized by regular interaction between members”), more specific instantiations of societies will turn on the definition of “closure”. In the context of law, I think we should speak of “political societies”, and locate the requisite closure in the vocabulary used to describe, understand, and negotiate power relationships (underwritten by reifications and constructions, of which the nation-object is itself one, and “rights” another). Certain combinations of these constructions, when conveyed through language, must be capable of generating a sense of propriety or “rightness”. [In our Tikopia/Wild West discussion, I called this a habit of legitimacy-recognition.] The source of this sense probably lies in childhood socialization, but may apparently be acquired later in life, as in the case of new immigrants. A final, more objective, constraint is that of “citizenship”: namely, any one member of the political society must be recognizable as a member to other members. This recognition, like the others, is generated as a byproduct of dialogue, and in modern times is mediated by extensive record-keeping and documentation.

   So, to take a specific example, the statement “The American Congress passed a law forbidding X” would be felt as binding by a member of the American political society because (1) to them this statement is meaningful and coherent, and (2) they respond with a (pre-conscious) reflex of legitimacy-recognition. Importantly, because of the reflex of legitimacy-recognition, the threat of violence (while extant) doesn’t consciously enter into the decision to obey the law, even if they disagree with its substance. (I’ll come back to the role of violence in a minute.) Note that the felt-legitimacy and related sense of bindingness would not be experienced by a member of the Mexican political society who overheard this statement (no matter how close to the American-Mexican border such a person lived, or how frequent their interaction with friends on the other side of the border were) and hence they would not meet the criteria for membership in the American political society. However, were members of the American political society to conquer Mexico with brute force, and even if the entire conquered generation privately refused to recognize the legitimacy of American rule, subsequent generations with less hardened loyalties may be persuaded to recognize the legitimacy of their parents’ conquerors. In this case, the younger generations would likely participate in two dialogic traditions: one imposed by American rule and its vocabulary, the other preserved at dinner tables and underground resistance meetings, which might, among other authorities, cite the history of conquest as grounds for American rule’s illegitimacy. But if the latter dialogue can be stamped out by the conquerors, subsequent generations are likely to seamlessly meld into the American political society and adopt its political vocabulary and habits.)

   A couple of further observations: A political society’s language tradition may be anchored in a written document such as a constitution, which stabilizes the discourse and hence the legitimated power structures themselves (much like a biological organism’s DNA). Second, members of the political society who acquire power through political dialogue (and hence the “trust” of the society’s members, rooted in their habit of legitimacy-recognition) are capable of manipulating the vocabulary of the discourse and thereby enhancing their power. I have referred to this phenomenon as “extra-constitutional acquiescence” in previous discussions on power, although that term requires a bit of refinement. In fact, the term contains a hidden bias on my part. In reality, whatever a political actor can persuade other members of society to be constitutional *is in fact* constitutional, because “constitutionality” is nothing more than a construct sufficiently coherent to evoke the reflex of legitimacy-recognition through political dialogue. This is where the indispensable role of legal scholars becomes apparent. By specializing in the knowledge-domain of law, they place greater dialogic demands on the justifications for power by dint of their more demanding requirements for personal cognitive-coherence. It is the measure of constitutionality that emerges from this sub-culture’s dialogue that I take as my polestar for “constitutionality”, although, by my own definitions, if these specialized members of society were silenced (much like my hypothetical Mexican conquerees) and the justifications offered in their absence found persuasive (ie, sufficiently coherent) by enough members of the political society (and perhaps not even a majority, but only the society’s taste-makers), such acquiescence would not be “extra-constitutional” but constitutionality itself.

   From this definition of the interiority of a political society emerges a definition of its exteriority. An individual could be external to such a society if (1) he is unable to speak or comprehend the society’s political vocabulary (although the other members may voluntarily bestow protection upon him), (2) refuses to recognize the legitimacy of the government and its power-vocabulary (i.e., only obeys due to the threat of violence or negative sanctions … Importantly, such people may be perfectly integrated into the informal society of everyday interaction - think of the 9/11 hijackers), or (3) subjectively believes all these things, but is unable to persuade the other members of the political society of his “citizenship”.

   More explicitly addressing the role of violence in maintaining power, this understanding of the political society is capable of admitting the evolutionary role of violence (ie, my Mexico example) and deception in shaping the present political dialogue. But the key point that emerges is that the power relationships themselves are largely maintained by trust, not the threat of violence, rooted in the habit of legitimacy-recognition. Although, of course, people who trust don’t always obey (thus requiring negative sanctions), and not everyone will trust (again requiring negative sanctions). And because it’s impossible to determine a priori which people will resist which laws, a general threat of violence is needed. But I think the threat of violence is largely marginal in everyday terms, and trust (generated by an accepted political vocabulary) the ultimate glue that holds the state (at least most modern ones) together.

3. 3 Ben Samuel Nelson Jan 14th, 2007 at 6:43 pm

   There are a lot of things I can say in reply to that excellent post. I would agree, first, that “trust” and “power” are the bonds which connect the small world of everyday interaction to the big world of the institution.

   I would also agree, as an ad hoc tactic, that the different manners of persuasion are of fundamental significance to conversations on power (as did Russell, who said much of the same things as you have, though his terms were different). In particular, Russell would agree with the way you have characterized the transformation of power: from overt force, to acquiescence, to traditional force. (He referred to this in passing as a ‘rule of three stages’ — see my precis of ‘Power: A New Social Analysis’ on Wikipedia for more info.) I am skeptical on some points — is trust really equivalent to mere habit? isn’t there a difference between acquiescence and trust? — but these concerns don’t get to the thrust of my original worry.

   My point was that, following Manfred’s suggestion, we understand societies as governed by the “metaphorical” or “normative” space established by members. My interest is in discussing a subset of societies, so understood, as political societies (or political institutions). The problem is that I understand institutions as social constructs that are not themselves composed of particular well-defined individuals; and if that’s fair to say, then it seems quite difficult to establish how a particular person with an established individual identity could be understood to be a political deviant, because it wouldn’t even make sense to class a particular person as beholden to an institution.

   This problem seems to show us that institutions are mere epiphenomena, and that no explanations of institutions in terms of metaphor and cognition (no matter how plausible and convincing they are in the abstract) could possibly make any sense of the notion of an institution. In institutions, there are only variables (i.e., roles), no constants (i.e., real people). And roles do not cognate.

4. 4 Matt W Jan 15th, 2007 at 2:29 am

   Ben-
   I’m not sure it’s right to say that institutions are “social constructs that are not themselves composed of particular well-defined individuals”. Obviously, every institution at any given moment is comprised of well-defined individuals, whose concantenated interactions *are* the actions of the institution. While it’s possible to observe the composition of an institution over time and notice a cultural reproduction of its functional parts (and abstract from this observation the notion of interconnected “roles” that persist beyond the cooperation of any given set of individuals), ultimately the institution *is* its component social actors, and the idea of “roles” a construct (however useful). This is not to say, however, that participants in the institution don’t comprehend their place in the institution and those of their fellows in terms of social constructs, such as “roles” and reified “institutions”. The combination of these two facts - (1) the elemental humanity of the institution, and (2) the self-understanding of social actors in terms of social constructs - point toward a different understanding of the institution (one that is, as you mentioned, “epiphenomenal”, if by that term you mean an orderly macro-scale phenomena that arises unintentionally from smaller micro-interactions) that I hope to ground in the phenomenon of discourse.

   As an aside, one reason I have trouble with your objection to explanation in terms of cognition and metaphor — ie, that “no explanations of institutions in terms of metaphor and cognition (no matter how plausible and convincing they are in the abstract) could possibly make any sense of the notion of an institution. In institutions, there are only variables ( i.e., roles), no constants (i.e., real people). And roles do not cognate.” — is that it is self-refuting in a sense: the very definition of an institution as comprised of roles and not “real people” is an abstraction, a mental construction. And in that sense, it seems to be on no firmer footing than metaphorical or cognitive explanations of the institution. But more fundamentally, it seems to me wrong, for the reasons I’ve already given: institutions are in fact composed of “real people”. If you were to tell someone less steeped in philosophical conventions that their local police force was comprised of “roles” and not “real people”, you’d probably get a look of disbelief in reply.

   That’s not to say, however, that the notion of “roles” is theoretically bankrupt. To the contrary, it’s absolutely essential. As socialized creatures, we internalize our social environment according to “role”-like understandings, which act as nucleation sites for expectation-bundles that enable us to productively coordinate our behavior: “police officer”, “mayor”, “judge”, “President of the United States”, “Congresswoman”, etc., each etched into our minds along with a schematized blueprint of basic respective “powers”. Through socialization we come to accept the existence of these roles as natural and develop accompanying habits of legitimacy-recognition in response to their invocation. The key point, however, is that this social power is wielded by real people, acting in concrete situations, and invoked dialogically. “Power” is a social (hence interpersonal) phenomenon, and outside the context of violence - the threat of which is itself a matter of communication - power is negotiated according to a common vocabulary, or power-talk. Because every member of a political society (as I’ve defined it before) is by definition literate in his society’s power-vocabulary, we should expect conversations like the following to take place (with some editorial amplification of normally tacit assumptions, for the sake of demonstration):

   A: “Step away from the vehicle!”
   B: “Why should I, who do you think you are?”
   A: “Townsville police, sir, and if you don’t believe me, check out the badge.”
   B: “Ah, I see, well I guess I have no choice…”
   —————
   City official: “We’re taking your house. Here’s a check in compensation.”
   Owner: “You can’t do that! You’re just another person, like me. Who do you think you are?”
   City Official: “I’m with the City Council, ma’am, and I have the authority to take your property according to State Statute 101, although I’m forced to compensate you according to the US Constitution.”
   Owner: “Ah, I see. Those are legitimate sources of authority, so I guess I have no choice, even though I don’t like it…”
   (Alternatively, Owner files a lawsuit challenging the taking. Win or lose, the outcome is accepted as “lawful” - ie, the legitimate resolution of a power-struggle - by the parties.)
   —————
   Private citizen 1: “Hey you! Get off this land!”
   Private citizen 2: “Why should I? I don’t see anything keeping me off but you! Are you gonna force me off with violence?”
   PC1: “Nope … here’s my title to this piece of land, making me “owner”, and here’s State Statute 102 which gives the “owner” of land the power to control who comes on the property.”
   PC2: “Well, those are legitimate authorities. I guess you’re right. I should be going then…”

   (Interestingly, if PC1 had cited the Magna Carta for his property “right”, PC2 would have laughed at him. The document, and its language, belong to a different time and, more importantly, political society - with a different power-vocabulary.

   —————-
   Owner: “Judge! The city took my house without compensation!”
   J: “Well, City official, what do you have to say for yourself?”
   CO: “National security exception to the Constitution, your honor. According to the Supreme Court case of Doe v. City, we don’t have to pay under these circumstances.”
   J: “I’m afraid he’s right, Owner. Complaint denied.”
   O: “Well, since I accept the legitimacy of the judicial system and its precedents, I guess I have no choice…”
   —————-
   Emperor: “Subject, you must serve in my military!”
   Subject: “Why should I?”
   E: “Because I was annointed by the priests (whom you trust) and am therefore chosen by god-figure X (whom you believe in) to have absolute power over you (which is consistent with the teachings of your theological education).”
   S: “Ah, I see. I guess I have no choice then…”
   —————-

   I believe it’s this combination - the “power” of roles as mental constructs, invoked by flesh and blood people, and negotiated by resort to a common power-vocabulary - that constitutes the closure of a political society. The origins of the system are probably organic and complex, the result of systemic self-organization, at a low-level the product of negotiation and re-negotiation of power-terms (and their accompanying mental constructs) and the slow accretion of minor political innovations (and their solidification into institutions by the introduction of new language and “roles” to describe/activate them in discourse). I think a Habermas-ian notion of “communicative action”, whereby social actors recursively coordinate their behavior through the exchange of validity claims, could put some meet on the bones of these ideas, but I only have a passing familiarity with his ideas.

   So, someone who refuses to play a political society’s power langauge-game (and recognize the legitimacy of its terms) would be “outside” the society and its laws — although, of course, those inside the political society may dialogically reach a consensus that their vocabulary covers this “outlaw” in certain ways, and requires them to respond to his actions with consequence X. And I believe this definition of the boundary usefully describes the line separating America from American West, tribesmen in the hinterlands from Mayan power center, Tikopians from European conquerors, and guerilla insurgency from “official” central government.

5. 5 Ben Samuel Nelson Jan 15th, 2007 at 11:16 pm

   Matt, my first reply would be that you’re not making the most out of natural language. We already have a phrase for the things you’re describing, whose aggregated interactions create some noteworthy system — they are organizations. Institutions, however, are pluriform and abstract in a way that organizations don’t seem to be. That needs codifying, somehow; if my formulation is no good, then another needs to take its place; but it seems to me that what I’ve provided is the best candidate so far.

   The puzzle that arose concerning the nature of pure social systems can be cashed out by other theoretical languages in the philosophy of social science. It led to Weber to call upon the notion of the “ideal type” to explain the category of things I’m describing — bureaucracies, democracies, marriages, and especially, legal or political entities. Perhaps you would like to reserve the word “institution” for something more down to earth; but no matter what you call it, the political ’society’ is at this level. “America”, the social phenomenon, hasn’t necessarily got anything to do with the people who made it or comprise it now. It doesn’t matter whether or not the man we take to have been named George Washington, was in fact a completely different person who has been falsely given the name. “America” has to do with the ideas and behaviors that bear the name. It doesn’t matter which particular persons are born today and tomorrow who carry on its legacies, any more than it matters which individual cells happen to make up my body. We are operating at a level of generality where the token parts, like the boards that make up the ship of Theseus, are of no significance at all. And even if these interacting persons are suspected to compose the final product, we have utterly lost our understanding of the final product if we define it in terms of those substances.

   I suppose we can say, “Well, that only proves that, within the closed circuit of definitions, we have a first-order puzzle. But these problems dissapear when you take a step back, and examine things at the second-order; then we can connect the dots”. And that’s true — it is likely that this dualism is merely a descriptive puzzle. But if we connect the dots, it cannot be direct. We have to say: “Any given institution is merely an abstraction of organizational behaviors”, where the behaviors of an organization are understood to be the regular role-abiding behaviors of its members; members whose actual selves are taken to be of no significance. In order to understand the very idea of an institution, we have to alienate ourselves from real human beings — and in a very real sense, the destruction of an institution involves rescinding that alienation. This seems to indicate that institutions must have some causal relationship, which I don’t deny. But the descriptive puzzle remains. (Indeed, there would be no puzzle if it weren’t so obvious that there’s a causal connection.)

   Institutions are fundamentally inhuman; and a Kantian’s categorical imperitive tells us that they are fundamentally unjust, since they cannot help but treat people as means and not ends. But organizations are completely human, for whatever that’s worth. The blank looks in your police force example would be justified, because by the use of the word “local”, you’re pointing to a particular entity made of particular people — an organization. If you were, by contrast, to say that “the police are just organizations made up of roles, not particular people”, then one would likely only be congratulated for stating the obvious.

   You won’t find me objecting to the notion that social power is wielded by particular people and their interactions. But power abhors a vacuum, and sometimes it isn’t something purposive that picks up the torch.

6. 6 Matt W Jan 16th, 2007 at 2:18 am

   Ben-
   I think the difference between our approaches might be captured by Dennett’s ideas of the design stance vs. the intentional stance. Your focus on “inhuman”, aggregate, near-immortal “roles” and “institutions” is undoubtedly descriptively useful up to a point, but as a conceptual framework it only allows us to answer a certain set of questions productively. Our discussion (at least its roots) were, to my mind, aimed at the question: what is “law”? To attempt an answer, we could use the metaphors of “institution”-objects, functional “parts” of working wholes, etc., but these notions presuppose an underlying reality (a “cellular” infrastructure) that I think is more theoretically germane to this particular question. Indeed, I would posit that “law” is one of the interstitial forces that hold the solid mass of an “institution” - and even whole society - together (perhaps the most important one). And to look at these “wholes” or aggregated units without a microscope is to ignore these forces, to assume them away. If the question of “law” is rooted in the question of “legitimacy”, we can’t help but answer the question on the level it is asked: namely, why (and how) do individual people routinely submit to the power-demands of their fellow people?

   I would call the fledgling theory of law I’ve sketched in previous comments neither positivist nor anti-positivist, but maybe a “coherence theory” of law, in which each person responds to legal validity claims with their entire cognitive faculties, moral as well as empirical. The sense of “rightness” that a claim to normative power evokes in the individual mind (which in turn determines the willingness to cooperate with the claimant according to his terms) is a kind of resultant vector of *both* the person’s moral reaction and that person’s sense of the claim’s positivist “rightness”, such as whether it was passed by a legislature (which ifself embodies values of near-moral dimensions … think of the emotional punch the ideas of “democracy” and “civil rights” can carry). And as far as I can tell, these claims are always invoked in the context of interpersonal communications, whether between private citizens, in a courtroom, in parliamentary chambers, etc. (My examples above should be illustrative.) And these claims are negotiated according to a common power-vocabulary and its accompanying mental constructs. In essence, the law is a giant conversation taking place between the members of a “political society” about the proper actions they should take with respect to one other, each justifying their positions with reference to both accepted social structures (which are represented in the mind according to “ideal types”, as you put it, and imbued with socialized reflexes of legitimacy-recognition) and moral principles. This is true whether we focus on Supreme Court opinions, Congressional floor debates, litigants in a courtroom, a lawyer advising her client, parties negotiating a contract, or two friends chatting about legal philosophy over a cup of coffee.

   And there is, as Hanno put it, a kind of “moral override” built into the system. Just look at the conversations surrounding the American civil war (or perhaps every civil war in history), the current Iraqi insurgency (and perhaps every separatist movement in history), the “Taiwan problem”, the French and American revolutions (and perhaps every revolution in history) … the dialogue, the language itself, is invariably a mixture of moral polemics, and legalisms (constructs that only have “power” insofar as they are accepted by a sufficient number of people as the mediating basis for interaction, such as “rights”, including “natural law”). And the goal of this speech is to persuade, to cajole, to shame, to exhort, to inspire, basically to talk one’s neighbors into a common design. In times of stability, this power-language and the relationships it simultaneously creates and legitimates (the fount of “social power” itself) are stable as well, much as in the examples I’ve given above. We simply don’t recognize the socially (and hence individually) constructed nature of notions like “rights” or “natural law” because they are as natural to us as the air we breathe. [Isn’t it amazing/fascinating that a group of 9 regular ol’ people (ahem, “Supreme Court Justices”) can essentially “speak into existence” a right that never existed just minutes before, “located” complexly in the textual morass of a Constitution and precedent, and within days it pops up in “legal” (power-mediating) conversations all the way down from judges to attorneys to people on the street, each altering their behavior in response to its invocation!] A quick glance back in the history books, or across the continents, can reveal very different power-vocabularies very different from our own in content, but equally constructed and gloriously dialogicm, as real and unreal as our own. I believe it’s this capacity for discourse, for conversation, for langauge as a means of determing “rightness” that explains Aristotle’s description of man as zoon politicon, or the political animal.

7. 7 Matt W Jan 17th, 2007 at 5:30 pm

   [I’m apologizing in advance for the length of this comment.]

   After just reading two articles dealing with Jurgen Habermas’s theory of communicative action, I think I can take a tentative step towards fleshing out my arguments for the role of dialogue in the definition of law. According to this helpful paper, which summarizes Habermas’s theory of communicative action (and quotes from his book The Theory of Communicative Action):

   “What Habermas attempts is to identify and reconstruct ‘the rational internal structure of processes of reaching understanding’ in terms of ‘the validity claims of propositional truth, normative rightness, and sincerity or authenticity’: ‘the concept of rationally motivated agreement, that is, one based on the intersubjective recognition of criticizable validity claims’; and ‘the concept of reaching understanding as the cooperative negotiation of common definitions of the situation.’”

   As contrasted with instrumental rationality, Habermas proposes the ubiquity (and primacy) of “communicative rationality”, which in his own words “carries with it connotations based ultimately on the central experience of the unconstrained, unifying, consensus bringing force of argumentative speech, in which different participants overcome their merely subjective views and, owing to the mutuality of rationally motivated convictions, assure themselves of the unity of the objective world and the intersubjectivity of their lifeworld.” Rationality itself, according to this theory, turns on the ability of a speaker to justify with convincing grounds or reasons the validity of his communicative statements, dialogically - in the course of conversation – and hence intersubjectively . . . in other words, through persuasion. This conception of rationality looks to be grounded in a consensus theory of truth, and Habermas himself appears to concede as much: “The condition for the truth of statements is the potential agreement of everyone else.” (While I have doubts about how far this truth-criteria can be pushed in the context of scientific discourse, I believe it touches the core nature of “political truths”, such as questions about the distribution of “power”.)

   Habermas links communicative rationality to a theory of argumentation, in which “[a]rgumentation refers to ‘the type of speech in which participants thematize the contested validity [claims of an expression] and attempt to vindicate or criticize them through argument,’ and an ‘argument contains reasons or grounds that are connected in a systematic way with the validity of a claim of a problematic expression.’ … [A]rgumentation aims to produce cogent arguments, which bring about intersubjective recognition of validity claims and transforms opinion into knowledge. … Each aspect [of argumentation] can be respectively said to aim at ‘the assent of a universal audience,’ ‘the attainment of a rationally motivated agreement,’ and ‘ the discursive redemption of a validity claim.’ … Thus, for Habermas, the rationality of social action is and should be assessed in relation to the validity claims [whose acceptance prompted such action] and the possibility of reaching agreement in critical discourse, and thus rationality is conceived as inherent in communicative practice which is intrinsically oriented towards consensus.”

   Habermas identifies three types of validity claims that are at least implicit in every communicative expression: claims of propositional truth, claims of normative rightness, and claims to sincerity. Each of these types can be “thematized” by an expression (by which I understand Habermas to mean ‘made more cognitively salient’, or ‘emphasized’), even though all are actually present, giving rise to a set of more-or-less distinctive speech acts: constatives, regulatives, and expressives, respectively. (It should be noted that Habermas includes a larger number of speech acts in his own classificatory scheme.)

   Lawrence Solum has written (Freedom of Communicative Action, 83 Nw.U.L.Rev. 54 (1989)) that “[u]nder ordinary circumstances, the participants will share a common set of norms or facts to which appeal may be made in the course of argumentative discourse. Where there is disagreement about specific facts or norms, the participants may still agree on the appropriate standards or criteria by which controversial norms or facts may be judged. … In some situations, however, even the standards or criteria of truth and rightness are the subject of controversy; in such cases the continuation of the attempt to reach agreement demands a move to theoretic discourse. Rational argumentation, thus, [as Habermas puts it] ‘can be conceived as a reflective continuation, with different means, of [communicative] action oriented to reaching understanding.’” Solum describes this overall process as “discursive will formation.”

   I’d like to propose that “communicative action” – a process whereby validity claims are raised in speech, discursively defended in argument, and accepted or rejected as a basis for action – underlies the phenomenon of “law.” In fact, I believe “law” can be thought of as a special case of communicative action, wherein normative validity claims are justified by discursive reference to the actions (ultimately speech) of a norm-promulgating authority.

   First, notice the extent to which speech underlies the effectuation of “law.” In the American system of government, a subset of the population known as Congress-people discuss amongst themselves a new norm-proposal. A formal vote is taken (itself a communicative act, rooted in assessments of the normative validity of the proposal on non-positivist grounds) and the approved norm is then written and conveyed to an authorized publisher, who records the norm in text. Copies are manufactured and distributed to judges, lawyers, and other interested parties, including the public. Each reading of the text completes an act of communication. When a violation of the norm is alleged, this text is invoked by one private party in a specialized discourse-forum known as a court. Arguments for action are conveyed to a judge by the laywers for each party (who have learned the facts of the case from their clients, and the law from published sources), and each lawyer invokes Congressional, judicial, or Constitutional speech (i.e., officially promulgated norms) as the grounds for or against the validity claims of “rightness” implicit in their requested rulings. The judge assesses the persuasiveness of the grounds for the competing validity claims and reaches a conclusion, which he communicates to the parties and larger community in the form of an “opinion”. Depending on the behavior of the losing party, this judicial speech can employed as the grounds for the validity claims implicit in requests, communicated to enforcement authorities, for the taking of enforcement action. The dialogic chain continues on, from chief of police to beat officer, from officer to officer, from officer to arrestee, from officer to jail guard, from officer to judge hearing habeus corpus petition, on and on… each link a case of conversation, of dialogue, in which repeated efforts to induce action by listeners is pursued by offering grounds to support the implicit (or explicit) normative validity of action, typically by reference to legal speech, itself typically in the form of texts.

   To my mind, the importance of law as a socially ordering force lies in the ability of its *invocation in dialogue* to structure individual behavior (and I hope to have by now impressed on you the fundamental, utterly central role of speech in generating these effects). But I don’t think the truly remarkable feature of law lies in the propositional validity claims which are but one facet of the expressions that comprise links in the institutional ‘chain of dialogues’ that generate social order out of legal pronouncements (i.e., whether the statement “Congress passed a law saying X” is true) - although the validity of these propositions is surely a necessary condition for the success of “law.” Instead, it’s the implicit normative validity claims underwriting persuasion along this chain – the claims to a proposed action’s rightness – and their discursive justifications, that are most distinctive. In general, the mere fact that a governmental authority promulgated a norm is taken as *sufficient ground* for acceptance of a normative validity claim, and hence the promulgated norm, as a basis for action. Herein lies what I’ve been calling the ‘habit of legitimacy recognition.’ I think this simple dispositional response and its stimulation in the course of dialogue (through, for example, the invocation of positivist grounds to justify normative validity claims) is the tissue that holds the entire apparatus of state together. This is the “trust”, the voluntary acquiescence to state power, that works in place of the threat of violence as a means of organizing society and its many power-relationships. The unquestioned legitimacy of the state and its law is necessary for the efficient cooperation of so many actors; imagine the difficulty of governing if the legitimacy of the state had to be re-argued every time a demand was made in its name!

   But this sedimented, automatic habit of legitimacy-recognition can be destabilized. Consistent with the habit’s important role in gilding grounds for the justification of normative validity claims, individual speakers may contemplate such claims with the help of their *entire* array of tools of normative evaluation, including moral principles. (Hence my use of the term “coherence theory of law” above.) As the moral propriety of a legal norm decreases, we might expect moral grounds for rejection of the normative validity of the legal norm (defined as a speech act to which the propositional validity claim of promulgation by a legal authority can be justified discursively) to overwhelm the sufficiency of “positivist grounds” for the acceptance of its normative validity. At this point, the links in the dialogue-chain that I’ve described as the very essence of the state may begin to snap, as communicative action between dialogue participants results in either consensus away from action justified on positivist grounds (and towards action whose claim to normative validity is justified on alternative, perhaps moral grounds), or intractable disagreement (perhaps rooted in the varying intensity with which the persuasiveness of moral and positivist grounds are felt). And we can expect the apparatus of the state (through the individuated yet communicatively coordinated actions of its remaining constituent actors - i.e., those still persuaded to cooperate on positivist grounds) to resort to violence as an alternative to rational persuasion through communicative action as a means of enforcing obedience and thereby preserving the state. If a critical mass of individuals begins to reject the normative validity of positivist grounds as a basis for the acceptance of proposed action, we might expect the general imperative of coordinated action that underlies all human societies to result in the formation of replacement authorities (again, dialogically), whose acts of norm-promulgation are more acceptable as a ground for the acceptance of the normative validity claims underwriting voluntary obedience to the promulgated norms themselves. Herein lies the texture and mechanism of secession, civil war, and a host of other social phenomenon that signal the breakdown of a formerly unitary political society. The terms of political dialogue change - via the changed justifications, or grounds, offered to defend validity claims - and collective action re-orients, one conversation at a time.

8. 8 Ben Samuel Nelson Jan 18th, 2007 at 10:22 pm

   Matt (Jan 16), the question for our purposes in this thread is, I take it, “What is society?” and “Is society choice?”. Law (or norms) may be the glue that holds together “society”, but to determine whether that even makes any sense, we have to have some idea of what “society” means. And if by “society” we mean something like “political institution” (in my sense), then we run into the logical puzzle I mentioned before. Questions like “What is law?” are always going to float in the background, of course; and they are closely relevant to the central concern; but they’re not front-and-center for the purposes of this thread.

   You’re right to be skeptical of the puzzle. I don’t mean for it to be decisive, or demonstrate an impossible philosophical roadblock. And you’re also right to point out that, in a sense, it only arises because we decide we don’t want to pay attention, we just “assume away” the real factors beneath institutions. But my point is, if we fail to assume them away, then we fail to really grasp the phenomenon of “society” is. We’re left talking about mere organizations without any theoretical end in view. At least one end, I think, is to explain interesting facts about institutions; but first we have to have some idea about what an institution “looks like”, so to speak.

   I think we agree on many points. I’m especially impressed by cognitive and discursive accounts of these matters. But I don’t know if they go so far as to recommend any stand on the positivist/nonpositivist debate, since I take our discussions at the present to be descriptive, i.e., “When do people regard the law as legit?” while the pos/nonpos debate is normative, i.e., “When should we regard the law as legit?”. (But I’ve taken issue with the normative endorsement of the “moral override”, even if the descriptive facts about how people really do make decisions based on a “cultural cognition” model are fairly clear.)

   I’m not sure where my view (which is more or less Russell’s view) fits with your “coherance” view. I’d have to know more about it. I can still give first impressions though. I worry that your view implies that there is some united, cohesive story behind peoples’s attitudes toward persuasion, both in terms of the means by which one persuades another, and the content which one intends to persuade another. There are qualitatively distinct ways that we persuade each other, and we’ll be happier to use some over others (i.e., your partner will probably not torture you to death for cheating at Monopoly). Also, we can’t presume people hold a cohesive story. Some conflate (for example) causation with moral blame, and the model of cultural cognition predicts that; but that doesn’t mean everyone engages in that kind of conflation.

   Your reading of Aristotle matches mine (fwiw).

   I’m going off to watch “Carnivale” now, will reply to the second post later!

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