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Law in Modern Society$

Denis Galligan

Print publication date: 2006

Print ISBN-13: 9780199291830

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780199291830.001.0001

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The Social Value of Law

The Social Value of Law

(p.213) 12 The Social Value of Law
Law in Modern Society


Oxford University Press

Abstract and Keywords

Like the previous chapter, this chapter expounds on one of the two key points which is the social value of law. The social value of law refers to the role of law in regulating private transactions, imposing sanctions for criminal activity, and other activities that may contribute to social goods. In assessing the social value of law, the chapter uses an approach that considers how certain social goods promote a better quality of life, and looks into how law may be able to aid in attaining and securing each social good. It looks at the second methodological principle to determine the actual effects of the qualities of law since empirical methods of investigation are used to analyse how officials and citizens take law in hand. The chapter generally adopts a constitutive view to determine the influence of law in structuring society — a collective term for how law organizes the world ‘into categories and concepts’ and accounts for ‘thought and action’.

Keywords:   social value of law, social goods, quality of life, society

12.1 Assessing Law’s Social Value

The first question that must be asked is how is law’s social value assessed? The approach I propose is along the following lines. In modern legal orders, certain social goods are valued to the point of being considered essential, not just to survival but to a good quality of life. Many have nothing to do with law, but some do, among which the following should be included: security of private arrangements and transactions, protection of person and property, the provision of services, restraint on the part of officials, and maintenance of the legal system. Others could be added as sub-sets or independently, an example of the first being the division of protection of persons and property into criminal and tortious acts, and the second example good relations among nation states. The next step is to inquire how law can help in attaining and making secure each social good. This step should be regarded as primarily a description of law’s qualities, as part of the mapping of law, in accordance with the first methodological principle. In order to know what actual effects the qualities of law have, we look to the second methodological principle. According to this, officials and citizens receiving law are introduced and empirical investigation is conducted into the way they deal with it. This is the test of how well law performs its tasks. The first step is undertaken in this chapter, although inevitably some reference is made to the second. A feature of the approach is that, by taking account of the role of non-legal formations in attaining social goods, the error of imagining that law is uniquely capable of doing so is avoided. The approach instead includes consideration of how law adds to these other social formations and forces, or, in some cases, competes with and opposes them. The second step of introducing officials and citizens into the process is taken up directly in Chapters 15, 16 and 17.

In proposing this approach to law’s social value, I am adopting a view of law as instrumental to social ends; that, after all, is the main reason for having law. To some, however, the true social value of law lies in its being (p.214) constitutive rather than instrumental, and since this idea has gained quite a following, a brief comment should be made. Constitutive means viewing law ‘as a more pervasive influence in structuring society than as a variable whose occasional impact can be measured’.1 This is an important aspect of law in society that, as B. Garth and A. Sarat rightly contend, should be taken into account. However, their claim needs to be modified. Structuring society appears to mean two related but different things. One is that law organizes the world ‘into categories and concepts’, the other that it frames ‘thought and action’. Law, as we saw in the preceding chapter, ‘organizes’ nothing; law can only state its own categories and concepts, leaving it for citizens and officials to organize the world in accordance with them, or not. The world is organized according to law’s categories and concepts only if and when people make decisions and apply them in practice. The expression of law is one thing, how it is received by officials and others a quite separate thing. That, it will be recalled, is the point of the distinction between the first and second methodological principles; it is also the reason for separating the architecture of law from its environment.2 The idea behind the constitutive approach can now be seen. It refers to the way that, quite apart from the use of specific laws to achieve specific social ends, law’s categories and concepts infiltrate into people’s attitudes and understandings, and in this way affect and influence (or ‘frame’) their thoughts and actions. And, I would add, the main vehicle through which that process occurs, and the best way of understanding it, is the notion of social spheres. Whether as a direct instrument to social ends or an indirect influence on attitudes and understandings, law is received into social life and social consciousness through the mediation of social spheres. There is no question of having to choose between the approaches; both unlock lines of enquiry in the study of law in society.

12.2 Need for Central Legal Authority

We are accustomed to the idea that state legal authority brings with it social advantages. A society with a developed legal order is able to achieve social goods more effectively than would be possible in a pre-legal order that lacks central legal authority. Recognition of state law as having final authority is unlikely to be sustained unless it adds to the capacity of other (p.215) social formations in achieving social goods. What, then, is the distinctive value state law brings to the task? The answer begins with a statement of the case for central legal authority. The kernel of a society is co-operation among its members. Unless we co-operate with each other in a multitude of ways, the barest elements of social order are unattainable. At the same time, it is not always clear that co-operation at any particular time is in my interest or yours; it may be to my advantage to withdraw from a relationship or transaction at the last minute, or it may be to yours. So the question is: what keeps us in, what is the incentive to follow through to the end? This is often expressed as the Prisoner’s Dilemma, which is an abstract way of depicting a range of situations in which neither participant knows what the other will do: co-operate or withdraw.3 Analysts of the prisoner’s dilemma are united in thinking that no matter what the other player does it pays each to withdraw before completion, unless there is an additional incentive to cooperate. Robert Axelrod, whose work has become a point of reference, concludes that the necessary incentive is whether the players are likely ‘to meet again in the future so that they have a stake in their future interaction’.4

Reciprocity and mutual advantage are then the basis of co-operation. Both are served by knowing how others will act in diverse situations and being able to rely on their doing so. Reliance is implicit in some relations, those among friends or within the family; in other cases, relations among strangers being the most usual, social rules become the basis of reliance. They simplify social situations and create certainty in exchanges and interactions.5 Here we need to broaden Axelrod’s account by introducing social spheres: social rules generally occur within social spheres, which are wider than rules and include conventions and understandings from which rules emerge. Social spheres build on social relations and, in providing for the continuity and security of those relations, foster co-operation. Social co-operation normally occurs within social spheres and is guided by the conventions and understandings of which they are composed. If transactions or relations cut across two or more social spheres, another layer is available embracing them both and furnishing the basis for accommodation. Social spheres of different density and scope make possible daily exchanges and interactions where expectations are created and fulfilled. The picture of society is not unlike that of organic solidarity, (p.216) which, according to Durkheim, results from the division of labour, and within which each person can pursue his or her own ends, while at the same time reinforcing social order through co-operation, where law plays a major part.

If the twin goals of self-interest and social co-operation are satisfied through spontaneous social spheres, what is the need for central authority? What can it add to a world already highly structured by conventions and understandings? The answer is that co-operation is essential but not enough; there must also be co-ordination. The two might seem so similar as to amount to the same thing, but are importantly different: co-operative activities need to be co-ordinated if common goals are to be achieved. That can happen, as John Finnis explains: ‘only if the…particular options [pursued by individuals] are subject to some degree of coordination’, which in turn depends on some person or body whose ‘prior concern and responsibility is to care for the overall common good’,6 where the common good means achieving basic social goods. Authority then is both necessary and simply defined: it is necessary in order to move beyond co-operation to co-ordination, and it is exercised by whomever as a matter of fact is able to bring about co-ordination.

Explanations of central authority in these terms are familiar, but incomplete in two respects. In the first place, they project (perhaps unintentionally) an image of society in which individuals pursue their own interests without reference to their doing so in an environment already highly coordinated by social spheres. Individuals sometimes go their own way and flout the constraints of social spheres, which anyhow vary in their density and the guidance they give. Nevertheless, by and large, they provide not just the basis for co-operation but a high level of co-ordination. But that is not always enough to eliminate the need for central authority; social spheres cannot always cope, perhaps because issues are too complex, requiring a special collective effort as in the case of emergencies, or because of conflicts between social spheres, or because social spheres take a direction unacceptable to society at large. The image, then, is of social spheres being effective in co-ordinating daily activities, leaving the state as the ultimate authority to intervene when they fail, rather than its bearing the primary responsibility. This brings us back to the now familiar question as to when state authority should intervene, which is in turn to ask what particular contribution central authority is able to add to those other, more spontaneous processes of coordination.

(p.217) Another modification to this account of central authority relates to the difference between co-ordination and regulation.7 The notion of co-ordination is hardly adequate in portraying the role of the modern state in directing society towards positive ends and goals. It does not take account of the world of difference between providing a uniform law of contract and restricting a range of activities in order to promote human rights, the environment, or the interests of shareholders. All such activities are, in a sense, co-ordination, but they are also different, and some are more accurately described as regulation, suggesting not only a more active and positive role on the part of central authority, but also one that meets resistance from informal social formations. Informal social formations have a regulatory capacity, but the form of regulation so common in modern societies imposes external goals on existing social spheres. A bank may come to see that the adoption of anti-discriminatory standards is in its interest, and willingly adjust its practices without legal requirement. Banks and others are not always so conscientious, so it is for central authority to introduce such policies by law, and then take measures for their enforcement. Whether this is an effective way of bringing about change to existing practices raises another set of issues, but regulation is so common that it must be regarded as a central part of state activity.

12.3 Law’s Organizational Capacity

In order to obtain a clearer sense of how state law contributes to social goods, we need to be reminded of its attributes. Hart’s account is now familiar: an imagined pre-legal world of only primary rules lacks certainty; it also lacks regulations for changing the primary rules and for adjudicating disputes about them.8 The capacity to make clear and certain rules, to change them as conditions require, and to settle disputes authoritatively are, according to Hart, the gifts of a mature legal system, an idea that fits well with Weber’s idea of modern societies being based on rational legal authority, a notion encapsulated in clear and certain legal rules administered by a professional bureaucracy.9 But rules and officials, although essential, are not enough either to distinguish law from other rule-based orders or to explain its capacity in organizing society. Around (p.218) those two foundations other elements have to be added: legislative bodies have extensive powers to make laws; they claim authority over other associations and organizations; officials are grouped together to form powerful organizations as government departments and agencies; officials have the power to enforce their decisions. The bare description of legal authority gives an inkling of its capacity but does not capture the full significance of this combination. Consider rules: rules are rules, and legal rules are similar to other rules; but they can be made clear and comprehensive by the organs of government at a level more difficult to achieve in other contexts. The processes for change, application, and adjudication are also capable of attaining precision and authority that are often lacking elsewhere.

These institutional and organizational aspects are crucial: law is made, administered, and judged by sets of officials who are organized, specialized, and divided according to the tasks they perform. These factors allow and encourage a systematic approach that nurtures among officials a sense of detachment and autonomy; it also encourages bureaucratic rationality. Each government organization, with its institutional base of rules, conventions, and understandings, becomes concentrated on performing specific tasks effectively and efficiently, whether making laws, interpreting them, or applying them. At the same time, the organizations and institutions of state, for all their variety, form a fairly cohesive whole, sharing the common enterprise of coordinating society through shared authority. Legal officials are able to view the society as a whole and arrange its affairs in a way not normally available to other centres of authority. They are helped in this by being able not only to make final and binding rulings, but having at their disposal and under their control the resources of the state, and the capacity to enforce the law and their decisions about it. And finally, the law’s claim to final authority allows officials to intervene in other social contexts, sometimes to support them, at other times to constrain or direct them.

These qualities taken together convey a sense of the awesome capacity of state legal orders to control and organize society; I refer to it as their organizational capacity. Organizational capacity is present not only in good and tolerable legal systems but also in the bad, for as we learn more about law in Hitler’s Germany or Stalin’s Soviet Union, it becomes plain how much their regimes of terror depended on it. In a modern society, the organizational capacity of the state is itself regulated by law, reflecting the bond of trust between it and the people; in a pre-modern society that bond is absent, and to the extent controls exist they are not legal. (p.219) One strength of a state’s organizational capacity is the ability to view society as a whole, and to provide for it by sets of general rules, sometimes streamlining existing activities, at other times changing them. By the enactment of authoritative rules, law can bring certainty, clarity, and generality to social situations, a capacity that is especially important when informal practices vary in such matters as, say, the transfer of property or the making of contracts. Its capacity to deal with complex situations of the kind encountered in business and finance is another sign of its utility. The claim to overriding authority, the support of an administrative and judicial structure, and the power to enforce, all add to these strengths and make it a formidable social force, whose utility lies not only in reinforcing existing practices, but in changing them in the pursuit of positive ends and goals. And finally, its tendency to autonomy signals a degree of detachment from society, and insulation from social pressures.

Several weaknesses are equally apparent: the tendency to autonomy means that law is external to the formations guiding everyday activities and often remote from them. Its capacity to systematize and its tendency to autonomy distance it from spontaneous social practices, making it less responsive to them. Law’s mode of operation is blunter, less subtle, more rigid, and harder to change than the more fluid conventions and understandings of informal spheres. Its bureaucratic structure is cumbersome and may serve the interests of factions or officials, rather than the common good. Its threat of coercion can be alienating and encourages strategies of avoidance, while resort to coercion is a sign of the failure of law to be adopted into organic practices. And most of all, power in the hands of officials has its own dynamics, whose main features are the tendency to seek more power and resistance to controls. The central dilemma for modern legal orders, as we see time and again in the discussion, is that organizational capacity is necessary to achieve their ends, but poses risks to the social relations they are meant to serve. A more complete analysis might uncover other factors to weigh in the balance, but enough has been said to show that legal authority, despite the power and force at its disposal, has drawbacks which affect its capacity to co-ordinate and regulate. It confirms the obvious but still important point that the utility of law in achieving social goods is likely to vary from one context to another and according to factors that can be stated in advance only in general terms.

Having seen the organizational capacity of state legal orders, we now move to consider its application in specific settings. Two factors guide the analysis: one is the need to achieve social goods, the other the (p.220) contribution law can make to it. The social goods are divided as follows: security of private arrangements, protection of person and property, attainment of positive goals and values, restraints of officials and maintenance of authority. The aim is to show the contribution of law to these social goods, without using the language of functions and without having to assess its general support for society; instead, general support is judged by its contribution to specific goods.

12.4 Securing Private Relations

Law is used to support and make secure arrangements and transactions entered into by individuals, groups, and entities. These include matters from simple contracts to complex financial transactions, from the making of wills to the creation of associations of a corporate, professional, or trade character. They include marriage, trusts, and complex property schemes. Arrangements and transactions of these kinds arise out of and are a natural expression of relations between private parties, including individual persons, groups, and legal entities, which they enter into for their own purposes and generally of their free will. As part of everyday social life, communities devise ways of conducting these activities and protecting them; they develop formal and informal rules for the purpose. It is not as if, as Hart contends, these activities are made possible by law, that law creates rules where none existed before; on the contrary, private arrangements and transactions are entered into and conducted as an integral part of social life according to conventions, understandings, and informal rules. The liberty to engage in such private activities, subject to certain restrictions, is held to be of an essential feature of liberal societies, an expression of fundamental social relations. If the transactions of daily life occur within and are governed by ‘dense social network(s)’, as Douglas North describes them,10 networks often created or consolidated within the social spheres of guilds, professions, and business associations, what can law add?

A standard claim is that such networks are effective for small, close-knit, communities, but are of limited use beyond them and are certainly not for complex societies. The evidence is not so clear, with dense social networks being capable of extending beyond the local and familiar to national and international arenas. The practices of merchants, the lex mercatoria and its modern equivalent, are examples of rules and networks (p.221) governing international trade, with both evolving from practice and being regarded as binding, largely independently of whether they became part of state law or gain recognition in national courts.11 The formation of networks of rules and practices governing activities important to the course of daily life and commerce is repeated, locally, nationally, and globally. How effective the networks are in co-ordinating such activities is still moot, although the fact that they persist suggests some degree of success. Since the rules grow out of real-life situations and are based on conventions and understandings, informal networks have advantages that law cannot match. In explaining what law contributes to private arrangements and transactions it is not enough to appeal only to its qualities as a co-ordinating mechanism, as if no other mechanism existed; we must consider instead the instabilities of informal arrangements and how law’s organizational capacity helps to overcome them.

Law has the potential to contribute in several ways. One is its role in facilitating the intersection of private relations and the conduct of affairs. Much of the need for assistance results from complexity: as societies depend on a wide range of exchanges, interactions, and relationships, informal institutions are likely to be stretched beyond their capacity. An increase in social activity opens the way for more complex transactions and disputes, as anyone with experience of the corporate or financial world knows. Multiple parties, the crossing of jurisdictional boundaries, and subject-matter intrinsically complicated, all add to complexity. Formal law, whether deriving from the state or other sources such as the international community, does not eliminate complexity, but it has the capacity to reduce it and provide a structure for its better management.

Another, perhaps more fundamental, issue is security. Here state law adds a layer of protection to transactions beyond that available through informal networks. Initially the security of private arrangements is based on family and kinship relations where trust is implicit. When strangers enter the scene, trust has to be found in other relationships, such as those based on common purposes, as found in early European guilds and corporations, vestiges of which survive in modern professional associations. Common purposes generate conventions and understandings, and are reinforced by sanctions. The risk of ostracism, whether from practising as a barrister, doing business in the City of London, or from the farming (p.222) community of Shasta County, is effective in ensuring that the conventions are honoured. However, as societies become more diverse and transactions more complex, the bonds of trust are weakened and often severed; transactions are conducted between parties who are strangers, being neither bound together by consensual ties nor by shared social spheres. Informal rules are more difficult to generate and the parties to transactions have less reason for respecting them. The risks of insecurity in contractual exchanges and property settlements increase, so that other ways must then be found to maintain reasonable security.

The basis of law’s utility is now plain. Through its legislative and judicial capacity it lays down rules for the conduct of private transactions; it has the agencies to administer, interpret, and manage the rules and, if necessary, to enforce them. Law adds to the informal transactions and arrangements by constructing around a framework that makes them more secure. By security is meant certainty, stability, and guaranteeing expectations. Take title to land: a community is likely to have ways of proving ownership. Originally it was a matter of common knowledge, later marked by formal symbols, and then by title deeds, which are in time replaced by a central register with the extra security that brings. Similar reasoning applies to contracts, to the modern corporation, to family relations, and many other activities where, in each case, law provides both a framework of rules and the organizational capacity to add certainty to existing arrangements. The law is normally compatible with the intentions and purposes of the parties, and adds to existing customs and practices rather than inventing new ones. It strengthens what occurs spontaneously and gives effect to the parties’ purposes, rather than opposing or changing them; its object is to facilitate and make more secure arrangements and transactions that would anyhow take place. Since law adds security, even if marginally, the parties have an incentive to co-operate with and make use of it. The extent to which law is needed depends on an assessment of the adequacy of informal arrangements and the benefits the law can bestow.

In addition to facilitation and security, the law exerts control over private arrangements. Control brings with it a change in social relations from those between private parties to those between private parties and officials. They change from officials’ supporting private relations to regulating them. The opportunities private activities offer for revenue-raising play a part, but in addition, the state claims a common or public interest in private transactions. A well-functioning private sphere is a legitimate public interest from which flows the law’s commitment to its facilitation (p.223) and security. Another public interest is in ensuring that private transactions are compatible with and respect other social goods and values.12 This is expressed in the setting of standards restricting the way private activities are conducted. The legal mode changes from facilitation and security to regulation. According to the regulatory mode, contracts must comply with standards of fairness and good conscience, while consumers, purchasers, and investors are given statutory rights to which contracts are subject. Ownership of land is also subject to restrictions based on such considerations as orderly planning and protecting the environment. Two senses of the public interest emerge: some restrictive standards, such as those protecting the environment, are justified by the general public good in having a sound environment; others are for the protection of one or other of the private parties, as in the case of standards relating to the good quality of goods and services. The consequences of the two modes of legal intervention also differ: laws facilitating and securing are likely to be in harmony with informal social practices, while the regulatory mode can be expected to run counter to them. The two modes are not strictly separate from each other, but intersect and intermingle, so that standards that seem at first regulatory and external may be absorbed into the social spheres of private parties, and reflected in their social practices.13 Regulatory standards may also remain external and foreign, making their adoption unlikely and their implementation problematical.14

We now have a structure for understanding legal intervention in private arrangements; it leaves open questions to be answered and issues addressed in relation to specific areas of law. Two additional points merit comment. The general approach does not dictate when law should intervene, or the right balance between law and informal social practices, or how effective legal intervention will be. Legal support for private arrangements, combined with the capacity to enforce them, is said to be ‘the critical underpinning of successful modern economies’.15 More empirical evidence is needed to support this view, which on its face seems compelling. It is not a case of the more law the better; nor does it show in which areas of private activity law should intervene or what form it (p.224) should take. Those matters are decided after taking account not only of the advantages law offers, but also other considerations, in particular, how effective the informal arrangements are; what effects law would have on them (and they are not always good effects), whether the result would be greater effectiveness, and the added costs that might be incurred. The use of law in relation to private arrangements is plainly increasing, sometimes to add to and strengthen them, but at other times for extraneous reasons; since law is a powerful instrument, it is always at risk of being used for factional or ulterior ends.

A second issue for comment is the balance between the two modes of legal intervention, facilitation and security on the one hand, regulation on the other hand. The parties to transactions generally welcome the first, while finding the second problematical. Behind the two modes of legal intervention lie different justifications and ideas about the balance between private and public spheres, between private and public law, and between individual liberty and state control. Modern societies are characterized by both liberal tendencies and the active pursuit of social goals, with tension between them being inevitable. Compromises are necessary but untidy, and prone to lead some to adopt solutions that veer strongly towards one mode or the other. Voices condemning practically any legal intervention in private arrangements may tolerate measures aimed at making them effective, but not regulating them. Rivals at the opposite end of the spectrum argue for a new conceptualization, according to which regulation becomes the dominant mode superseding facilitation and security.16 The change in social relations entailed in such a move has dramatic consequences: in place of relations between private parties being the dominant mode, with relations between them and officials of secondary importance, the reverse would be the case. The dominant mode would be social relations between private parties and officials, with those between private parties being of secondary concern. We need not adjudicate here the political and ideological merits of such a reversal, except to suggest that modern legal orders, as presently conceived and structured, assume the importance of both sets of social relations and the need for balance and compromise between them, rather than the domination of one by the other.17

(p.225) 12.5 Security of Person and Property: The Criminal Law

The criminal law, appearing to be at the opposite end of the spectrum in specifying what constitute criminal acts and the punishments for transgression, protects fundamental social goods and the social norms to which they give rise.18 Integrity of person and property warrant the special protection criminal law and criminal justice provide. Without that integrity other social interactions are inhibited and the settled social relations constituting a society become impossible to form. The criminal law has a dual task: to protect each person from the other and to sustain the foundations of society. Durkheim’s account captures well the significance of the second task: the criminal law protects the values of the society, which by the punishment of violations are reinforced and social solidarity strengthened. The task of criminal law is to deter and ‘to induce people not to cause harm of serious kinds’.19 It is also to make possible the formation and continuation of society.

The harm to which criminal law is directed goes beyond the protection of the person and property to include a large number of actions that are not traditionally considered criminal. The harm here is of a lesser order of seriousness and is often based on social goods, such as a clean environment, sound governance of companies, or health and safety of the workforce. In order for laws on these matters to be taken seriously, enforcement is necessary and that usually means making non-compliance an offence. Whether regulatory offences should be regarded as criminal offences is debatable; they are often of strict liability so that the usual standards of culpability need not be proved, and the harm at issue is often best considered as social rather than criminal. But for the law, some would not be regarded as harm at all.20 Let us put these aside for the moment, for they are more suitably considered under regulation in 12.3, and focus instead on the more traditional sense of criminal law, realizing that it is not an exact term and lacks consensus as to its content.21

(p.226) However hard to define precisely, there is a core of harm to persons and property, which is commonly condemned by communities and against which protective action is normally taken. Criminal law is based on this harm and adds an extra layer of protection from it. In this sense, criminal law has more in common with laws facilitating and securing private arrangements than first impressions impart, for both express spontaneous social relations and strengthen the social norms to which those relations give rise. If communities are resourceful in devising informal ways of deterring potential offenders, and punishing actual offenders, as we should expect they are, then what social value is gained by criminal law and process? The usual answer is that criminal law is somehow constitutive of society, so that without it society would collapse or be very different. Criminal law, then, bears a heavy social burden. The answer, however, conflates two ideas, one that the most elementary social life is possible only if certain harms are condemned and prevented, the other that state criminal law is needed to perform those two tasks.22 The first idea is true and may be justification for the law being used to protect against such harms; but from that it does not follow that law is necessary for the task.23 Conflation of the two ideas assumes that, without state criminal law, communities would be unable to protect themselves and social relations would be impossible. This is untenable anthropologically and historically; state criminal law may add to the protection informal processes provide in maintaining basic social relations, but that is not an adequate explanation of its social value.

While a complete account of its social value needs a treatise of its own, there are several lines of argument that at least set the scene for further consideration.24 One is the organizational capacity of modern legal orders; another the tendency towards localization in defining and dealing with crime; the third is the import of legal values. The organizational capacity of the modern legal order, as explained above, enables officials to state the criminal law with acceptable particularity, to detect, investigate, and prosecute suspected offenders, and to take punitive and deterrent action against them. The social impact of actions being declared illegal, and the majesty and solemnity of the criminal process, derive from the (p.227) organizational capacity of the state. The criminal law’s relative effectiveness in deterring the commission of crimes and its connections to justice are due to that capacity. If the legal order lacks that capacity or loses it, society does not necessarily collapse into disorder; since the core of criminal standards is normally embedded in social standards, other informal mechanisms are triggered into action. The disadvantage is that they are unlikely to be as effective over time, or to be applied evenly throughout society.

The tendency of local communities to develop localized norms contravenes the expectation in modern legal orders that the same law applies to everyone. There is no inherent reason why local communities should not define their social relations and the norms protecting them, as is their natural inclination. For a modern legal order, however, more than minor variation cannot be tolerated, for two reasons. One is the claim of authority over other rule-governed activities. The other is the social good of equality before the law, which entails that the law is approximately the same for all. If one questions the value of equality before the law, questions, in other words, why local communities should not be entitled to shape social relations as they wish, then two replies are available. The most simple and straightforward is that equality before the law is highly prized in modern legal orders; it is a defining feature and has entered into social relations. The other is more an empirical claim to which there are many exceptions, but which is likely to be proven generally true: leaving the definition of criminal actions and their enforcement to local forces, being so closely associated with the very survival of the community, encourages distorted attitudes that result in unacceptable harshness of definition, unjustified punishments, and the propensity for discrimination against members or groups. History is replete with examples, and although modern legal orders have not yet escaped from a primordial legacy of excessive punitiveness, progress has been made and, so long as such orders survive, it may be expected to continue.

Equality before the law leads on to consideration of other social goods expressed in notions of due process and a fair trial. That both are imperfectly achieved in practice does not detract from their importance, for in common with equality before the law both could be claimed as among the basic social goods of modern legal orders. It may seem paradoxical that their main practical task is to moderate the organizational capacity of the state, whose importance has just been extolled. A moment’s reflection resolves the paradox: organizational capacity imports one set of qualities in sustaining the criminal law, but in doing so runs the (p.228) risks inherent in officials holding power. Modern legal orders rely on officials’ having powers, but at the same time must contain them in order to ensure respect for their equally important relations with citizens, one expression of which is the right to due process and fair treatment at the hands of officials. The dependence of rights on the powers of officials on the one hand, and trust in their capacity for self-restraint on the other hand, compounds the paradox. Here resolution is not so easy, there being no alternative but to record that, while self-restraint by officials is fragile, it is also a pillar of modern legal orders.25 If the dilemma is how to maintain the balance between power and restraint, the contrast with informal mechanisms for criminal law enforcement is striking: they have neither the capacity nor the commitment to structure such mechanisms in accordance with the social goods of due process and fair treatment. They lack the first because capacity requires organized officials, the second because, according to their social relations, the protection of person and property, being so basic to personal and social survival, is unmediated by competing relations. Without competing relations, notions of due process and fair treatment have no social base.

My purpose is not to propound a full account of the social foundations of criminal law, but to show its social value in modern societies. In ending, there is one loud note of caution to sound. One of the assumptions on which ideas about criminal law are based is the essentially harmonious relationship between social relations and norms on the one hand, and legal definitions of crime on the other hand. On this assumption, criminal law has its origins in social relations, and is then taken over and supported by state law and its agencies. Law takes over both the definition of crime and its enforcement, but does so in a way aimed at maintaining close links with the social relations from which it originates. Without close congruence between the two, the legitimacy of the criminal law and the state’s capacity to enforce it would be severely limited. It is probably true to say that the core of the criminal law, its most fundamental prohibitions, retains in modern legal orders reasonably harmonious relations with social standards, which, of course, it helps form. At the same time, a source of tension is the tendency to use the criminal law as an instrument for other social and political ends, whose pursuit, far from being in touch with social standards, is contrary to them and aims to change them. The criminal law takes on a positive regulatory role, rather than one expressing and reinforcing existing social relations (p.229) and standards. Its social foundations are weakened, it meets resistance, and its effectiveness relies on the threat of sanctions.26

12.6 Provision of Services

The provision of services of various kinds is a common feature of modern legal orders, the idea being that the state has responsibilities towards its citizens both collectively and individually. The source of such responsibilities can be explained in different ways according to the kinds of services, and how one views the organization of a society and its governance. Some services, such as education, transport, and policing are necessary for society’s survival and well-functioning, others, such as social unemployment benefits, the relief of poverty, and the provision of housing derive from a sense of collective responsibility for those who cannot provide for themselves. Some services are private arrangements between the provider and the recipient, others depend on state officials’ acting under legislative authority. The focus here is on the second category, itself diverse in the matters it covers. Since my purpose is to examine the role of law in providing services, concentration on services of a broadly social welfare kind should serve it well. By social welfare is meant the provisions of benefits necessary for a tolerable quality of life to those who need them.

The social relations underlying the provision of benefits are distinctive, different from those so far considered, and open to being framed in different ways. The broad relationship is between citizens and officials; it may be framed as the discretionary conferring of benefits by officials or as the entitlements of recipients. It is characteristic of modern societies that the state takes responsibility for providing a much wider range of benefits than previously. Many now taken for granted were historically not considered the business of the state and left to private associations to be distributed as charity. The landscape of Europe is marked by such charitable institutions as hospitals, schools, and alms-houses, whose origins date back to the medieval period and which were for centuries the main providers of welfare. The history of the great hospital of Santa Maria della Scala of Siena illustrates it well: in addition to serving the medical needs of southern Tuscany, since its early foundation the hospital was an orphanage, an alms-provider, and a refuge for pilgrims, all as a matter of (p.230) charity. It remains a hospital but now depends on state-funding, while its other charitable activities have long since passed to the Italian state.

The move from benefits as charity to being the responsibility of the state marks a major change in legal relations between citizens and state officials. A further and more recent change is the idea that benefits are entitlements rather than dependent on official discretion. Despite the tendency to speak loosely of rights to welfare, the position is complex and variable with some benefits having become rights, others remaining discretionary. The law may speak directly of rights, but often leaves it open or ambiguous to be inferred rather than directly declared. Even when rights are declared, their precise content and scope is liable to be subject to elements of discretion on the part of officials in interpretation and application.27 A more recent and similarly ambiguous shift in the relations between citizens and officials is marked by the growing practice of attaching conditions to the granting of welfare benefits in a manner intended to invoke the language and connotations of a contract.28

A neat but imprecise summary of these shifts and changes in legal relations would be: from charity to discretion, from discretion to rights, and from rights to responsibilities. Their history and causes are a matter of interest and importance, but not directly relevant to our present task of identifying the social value of law in providing services. The common ground with other sets of relations we have considered is plain, but there are also differences. The organizational capacity of officials must again be one of the obvious advantages of the state’s administering welfare and other benefits. The capacity to create legal structures setting out the basis of distribution, application, and administration of the law, and the arrangements for officials’ supervising each other are as important here as elsewhere. The creation of legal structures and the capacity to administer them is vital to, but goes beyond, the effective and efficient distribution of benefits and services; it means in addition the ability to move from relations of charity to legal relations based on rights and duties. That those relations are, in practice, ill-formed and variable does not detract from their importance and the potential for future development. To shift from social relations of charitable concern, relations that bear no legal consequences, to legal relations of rights and duties, is truly significant and rightly judged an indicator of a modern legal order. Its (p.231) natural partner is the related and by now familiar idea that other legal values also enter into relations between citizens and officials. Reasonable certainty in the law itself as opposed to open discretion; fair and suitable procedures for reaching decisions serve both the ends of accuracy, or rectitude as Bentham called it, and other values; and the scope for checking and reviewing decisions – are all ideals attached to law in modern legal orders. In identifying these social advantages, we should not ignore the disadvantages, including the bureaucratic character of government organizations, restricted ability on the part of officials to tailor benefits to the special conditions of each case, and the fact that benefits depend on entering into a legal domain and relations with officials, which may be daunting and discouraging to many for whom charity would at least be easier to collect.

12.7 Regulatory Laws

A feature of modern legal orders is the regulation by law of many ordinary activities in which people engage. What looks at first like a diluted version of criminal law is quite different, for where the criminal law, in its core sense, reinforces social standards in condemning harmful actions, those subject to regulation are normally legitimate. Regulation is a variable activity that is not confined to law, but for legal purposes it is usually defined as deliberately attempting to influence or control the activities of others by law.29 Since this includes just about all law, nothing is gained by calling it regulation. In order to give it utility, its primary sense is taken to be the placing of legal restrictions on activities that are legitimate, the point of regulation being to limit or control them in some way and to some degree, but not to prohibit them.30 The justification is that regulatory standards are based on goals and values important enough to warrant the restrictions. Manufacturing is a valued activity, both economically and socially, but should not cause undue pollution. Similarly, creating employment is a social good, but it should be performed in such a way that the workers are treated fairly and with care for their safety. Government and administration are themselves subject to regulatory restraints, with considerations of effectiveness and efficiency giving way to due (p.232) process and fair treatment. A hallmark of modern societies, and generally a desirable one, is that law should be used in this way to proclaim and advance values that are held to be important. Importance depends on someone’s point of view, and who that someone is constitutes another variable. Regulatory standards have their origins in statutes, constitutions, and international covenants, and how they emerge and become law is an issue that merits more research than is now available. Those that do emerge sometimes command wide consensus, although at other times they are no more than the demands of special interests or passing fashion. The hope in a modern legal order is that regulatory standards are embedded in general values, but even then it is to be expected that interests and sectors subject to regulation will not always be persuaded of their merit or that the costs of compliance are justified. At the sharper end of resistance, the imposition of regulatory standards is held to be an unwarranted restriction on private endeavour, a complaint often heard from some sectors of society.

The very character of regulation shows both the tension inherent in it and why law is needed to create and enforce it. On the one hand, the regulated activities are normally legitimate, while on the other hand, restrictive standards are also based on legitimate social goods. Regulatory law then faces two main difficulties. One is opposition from those who are subject to it; the other is that the regulatory standards, whose legitimacy depends on social support, vary as to the strength of that support. Some standards, such as those imposing safety standards at work, are welcomed by workers and their professional organizations, but invariably seen by employers as unwarranted or excessive. Other standards, of which the recent introduction of the European Convention on Human Rights into English law is a good example, have broad but rather weak social support, with the result that their impact on public and private activities is likely to vary and often be marginal. Sometimes the standards, being the invention of a minister, an agency, or the European Union bureaucracy, lack any firm basis in society. Attitudes to any set of standards are not fixed but are prone to change, as in the case of environmental standards, where studies show the early ambivalence of society towards them. They were novel, they had serious consequences for the economy of businesses, and their moral standing was unclear. Now the standards are more deeply rooted, have become morally compelling, and carry more weight against opposing considerations.

How do these factors relate to the role of law? Regulatory laws are aimed at directing behaviour to comply with new standards; they are (p.233) the instruments of government for achieving social goods by changing the behaviour of private and public bodies. A second consideration is the reaction of those whose conduct is being regulated. Regulatory standards are sometimes embraced voluntarily, and are most likely to be subject to two conditions: they must be approved of by the regulatees, and be capable of being absorbed into their activities without major change or disruption. Resistance is often to be expected; it may be so weak that compliance, even if begrudging, is not seriously inhibited, or it may be vigorous and resilient. The level of resistance depends on numerous factors, prominent among which is a perception of the standards as incompatible with the aims and methods of the activity, and with the attitudes, conventions, and practices that constitute and support it. Initial resistance may weaken in response to forces and factors other than the law. Social spheres are subject to many different influences, including current ideas and pressures within the wider society. The current concern for human rights is a good example. Organizations of all kinds, both public and private, are influenced by discussion, publicity, and heightened awareness, so that some adjustment to their social spheres and practices should be expected. Other examples could be added: concern for the safety of workers, the need for companies to be more socially responsible, and the growing knowledge of environmental harm – an analysis of each would show how the conventions, understandings, and practices in different contexts have been influenced by streams of social awareness, as well as by law. A third consideration is that the strength of social support for regulatory standards is also a variable affecting the level of resistance from regulatees; the stronger the social support, the greater the pressure on them to accommodate the standards. The strength of support also affects the regulatory body and its members, their attitudes, the mechanisms and strategies they adopt, and the difficulty of securing compliance.

The social value of law under these conditions is now apparent. It is to stipulate standards as to how an activity is to be conducted; to oversee their adoption by those to whom they are addressed; and, in the event of resistance, to take measures to bring about compliance. In setting new standards for society, law is at its most active; it is also here that the gulf between law and social spheres is likely to be most acute. This does not mean the regulatory process is simply a matter of setting standards and taking action to enforce them; on the contrary, although regulatory arenas are coercive, and regulatory bodies may usually invoke sanctions to bring about compliance, such a simplified description would be a (p.234) mis-description. Between the setting of standards and their enforcement there is a social world consisting of complex relations between regulatory officials and regulatees, where various devices and strategies other than direct coercion are employed, and where compliance effected though discussion, negotiation, and persuasion is probably a more enduring measure of success than enforcement. Nevertheless, the capacity for enforcement sets the tone and determines the environment of the social world of implementation and compliance. The obstacles law faces in changing behaviour and making regulation effective are considered later on.

12.8 Restraining Officials

Officials in modern legal orders have to maintain a fine balance between two opposing positions. Officials are necessary for the exercise of legal authority, while in its exercise they must sustain a particular configuration of social relations between themselves and the citizens. Undeveloped legal orders lack a secure base for restraining officials through law; with a legal framework that is piecemeal and fragmented, their basis for restraining officials is political rather than legal. Modern legal orders are different, for here trust is the basis of relations between officials and citizens, the terms of which are expressed in constitutional and administrative law. This is where the terms of delegation of authority, the restraining standards, and the lines of accountability are found. Social relations have two main aspects: between officials and the people collectively, and between officials and each person individually, whether as a natural person or through entities such as corporations, partnerships, or other associations.

The social value of law in sustaining relations between officials and citizens consists of two aspects: a structure of laws defining the powers and responsibilities of officials, and the conditions to which they are subject. They include notions such as officials having no authority other than that conferred by law, and the scope of any authority being limited by law. They include standards of fair procedures, such as hearing the case of parties affected by their actions, and a range of other principles aimed at rendering their actions fair, reasonable, and legitimate. The legal expression of relations between officials and citizens is dynamic and developing, as the full implications are realised and new notions become appropriate. Some legal orders have achieved a level of systematic maturity in expressing social relations and enforcing them; others have not yet begun the process, while many are in varying stages of transition. A prominent and difficult aspect of change from communism to liberal (p.235) democracies in the countries of central and eastern Europe has been the legal restatement of social relations between officials and citizens, and their implementation. Some laws, such as codes of administrative procedure, could simply be read against a new and different set of contextual factors, and re-interpreted without major change; other laws, such as those providing for judicial scrutiny and the transparency of officials’ actions, had to be adopted for the first time. The formulation of suitable laws is hard enough, designing suitable organizations and their institutional base, even harder; but the most taxing by far is the change of attitudes needed on the part of officials themselves. This living experiment in social and legal transformation illustrates the natural tendency of government bureaucracies towards autonomy and independence in wielding power; it also shows how difficult and unnatural it is for officials to reformulate their relations with citizens and restrain their actions accordingly.

The key factor in understanding the balance between power and restraint is that officials are responsible for self-restraint. The paradox of officials holding in their hands the power of a sovereign state, and yet being restrained in its use, is resolved by the creation of mechanisms enabling officials to control themselves. The high degree of self-restraint required in developing a tolerable level of social order reaches its peak in the exercise of power by officials. It is sustained over time by its transfer from being a personal matter depending on personal relations, to one that is de-personalized and expressed in legal relations. The means for doing so is a structure of rules, processes, and institutions. Informal social arrangements might have some success through other mechanisms. Under a charismatic leader, officials are expected to implement the leader’s wishes and are restrained by that imperative; where custom and tradition prevail, the necessary self-restraint is embedded at the deepest social level, since custom and tradition are a direct expression of social relations, rather than being externally imposed. Two things are different in modern legal orders: one is that relations between officials and citizens are direct rather than mediated through a leader’s wishes or the hand of tradition; the other is that officials work within a legal framework whose object is to supply the means for sustaining those relations.

In modern legal orders, the grant of authority to officials is objectified and a measure of autonomy granted to them, removing the elements of caprice in the one case, stultification in the other. The price of objectification and autonomy is restraint. Restraint is then made possible and strengthened by general rules and principles, according to which actions (p.236) are taken and justified, and by the diffusion of authority among several organizations, each with its own objectives, among administrative bodies and courts, inspectorates and ombudsmen, police and prisons. Implicit in the legal framework is recognition of the special relations between officials and citizens. There is also more: the legal framework marks a particular set of relations among officials. They run parallel to but transcend personal loyalties, hierarchical structures, and group interests; they provide the basis for one set of officials scrutinizing the actions of another without becoming involved in those other sets of relations. Here, then, we have a sketch of the value of law in restraining official actions, the capacity for which is a distinctive feature of a modern legal order. It builds on the notions of both Hart and Weber who saw, but did not adequately expand on, the vital place of officials (in the case of Hart) and bureaucratic organizations (in the case of Weber) in a modern legal order. Law’s capacity to create the conditions of official self-restraint could truly be considered the unique gift of modern legal orders; at the same time it is fragile and contingent, always competing with the natural forces of social power and bureaucratic organizations, always at risk of being overpowered by them.

12.9 Sustaining Legal Authority

Law’s capacity to contribute to social relations and social goods in the several ways shown is itself dependent on sustaining legal authority. That capacity is itself an aspect of law’s social value. On Hart’s account, legal authority sustains itself through its own rules, which provide for the making of law, its interpretation, and its implementation. Rules make provision for the institutions and organizations necessary for those purposes. One of the reasons Hart describes a modern legal system in terms of rules rather than sovereigns is the ease in explaining their continuity, their institutional basis, and the distribution of powers and duties among institutions. The practical expression of these ideas is again found in constitutional and administrative law, stating the general structure of institutions, powers, and limitations on them, the latter developing those ideas further, and applying them to a secondary level of institutions and organizations.

We should here recall the discussion of the rule of recognition, acceptance by officials of the system of rules as authoritative, and their settled disposition to act in accordance with it. Their attitudes and actions derive from social factors formed within their social spheres and on which they (p.237) depend for their strength. In one sense, then, the authority of law can be reduced to the attitudes of officials, which are conditional upon informal conventions and understandings. To take such an approach, however, would be to miss the point of law as a system of rules, for we have seen how officials subscribe to the system as a whole; that is, in accepting the rule of recognition, they commit themselves in a general way to all other rules made in accordance with it. The necessary modifications to the effect that officials in practice give variable weight to legal rules, while subscribing to the system as a whole, do not detract from its main point. The point being that a developed legal system contains rules whose purpose is to maintain itself. The application of the rules requires the actions of officials and others, but that process should not be confused with, nor thought of as another way of stating, the fact that law creates its own authority and makes provision for its continuation.

12.10 Conclusion

The discussion of the last two chapters can now be brought to a close. Chapter 11 began with an examination of the claim that law has functions to perform, including the preservation of a society and its good order. Several senses of functionalism were identified and the argument made that these were better described in the vernacular language, either of point and purpose or social effects. Whenever the language of functions is used, it can usually be translated into these more manageable notions; provided it is understood, which often it is not, that nothing is gained or lost by its use. The one exception is the familiar claim that law, as a system, has certain functions in sustaining a society. Although this lends itself to stronger or weaker formulations, I have shown good reasons for regarding the stronger as unfounded, on the grounds that they are based on circular reasoning, neglect the role of informal norms in maintaining society, and are unsupported by testable evidence. The notion that law as a system has certain tasks to perform, without which society would not be possible, could eventually be shown to be true, but so far it has not. To be sceptical about the stronger claims of functionalism is not, of course, to doubt the importance of law in society. But how and why it is important is best shown by abandoning claims about the system as a whole, and instead assessing its usefulness in achieving and making secure specific social goods. We have a good idea of the social goods we value in a modern legal order; the question then is: how do law and officials help in achieving them. In order to make such assessments, we must first have an (p.238) idea of legal authority and the capacity of officials grouped in government organizations. The next step was to consider how the combination of law, legal authority, and the organizational capacity of officials contributes to several examples of social goods. Not all have been included in the assessment; law’s role in tort and in international relations has been largely passed over, but the approach developed here could be applied to them and others. The analysis here should be seen as an approach, which could guide further research, rather than a complete project. We have also noticed the tensions and fine balances, the dangers and the fragility of law in modern legal orders, both in a general way and in relation to specific matters.


Assessing law’s social value

For another formulation by A. Sarat (and W. L. F. Felstiner): ‘…law is inseparable from the interests, goals, and understandings that shape or comprise social life. Law is part of the everyday world, contributing powerfully to the apparently stable, taken-for-granted quality of that world and to the generally shared sense that as things are, so must they be…. Interpretivists believe that law permeates social life and that its influence is not adequately grasped by treating law as a type of external, normative influence on independent, ongoing activities’.: Divorce Lawyers and Their Clients (New York, 1995), pp. 10–11.

For further statements of the constitutive or interpretivist approach:

M. McCann, ‘Law and Social Movements’ in A. Sarat (ed), The Blackwell Companion to Law and Society (Oxford, 2004).

J. Bringham, The Constitution of Interests: Beyond the Politics of Rights (New York, 1996).

Advocates of law’s constitutive role pay attention to positive law infiltrating to influence attitudes and understandings; they might also pay attention to law prior to rules and to the way social relations are themselves expressions of law: see Chapter 4.

On state authority and capacity

Norbert Elias in his classic account, The Civilizing Process, writes: ‘But when the external threat or possibility of expansion lapsed, the dependence of individuals and groups on a supreme co-ordinating and regulating centre is relatively slight. This function only emerges as a permanent, specialized task of the central organ when society as a whole becomes (p.239) more and more differentiated, when its cellular structure slowly but incessantly forms near functions, near professional groups and classes’. (p.315) He continues: ‘The formation of particularly stable and specialized central organs for large regions is one of the most prominent features of Western history’.

Private arrangements as regulation

For an excellent introduction, not only to tort law but as a description of private law generally, see: T. Weir, Tort Law (Oxford, 2002).

Hugh Collins has stimulated debate concerning the balance between private law and regulation in: ‘Regulating Contract and summarized in ‘Regulating Contract Law’ in C. Parker, C. Scott, N. Lacey, and J. Braithwaite (eds), Regulating Law (Oxford, 2004). The main claim is that contract law should be reconceptualized as a regulatory mechanism. From the reasons given for seeing contract law in this way may be extracted the general idea that the law of contract is a form of governance in that it constitutes ‘the basic rules governing most market transactions and, therefore, one of the principal sources of wealth’. (p. 13) As a form of governance, by which appears to be meant form of regulation, the law of contract should be analyzed according to the standards it sets and how effective they are. Although there are many aspects to this idea, only one general comment is recounted here.

The re-characterizing of the law of contract as regulation means a radically different understanding of social relations. Instead of contract being an activity entered into by private parties for their own purposes, it becomes an activity directed at the social goal of efficient markets. But why should we think of contracts in that way? Its drawbacks are plain. First, it ignores the social fact that people enter into contracts as necessities of daily life and for a host of different reasons which, in most cases, have nothing to do with markets or their efficiency. Second, it mistakes the description of a social activity – making and keeping promises – with consequences that may or may not result from it. Contracts may have effects on market efficiency, but that is a consequence of contracts not a description of them as a social activity. An accurate description has to make sense of the social relations and social practices expressed in contracting. Such a description supports a regulatory mode as opposed to a private arrangement mode only at the price of inaccuracy. Other aspects of the claim that contract is regulation are examined in Regulating Contract. See in particular the essays of J. Stapleton, ‘Regulating Torts’ and P. Cane, ‘Administrative Law as Regulation’.

(p.240) Securing person and property: the criminal law

The conflation of (a) society’s need to protect person and property and (b) the need for the criminal law is apparent in the following: ‘The criminal law…establishes rules of conduct whose observance allows us to enjoy life in society, and in addition provides punishment for violation of those rules, for the rule would not be taken seriously enough by enough people to be generally effective…’: H. Gross, A Theory of Criminal Justice, p. 10. See further N. Lacey’s perceptive introduction to A Reader on Criminal Justice (Oxford, 1994) and N. Lacey and C. Wells, Reconstructing Criminal Law (London, ‘second ed., 1998).

The social value of the criminal law is typically expressed in terms of its contribution to social survival. A. Ashworth writes as follows: ‘…the chief aim of the criminal law is to contribute to the preservation of society itself (Principles of Criminal Law (Oxford, 1991)). This is achieved by prevention and deterrence (see The Criminal Process, p. 23) and by inducing people not to cause harm of serious kinds (Principles of Criminal Law, p. 11). While these statements are accurate, my object in the text is to show the specific contribution a system of criminal law and justice makes to those general aims, which are also included in the aims of other social practices and mechanisms, and are not particular to criminal law and criminal justice. My argument is that their contribution differs according to different kinds of societies, and that modern legal orders have distinctive features, which in turn influence the tasks and the social value of criminal law and criminal justice.

The common law expresses criminal law in general standards rather than detailed rules, the justification being that this allows closer correlation between law and social norms and practices. It is arguable that because the criminal law is meant to express those norms and practices, its standards should be general and open, leaving them to be interpreted and applied in ways reflecting their origins. Where juries and lay magistrates are used, this is especially true, for both are a direct link to social norms and practices. See further: A. A. S. Zuckerman, The Principles of Criminal Evidence (Oxford, 1989) Chapters I and II. Zuckerman writes: ‘In the public debate about the right to trial by jury those arguing against its erosion do not rely on the jury’s ability to determine objective truth accurately. Rather, their argument is founded upon the desire to be judged by reference to the current social standards’. (p. 43)

It is one thing to accept that the contextual contingencies of legal standards inevitably vary from one community to another, especially in (p.241) jury trials, decisions by lay magistrates, and in relation to sentencing, but quite another to leave to each the definition of the standards themselves.

Provision of services

On rights in relation to the provision of services and the balance of rules and discretion, the following accounts are noted:

J. Baldwin, N. Wikeley, and R. Young, Judging Social Security (Oxford, 1992) is an excellent empirical study of the adjudication of claims for benefits in England and Wales.

I. Loveland, Housing Homeless Persons (Oxford, 1995) is another empirical study of considerable value in examining the exercise of authority by officials in allocating housing.

D. J. Galligan, Discretionary Powers: A Legal Study of Official Discretion (Oxford, 1986) contains an analysis of discretion from a broadly legal and contextual point of view.

C. Sampford and D. J. Galligan (eds), Law, Rights, and the Welfare State (London, 1986) contains a collection of essays on rights in relation to welfare and examines problems in relation to social and economic rights.

Law as regulation

For a greatly expanded sense of regulatory law, see the collection of essays in S. Piccioto and D. Campbell (eds), New Directions in Regulatory Theory (Oxford, 2002). Regulation is defined in the opening essay as: ‘the means by which any activity, person, organism or institution is guided to behave in a regular way, or according to rule’: S. Picciotto, op. cit. ‘Introduction: Reconceptualizing Regulation in the Era of Globalization’, p. 1.

Maintaining the legal order

Luhmann’s account is of interest and importance in showing how closed systems like law maintain themselves. The self-maintaining operations which he describes could not occur without the role of officials.

See further: J Raz, ‘The Functions of Law’ in Simpson, Oxford Essays in Jursiprudence.

Restraining officials

The centrality of self-restraint on the part of officials is part of the deeper social significance of self-restraint for modern societies; see: N. Elias, The Civilizing Process.


(1) An example of this approach is: B. Garth and A. Sarat, ‘Studying How Law Matters: An Introduction’ in Garth and Sarat (eds), How Does Law Matter? (Evanston, Ill., 1998).

(2) See Sections 2.4 and chapter 7.

(3) A recent account is: R. Alexrod, The Evolution of Cooperation (1984, New York).

(4) Ibid p. 20.

(5) For an explanation of social rules in this regard, see: D. North, op. cit.

(6) J. Finnis, op. cit, p. 233.

(7) Preliminary comments are made in Sections 8.5 and 8.6.

(8) H. L. A. Hart, op. cit., pp. 89–96.

(9) Some quibble about the move from a pre-legal to a legal world on the grounds that it is anthropologically inaccurate. This is to miss the point; the contrast is conceptual not anthropological.

(10) Douglas North, op. cit, p. 39.

(11) A recent study of the lex mercatoria is R. Applebaum, W. Felstiner, and V. Gessner (eds), Rules and Networks: The Global Culture of Business Transactions (Oxford, 2001). The study casts doubt on the independence of such rule-based activities from nation states and courts.

(12) See further: P. Atiyah, Introduction to the Law of Contract (Oxford, 2001, 4th edition).

(13) Intersection and intermingling of regulatory standards and voluntary social practices is an idea developed at length, although expressed in different terms, in: H. Collins, Regulating Contracts (Oxford, 1999).

(14) These issues are discussed in Chapters 15, 16, and 17.

(15) See D. North, op. cit., p. 35.

(16) Amongst a growing literature, the best case is made in: H. Collins, op. cit. For critical appraisals, see the essays in: C. Parker, C. Scott, N. Lacey, and J. Braithwaite (eds), Regulating Law (Oxford, 2004).

(17) For further comment, see Notes.

(18) For a valuable introduction, see: A. Ashworth, The Criminal Process: An Evaluative Study (Oxford, 1994).

(19) Ibid, p. 24.

(20) Regulatory offences make up a large part of the total range of offences and it is estimated that in England and Wales approximately half the total number of offences are of strict liability: Ibid, p. 24.

(21) For further discussion, see: H. Gross, A Theory of Criminal Justice (New York, 1979), pp. 4–12.

(22) Durkheim himself conflated these two matters in failing to consider non-formal legal mechanisms for condemning and deterring crime.

(23) Conflation of the two different ideas is another example of the functionalist fallacy discussed in Chapter 11.

(24) For an account that addresses some of these issues, see: D. Garland, Punishment and Modern Society (Oxford, 1990).

(25) For further discussion of the second paradox, see section 13.2.

(26) For further discussion see N. Lacey, ‘Criminalization as Regulation’ in C. Parkeret al, op. cit.

(27) The complexity and uncertainty concerning these matters is well illustrated in: R. Cranston, Legal Foundations of the Welfare State (London, 1985).

(28) For discussion of this trend: see A. Paz-Fuchs, Conditional Welfare: Welfare to Work Programmes in Britain and the United States (Doctoral thesis, Oxford University, 2006).

(29) See the discussion in: J. Black, ‘Decentring Regulation: Understanding the Role of Regulation and Self-Regulation in a Post-Regulating World’ (2001) 54 Current Legal Problems 103.

(30) Anthony Ogus’ analysis of regulation has been of very considerable help. See A. I. Ogus, Regulation: Legal Form and Economic Theory (Oxford, 1994).