Enforceability of law and the will of the people: Tyrannies of the lawmakers and those of people (original) (raw)

The Social History of Law as a Factor of the Rule of Law

Osteuropa-Recht, 2021

The rule of law, understood as ideology and legal rules, is believed to be a competitive advantage of Western civilization, supporting its sustainable development. Yet it can also be viewed as a social norm of citizens who respect the law and follow its commands. How does this social norm emerge in different societies? This question must be answered through the social history of the law in Western and non-Western societies from a comparative perspective. This paper outlines the main features of comparative socio-legal history and tests it on some significant historical examples. In the first part of the article, the authors propose a functional classification of legal systems into three ideal Weberian types-the law of judges, learned law, and the law of the authorities. It allows us to consider the origin of the social norm of the rule of law. In the second part of the article, the authors trace the transition from the ideal types to natural legal systems and identify the factors that determine the stability of the social norm of the rule of law where it originated. In the final part of the article, the authors conclude that, first, the social norm of the rule of law emerged in the societies where the law had been treated either as a means of resolving disputes (the law of judges) or as the rules of fair, correct conduct (learned law), for example, the Roman Republic, medieval England, continental Europe, and the Ottoman Empire. Secondly, the stability of the social norm of the rule of law seems to be explained by a "triangle" of factors, namely: 1) political competition where all participants understand the inevitability of compromise on the basis of the law, 2) law which is suitable for finding a compromise due to its internal merits, 3) a professional community of jurists who develop and apply law independently of the administration. Such a triangle is possible in any society where the law of judges or learned law prevails and where the majority of participants in the political process are ready to compromise based on the current law.

Social Norms and the Law: Why Peoples Obey the Law

Review of Law & Economics, 2008

This paper explores the relations between law and social norms and in particular, the case of legal compliance in groups. Specifically, this paper argues that the rule of law is a social norm interfacing the formal institutions of society with the informal ones. As social institutions, norms should also be analyzed at the societal level -a level of analysis that neo-classical economic accounts have failed to address due to fundamental premises of current economic theory. Theories developed in psychology provide a good working framework for social norm analysis in general and of legal compliance (rule of law) in particular. Extant evidence is consistent with the present argument.

Law without the State LEGAL ATTRIBUTES AND THE COORDINATION OF DECENTRALIZED COLLECTIVE PUNISHMENT

Most social scientists take for granted that law is defined by the presence of a centralized authority capable of exacting coercive penalties for violations of legal rules. Moreover, the existing approach to analyzing law in economics and positive political theory works with a very thin concept of law that does not account for the distinctive attributes of legal order as compared with other forms of social order. Drawing on a model developed elsewhere, we reinterpret key case studies to demonstrate how a theoretically informed approach illuminates questions about the emergence, stability, and function of law in supporting economic and democratic growth.

Law and Human Nature: The Social-Adaptive Function of the Normative Behavior

The objective of this article is to offer a critical (re)interpretation of genesis and evolution, object and purpose, as well as useful qualified methods for interpreting, justifying and applying modern practical law, all with the intention of putting philosophic thought and contemporary formal theory of reason at the service of hermeutics and juridical argumentation. Law is no more-no less-than an social-adaptive strategy, evermore complex, but always noticeably deficient, used to articulate argumentatively-in fact, not always with justicethrough the virtue of prudence, elementary relational social ties through which men construct approved styles of interaction and social structure, i.e., to organize and ethically improve political and social life in such a way as to permit that no free citizen-rich or poor-should fear the arbitrary interference of other social actors in his life plan.

Law's Evolving Emergent Phenomena: From Rules of Social Intercourse to Rule of Law Society

Law & Humanities eJournal, 2018

Law involves institutions rooted in the history of a society that evolve in relation to surrounding social, psychological, cultural, economic, political, technological, and ecological influences. Law must be understood naturalistically, historically, and holistically. In my usage, naturalism views humans as social animals with natural traits and requirements, historicism presents law as historical manifestations that change over time, and holism sees law within social surroundings. These insights inform my perspective in A Realistic Theory of Law. This essay, written for a symposium on the book, draws on the notion of emergence to elaborate the implications of naturalism, historicism, and holism for legal theory, further developing ideas sketched in the Conclusion of the book. Emergent phenomena arise in connection with objects or agents whose interactions produce qualitatively new features not found in its constituent parts. Two senses of emergence are contained in this idea: the e...

Second thoughts on “Law as an instrument of social change”

Law and Human Behavior, 1982

In a diverse and thought-provoking series of papers, the contributors to this issue seem to agree on at least one point: a significant change has occurred in the role of the judicial process in our society. Courts now take a leading part in the design or administration of many state ...