Socialization Of Legal Norms In The Structure Of Law-Making Process

Socialization of legal norms in the architectonics of the law-making process (the problem of social orientation of positive law)

The constitutive thesis of the sociological concept of law-making (a kind of quintessence of a scientific approach) is the statement about the social nature of law and social origins of its formation. In contrast to the positivist theory of law, recognizing in one of its extreme manifestations the state monopoly on the trade law. It is a law, mainly of etatism orientation, when the will of a certain person (group of people vested with governmental authority) becomes a source of law. Sociological jurisprudence stems from the recognition of the primacy of the social context of the emergence, modeling, and operation of legal norms with their state-organized fixation and support in a proper way.

According to the authors' concept, the process of law formation goes through three main stages (taking into account the known conditionality of any process, including the proposed division of this complex one): 1) the appearance of objective conditions for the legal regulation of public relations; 2) lawmaking (establishment of legal norms); 3) socialization of legal norms.

The first stage is characterized by the formation of objective prerequisites for the formation of legal content (the emergence of needs for legal regulation under the influence of a complex of social law-forming factors) and the gradual transition of these objective attitudes to the area of public consciousness ( individual, collective ), which is associated with people's awareness of the initial needs for law and the formation of legally significant social interests of participants in public relations as interests that need a legal mediation.

At the second stage ( establishment of legal norms ) as a result of identification and coordination of legally significant social interests by subjects of the law-making competence, balanced legal ideas are formulated and parameters of future legal models are determined, the synthesized legal content is subsequently fixed (formalized), that is, the legal possibility is transformed into reality – real legal norms – by means of their positivity by state structures in the texts of normative legal acts.

The third stage ( socialization of legal norms ) is the introduction of formal legal regulations in the real life , which "legitimizes" legal norms as the current valid law. The resulting stage of the socialization of positive (formally defined) legal norms in a certain sense completes the process of legal creation by real "life", the action of legal norms in specific legal relations. It is accompanied by the onset of legal consequences for participants of social communication that meet their interests or contradict them. In general, the result of this stage may be the legal order expected by members of the society, and then it will be permissible to state that legal norms established in various forms (laws, decrees, resolutions, etc.) are a law . In the opposite case, in a situation of legal "disorder", legal conflict, violation of rights and freedoms of citizens, the principles of law and many other circumstances, we can state the effect of arbitrariness, the creation of "non-law" / "quasi-law". This is, in short, according to the author's concept, the course of a long process of the social transformation and the birth of law.

American legal scholars Berman (1993) and Hall (1976) (proponents of integrative jurisprudence) distinguish in law as a type of social action, a process in which norms, values, and facts are combined (as they were synthesized) such a property as the ability to "actualize", that is, the ability to be useful in each specific case and have real resources to solve a particular actual problem according to ideas and values inherent in law. Complementing this point of view, we believe it is possible to note that the updating of legal norms, in the context of the sociological understanding of the law-making process, is carried out at its third final stage, which with a certain degree of conditionality can be called the socialization of legal norms (Sokolova, 2003). It is at the stage of socialization that the process of assimilation of legal norms by the public consciousness takes place, accompanied with their introduction into the canvas of social relations, adaptation to real conditions, and direct impact on the social environment. Socialization , according to the American sociologist Parsons (2002), is not just a process of building up socially significant information, but its internalization, i.e. internal assimilation, perception as a value and behavioral imperative.

With regard to the socialization of legal norms , we are talking about the adaptation of legal norms to the social environment in order to finally confirm their status: whether they meet the objective needs of the social development, whether they are factors for achieving social harmony and reducing the level of social tension. Vital "verification" can lead to situations in which the adopted legal norms, being an act of the state will, but not having received the public approval and recognition, are not implemented or are mainly enforced, that is, they are ineffective. The publication and the onset of terms for the acquisition of legal force by normative acts do not yet indicate that a "law" has been created, and the law-making process cannot be considered as a fully completed one yet. Law becomes an objective reality only when it appears as an integral characteristic of the system of social relationships. If the law created by state structures through the formalization tools does not find a "response" in the society, does not become a part of forward and backward links in social systems (does not pass the so-called stage of top-down legitimation, socialization), then such a law remains "formal", but it is unlikely to be considered as "positive" one (as having a positive effect in specific social situations). In order the "formal law "( de iure ) becomes a "socially positive law" (effective de facto ), it should pass the socialization stage (top-down legitimation) in the systems of social and legal interaction. As long as legal regulations do not become elements of a society's way of life, a part of its consciousness and being, there is no reason to speak of them as a valid law. In turn, legal norms, that actually act, create an atmosphere of solidarity, cooperation, and integration, in other words, a "peaceful environment" in which participants in social communication exercise their subjective rights and legal obligations, demonstrating a kind of interaction and satisfaction of their interests.

Social-interactive mechanism of socialization of legal norms: Experience of theoretical and practical argumentation

Within the framework of the above mentioned aspects, an optimal picture of the law operation is presented: a law created in compliance with all strategically important socio-legal conditions, within the framework of a proper procedure that provides legitimacy, a constitutionally correct process that corresponds to the moral values recognized by this society. But it is acceptable to imagine a different model of legal norms – the opposite one, which leads to increased social tension, conflicts, and the generation of negative phenomena that openly or latently distort the social reality. This is an effect of legal norms that "distort" the nature of law, and therefore are "quasi-law" (imaginary, unreal), sometimes arbitrary, violating the values of our society. Being a rationalization of the empirical behavior of the state power, having passed the procedure of public control and recognition, the "quasi-law" is destined to be implemented mainly by force. If its systematic enforcement is confirmed by the law enforcement practice, it is a symptom of "low-quality", socially unjustified law-making and the basis for further improvement of legal acts and changes in the tactics and strategy of the legal policy.

The study of the mechanism of the legal norms socialization makes it possible to scan their "behavior" at a deep social (mainly microsocial ) level and identify causes and areas of their dysfunction, as well as to present a complete picture of the law operation and the possibility of a preliminary assessment of the adopted version of the legal regulation. In the space of the social field, the implementation of legal regulations, their transmission is carried out through the individual – a kind of a socialization "agent", acting as a link between the legal norms and consequences of their actions. The existence of a law here will be confirmed by every act of the social action of legal norms: the fact of the final recognition of legal regulations as a valid law depends on how they will be perceived by participants of legal communication, how they will be "implanted" in the social environment.

Tracing the "path of movement" of the legal norm from the moment of its entry into the legal action to a "contact" with a social fact, attitude, situation, to control which it is intended (where the central "link" is always "people/individuals"), we can conditionally highlight the main stages of its socialization process . These include, in particular, the following ones: 1) obtaining legal information; 2) understanding it; 3) evaluating and forming an image of a law; 4) forming a legal position; 5) a social action (Sokolova, 2003). At the same time, although these elements of promoting the legal norm in the social context are directly related to the personal (subject) level of socialization of legal regulations, this can only "work" in the environment of interpersonal (intersubject) contacts, in the course of social and legal interaction, which actualizes the need to use the law. Outside of this social and interactive environment , a law is meaningless. Therefore, you should refer to the socio-interactive level of the adaptation process of legal norms carried out in the course of the social interaction (socio-legal communication) of individuals, in other words, in the law actualization for a particular social context; understand the mechanics of the socio-legal interaction process (communication) as a universal form of the public life practice (social and legal life) (Polyakov, 2016).

For this purpose, we used simultaneously the analysis of problems that arise at each stage of the legal norms socialization, and problems related to social and legal interaction of individuals. The existence of a law is confirmed by every fact of the social action of legal norms, an action that is preceded by a number of preparatory acts. In particular, that is when individuals receive legal information that begins to "work" due to the rule enshrined in the law on the official publication of adopted legal acts, which is associated with the moment of their entry into force (unless otherwise specified in the law). This is the initial stage of socialization of legal norms, it is implemented in two main areas: the availability of legal provisions for understanding of the country's population (the observance of rules of legal technique as a prerequisite for their legal quality); the variety of modern communication channels, especially mass media and legal information resources of the Internet. Here we face problems not only of a theoretical and legal nature, but also of an applied nature: a growing base of normative and legal material that requires timely systematization, elimination of contradictions and gaps, most often as manifestations of violation of the hierarchy of legal acts, etc.

At the level of micro-social issues of law, there is a task to analyze a stage of awareness of legal norms, which is important for the successful legal socialization (understanding of their meaning, the essence of prohibitions, permissions, positive obligations, the content of subjective rights and measures of legal responsibility), the awareness by individuals and the legal staff. On the part of an individual, understanding and mastering legal regulations is required not only in a situation of the real legal communication, in which he acts as an actor of a social action (a subject of legal relations), but also in the position “citizen – state”, where both parts are mutually responsible for ensuring compliance with the Constitution norms and norms of other national acts. Their socialization is an important condition for the mutual recognition of rights of individuals and the state. In this aspect, knowledge of a law is not only the result of the information process, but also the processing of legal information, its clarification.

In the professional environment associated with the exercise of public authority functions, the motive for systematically improving the legal competence and erudition of the legal personnel, civil servants, and certain categories of non-state employees is their professional activity, which determines the regime of legitimacy and order in the state. Arsenal of their legal knowledge and competences is based on the professional interpretation and implementation of a wide range of legal documents. In the environment of narrow specialists (health care, higher education, trade, environmental services, and other workers), first of all, the norms of industry codification legal acts are socialized. However, all categories of subjects of the legal communication require knowledge and competences to understand legal regulations, the range of ways to acquire them in the modern society is quite wide: from obtaining professional legal education to the practice of complementary education.

The process of understanding legal regulations is directly related to their assessment, creating an image of a law and, accordingly, forming a legal position that allows the subject to develop a variant of his legal behavior based on the chosen legal regulation, and only then can we talk about the possibility of a social action that sets the legal mechanism in motion. These manifestations of socialization of legal norms lead to subsequent legal communication, the success of which is determined by the level of mutual understanding, recognition and development of their social consciousness as social values (using a term of Parsons (2002), the level of "generalization of values"). In this regard, when developing the concept of a future legal act at the initial stage of the law-making process, it is so important to conduct a procedure for coordinating values (moral, social, legal, traditional, etc.) and include them in the strategy of the state legal policy – legislative and law enforcement (Sokolova, 2019). From the standpoint of a sociological view of the process of its creation, it is important to observe the course of this process, of internalization (assimilation) by a person of collectively developed value-normative behavior standards (Parsons, 2002). Internalization of the motivation for an individual to observe appropriate norms in relation to collective interests and needs is a condition of the solidarity with collectives in whose system he has to act. In turn, solidarity is the most important aspect of the integration of a social system.

Social values, as a result of the collective recognition, are a basis of personal expectations, assessment , formation of a legal position of an individual and an expected from him behavior option in the legal communication – a social action that is corrected by objective and subjective conditions (personal psychological portrait, legal culture level, influence of the social environment, "quality" of legal regulations, etc.) depending on a situation. The nature of a social action is manifested in contact with a real fact, attitude, or situation. At this stage of the socialization of legal norm , the individual as a subject of law, a participant of legal relations, plays a major role in their implementation, "application" to real life circumstances. Therefore, the culmination of the final stage of the law formation – socialization of legal norms, is their actualization, "application" to the facts of real life; from the position of general sociology, it is a social action , based in this case on law. In the theory of Berger and Luckmann (1967), this appears as "habitalization" of behavioral standards in the social interaction structures (changing "subjective values" into "objective facticity", including legal standards (Polyakov, 2016).

The main social environment where the effectiveness of legal norms (legal rules) is established is the social and interactive environment . As it was noted by the famous Russian law sociologist of the XX century Sorokin (1914), "... a social phenomenon... is primarily the interaction of certain centers or interaction that has specific features..." (p. 32). At this level, a legal norm is tested for its quality and effectiveness. Specific subjects of law, specific social groups begin to use this or that norm and actually open it to the society as a whole. If at this level the legal norm does not show any defects, then we can say with confidence that this rule will be in demand in a wider field of social interaction. Important from the point of view of the issue of the law effectiveness is the question of how the legal norms are assimilated (adapted) in a socially interactive environment, whether they become a part of social relationships in this system or, on the contrary, interfere with the harmonious development of systemic social relations. The answer to it, in essence, will symbolize whether this law was created in the reality or whether it received only a text form (documentation), but it has not become and maybe will not become an effective social and legal resource .

To model the social and interactive environment of legal norms socialization, it is reasonable to take into account the scientific and methodological approach developed by Parsons (2000), which is defined as the general theory of action systems. This theory was first described in the work "The Structure of Social Action" (2000). This theory (theory of analytical realism) proceeds from the recognition of an external objective world that is not the creation of an individual mind and goes beyond an ideal order. Parsons (2000) develops a coordinate system, which is characterized by the following elements: 1) the protagonist (actor, "ego") – an individual or a group; 2) a goal pursued by the actor; 3) a situation or external environment of the action ("other", "others"); 4) normative orientation of the action, i.e. values and norms that guide the actor; 5) normative expectations – a system of expectations, requirements regarding the norms of the individual's performance of social roles).

Under "social" Parsons (2000) meant an action regulated by norms and carried out in the general context of a system of social values. Each action has a goal, to achieve which in the system of alternative means the actors choose those that meet not only their interests, but also the interests of contractors in the systems of social relationships (correspond to those normative expectations that are "set" by this social system). Normative expectations set a certain tone for the actions performed, correct (orient) the social behavior of a subject (Parsons, 2000).

The main provisions of the conceptual scheme of Parsons can be extrapolated to the study of the social background of an action as a subject’s behavioral act, which accumulated intellectual impulses received during the socialization of legal norms (awareness, evaluation of the legal prescription, formation of a legal position). Therefore, in the aspect of the socio-legal analysis, it is advisable to focus on the micro-section of the legal reality, on the socio-interactive level of measuring the main parameters of subjects’ behavior in the legal interaction. The idea of the social-interactive analysis of the validity of a law (a law action) is a promising direction in the knowledge methodology on interaction processes of social subjects in the legal relations model (Trofimov, 2002). From this point of view, a social legal action can be described as an interaction between individuals, the essence of which is the exchange of counter-acts determined by normative mutual expectations. It is this interaction of expectations that determines the orientation of an individual in the situation provided for by the legal norm. In the course of such interactions, models of behavioral standards are formed (which can later be expressed in the positive law) and formal legal regulations are socialized (adapted to the social environment).

If we are talking about putting into effect the legal rules adopted by the legislator, it is important to see to what extent they enhance the functionality of the corresponding social and interactive systems. If the applied rules violate the information exchange in the system, the normative roles are not accepted by subjects of legal interactions; first of all, due to the fact that they do not fit the normative expectations and are not assimilated in the minds of the participants of the interaction system, a normative conflict may occur. In turn, the lack of regulatory rules can be filled with those that will come from the interaction system itself, or the system will finish its existence in the original form. The social-interactive environment concentrates in the transformed form of external-instrumental influences from legal means (legal norms, etc.), accepting or rejecting them.

One of the central dilemmas characteristic for the social action, by Parsons (2002), is a kind of ambivalence (duality) – universalism – particularism (which is linked to the expression of requirements of two kinds: requirements to the interaction situation: subjects of an action consider its object from the point of view of the common norms and values, and their private (individual or group) rules). In other words, the interaction system combines two orientation types of the action subject – value (based on external symbols) and motivational (based on the interests of the actor). These typical variables at the level of social systems are considered as the basis for selecting and playing social roles that correspond to role expectations. However, this choice is made not arbitrarily, but under the influence of the social system where this or that actor operates, which is described by Parsons (2002) as a social subsystem of a human action, an "interaction system" or as a "system of interactions". In the course of a complex combination of functional variables in the system, the external regulatory framework of the system's functioning is transformed into the internal tasks of the system, as well as a reverse reaction occurs, the result of which can be a well-established and concretized standard, which focuses on the dynamics of the entire system and its constituent actors. If the external-instrumental orientation is "imposed" on the social system, then there is a so-called value (information) conflict or energy crisis (lack of motivation, motivational energy), which results in a normative conflict, and then a conflict in the social system (the system moves from a state of equilibrium (homeostasis) to a state of entropy or to the collapse of the system of social actions). In general, if a legal norm shows its defects, it will mean that the legal regulation in this part is not functional, workable, that is, the law formally exists, but in reality it does not exist, because the necessary measure of its legal influence has not been defined, and the proper legal regulation optimum which sets the social and legal mechanism in motion has not been created.