This authors consider problems of a complex interaction between law and society, search for a structure of a law formation mechanism in changing social conditions and its reverse impact on the social environment, and explain the social-interactive mechanism of legal norms socialization as the resulting stage of the law-making cycle. The authors use a sociological approach, its heuristic advantages and opportunities in the study of complex socio-legal processes. Special attention is paid to the role of socio-interactive (communicative) analysis in the study of law, the process of its formation. The article reveals the socio-interactive mechanism of the socialization process of legal norms, which is based on the interaction of social actors who use normative legal standards during the exchange of social actions. The adaptive function of the social environment is established, that ensures the adaptation of positive law norms to real social conditions. The authors concluded that the law formation is a complex socio-legal process, in which the social interactive environment plays a significant, positive law receives its actual "legitimation", assimilation from the point of view of real requests and needs of the social context for the relevant normative legal rules. State-legal decisions should pass the stage of socialization in the public environment in order to start acting in full force. Socio-interactive analysis of the law formation process, and in particular its final stage – the socialization of legal norms, can be considered as an algorithm for scientific understanding of the law-making process, problems and trends of modern law-making practice.
Keywords: Law formationsociology of lawsocialization of legal normssocio-interactive mechanismsocial actorssocio-legal communication
The humanistic potential of law, its social mission is to remove a tension and conflicts, to create a peaceful social environment, to establish an order and stability in the legal life of society. Social problems of modern life predetermine challenges to law, legal regulation, and legal tools, focus the role of legal regulators on resolving existing contradictions, and set a new task of understanding the purpose and possibilities of law in our society, as well as additional requirements to the quality and effectiveness of the positive law.
Law as a cultural phenomenon is traditionally studied within the framework of theoretical, historical, comparative, and analytical jurisprudence. Are these approaches sufficient to assess the potential of law and its regulatory impact on the social reality? What is the status of interaction between law and other social spheres – economy, politics, art, religion, and the human environment? Within the framework of the above-mentioned approaches, these links are not always obvious, which affects both scientific conclusions about the law and practical results in the form of created legal norms (tools). In order to present the law more fully and comprehensively, it is necessary to change the trajectory of the legal research, and transit from the trivial analysis of legal texts to the study of social and other contexts of legal regulators, observing the process of law adaptation in a real social environment (where everything is combined – from art to politics, from spiritual to material, economic aspects).
The scientific analysis of issues of complex interaction between law and society, the search for a theoretical structure that reveals the mechanism of law formation in changing social conditions and its reverse impact on the social environment, the explanation of the social-interactive mechanism of socialization of legal norms as the resulting stage, in a certain sense, completing the cycle of the law-making process are defined as the main tasks of this study. In the context of socialization of legal norms, it is important for our research to identify a special social world within which law is produced and operates (according to Pierre Bourdieu, within the "legal field") (Bourdieu, 2007) – the world of social and legal interactions.
Where and when does the law-making process begin and end, by whom is it carried out – in the offices of administrations and halls of legislative assemblies, or does it get its initial and completed contours in the real context of social and legal life as a result of practical interaction between social actors? An attempt to answer these questions and explain the logic of the law formation from the origin of the idea of legal modeling (regulation) to the implementation of the idea in the format of legal communication / interaction and, as a result, its social consequences is the task of this study. Special emphasis in the subject field is placed on the analysis of the social and interactive level of socialization of legal norms an important social and legitimizing stage in the structure of the entire process of the law formation.
Purpose of the Study
In the legislative practice of modern states, the issues of the quality of laws and their effectiveness remain relevant, both in theoretical and practical aspects. There is a crisis of confidence in legislation and legal regulation in general (not by chance, this topic was central by IAL Conference (International Association of Legislation) "The crisis of confidence in legislation", 25 October 2019, Rome, Italy. The problem is becoming global, but its extreme manifestation is observed in the post-Soviet countries.
The purpose of this scientific work is to conduct a comprehensive study of all issues related to the law formation in the modern society, social knowledge of the law nature, the development of philosophy and methodology of the law-making process, the search for ways to modernize national legal systems, restore confidence in law-making and its results – legislative acts that reflect the social needs of the society and expectations of their best satisfaction.
The methodology of
It is worth noting that in the past three decades, the sociological approach has been used more and more actively in scientific legal research in the post-Soviet space. In line with sociological jurisprudence in this study, it is assumed to describe the role of social factors at the stage of emergence of a normative legal model, when social conditions have an objective effect on the formation of the legal content, receiving and being fixed by a legal form (at the stage of law-making) and at the stage of implementation of legal norms created by subjects of the law-making process in the social life, where these norms acquire their real (not nominal) power, being socialized (perceived) on the level of social structures. At the same time, the considered process of law socialization is viewed through the prism of socio-interactive analysis, i.e. it is positioned as being carried out in the environment of social interaction.
In the book "Sociological Jurisprudence: Juristic Thought and Social Inquiry" Cotterrell (2017) defines the role of sociological jurisprudence as providing lawyers with recommendations on the choice of values included in legal decisions based on an intellectually justified and value-oriented idea of law. Why sociological jurisprudence? According to Roger Cotterrell (2017), sociological jurisprudence has been and remains an enterprise of lawyers who apply to social sciences for assistance by their own projects on analyzing the legal doctrine and institutions and improving the legal practice.
An interdisciplinary approach to describing the interaction between economic, legal, cultural, moral, religious, ethical, and other determinants of existing social reality is seen as a promising one in the modern science. In this regard, the monograph "Legislation in Europe: a Comprehensive Guide For Scholars and Practitioners", recently published under the scientific editorship of Ulrich Karpen and Helen Xanthaki (2017), describes the concept of "legisprudence (legistics, legistique)". It is an interdisciplinary, primarily theoretical science, that uses hermeneutical, empirical methods of social sciences to formulate and interpret legal texts. And at the same time, according to these authors, it is a practical science: it has a prescriptive and normative character. The practical approach is expressed not so much in the accumulation of knowledge, but in the orientation to direct actions that lead to the political rationality.
The theoretical and methodological basis of this research was the author's sociological concept of the law formation (Sokolova, 2003; Trofimov, 2009), as well, from the perspective of the sociology, problems of sociological theory of Sorokin (1914), Parsons (2002), Luman (2007), Berger and Luckmann (1967) formed the basis of the interactive (communicative) approach to understanding the society and dynamics of social phenomena.
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
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
At the second stage (
The third stage (
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
With regard to the
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
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
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
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
Social values, as a result of the collective recognition, are a basis of personal expectations,
The main social environment where the effectiveness of legal norms (legal rules) is established is the
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
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) –
Focusing on the sociality of the process of law constructing as a defining feature of its formation, it is important to emphasize that the law creation is not a one-act action of state structures, but is a long-term, cyclical, socially determined process. Law achieves its multi-faceted integrity by gradually changing from one state to another at each stage of its creation. The model of the law formation process, presented in the form of a single cycle of successive stages (the emergence of needs for a legal regulation, their identification and socio-legal assessment, norm-making / positivation of legal ideas by state bodies, socialization of accepted legal norms), allows scanning problems arising at each of its stages, including those that are related to the interaction forms of all actors participating in the construction of law.
The creative cycle of the law formation is completed when the theoretical model of the legal norm comes into contact with the social reality, when the public consciousness and behavior assimilates the law. The practice of its adaptation (socialization) allows us to assess the effectiveness degree, "quality" of legal norms, in other words, provides the empirical material that the relevant structures (legislative, scientific, sociological, and others) should monitor in order to constantly improve the legislation. This stage, in fact, results in the formation of a law and at the same time is the beginning of a new phase of its modernization. Therefore, a law as an effective means and result of the law-making process gets its "reification" in the real life (becomes an objective fact) only after passing the socialization stage, its perception by participants of the social and legal space as a vital resource.
The presented socio-legal (in our case, mainly social-interactive) analysis of the law formation process, and in particular its final stage – the socialization of legal norms, in which all the main aspects of this complex phenomenon are taken into account and synthesized into a single whole, can be considered as a kind of matrix – an algorithm of scientific understanding of the law-making process. In our opinion, such a scientific and theoretical interpretation (with a certain indisputability and debatable nature of certain provisions) can be used for understanding causes of the problems and difficulties that arise in the law-making and law-realization practice of modern countries, and may become a methodological basis for their resolution, act as an initial cognitive algorithm for the construction and conduct of the modern state-legal policy.
The research was carried out with the financial support of the RFBR in the framework of the scientific project No. 19-011-00726.
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01 April 2020
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Trofimov, V. V., & Sokolova, A. A. (2020). Socialization Of Legal Norms In The Structure Of Law-Making Process. In V. V. Mantulenko (Ed.), Problems of Enterprise Development: Theory and Practice, vol 82. European Proceedings of Social and Behavioural Sciences (pp. 367-377). European Publisher. https://doi.org/10.15405/epsbs.2020.04.47