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Political Societies

Margaret Gilbert

in A Theory of Political Obligation: Membership, Commitment, and the Bonds of Society

A political society was defined in Chapter 1 as a society with institutions of governance. These institutions are its institutions. Three kinds of institution of governance are discussed, all ... More

A political society was defined in Chapter 1 as a society with institutions of governance. These institutions are its institutions. Three kinds of institution of governance are discussed, all involving social rules of one kind or another: governing rules, personal rule, and rules of governance or constitutional rules. The nature of social rules is explored in counterpoint to the classical account of H.L.A. Hart, and an alternative joint commitment account is offered. Given this account, the members of a political society are jointly committed to uphold its institutions of governance. By the argument of the previous chapters, they will then be obligated to uphold the institutions in question. This is the gist of the plural subject theory of political obligation.Less

The Constitution of Social Groups

N. W. Barber

in The Constitutional State

This chapter develops an account of rules, an account which has been directed towards illuminating the part that rules play in the existence and operation of social groups. It brings forward some of ... More

This chapter develops an account of rules, an account which has been directed towards illuminating the part that rules play in the existence and operation of social groups. It brings forward some of the ambiguities of rule-governed behaviour: in particular, the difficulties of distinguishing between action guided by rules and action undertaken for other reasons, and the possibility of quite fundamental disagreements within a social group over the existence and content of rules.Less

The Function of Justice: Assessing Coercion

Laura Valentini

in Justice in a Globalized World: A Normative Framework

This chapter develops a new account of the types of social relations that principles of justice are meant to assess. It argues that the function of justice is to limit the ways in which we may ... More

This chapter develops a new account of the types of social relations that principles of justice are meant to assess. It argues that the function of justice is to limit the ways in which we may permissibly coerce one another and distinguishes between two types of coercion: interactional (directly perpetrated by agents) and systemic (occurring through systems of rules). Two key insights underpin this coercion-based normative framework. First, from a liberal perspective, certain restrictions of freedom – those defined here as coercive – need special justification. The principles articulating the required justification are those that should be called principles of justice. Second, the relevant restrictions of freedom need not be direct, that is, perpetrated by an agent – collective or individual – against other agents. They can also be indirect, resulting from formal and informal social rules, supported by a large enough number of agents. This conclusion has important implications for our thinking about justice in the global realm, where there clearly are pervasive systems of formal and informal social rules, but no overarching, state-like group agent.Less

 Taking Charge

Ken Binmore

in Playing for Real: Game Theory

This chapter introduces mechanism design, which is the subject wherein games are designed so that rational play results in socially desirable outcomes. The judgment of Solomon from the Bible is used ... More

This chapter introduces mechanism design, which is the subject wherein games are designed so that rational play results in socially desirable outcomes. The judgment of Solomon from the Bible is used as an introductory example. The principles of mechanism design are then described. The use of the revelation principle is illustrated with an extended analysis of the Street Lamp Problem. The Clarke-Groves mechanism is briefly described. Finally, a critical review of implementation theory is offered that emphasizes its differences from mechanism design and its shortcomings.Less

The Mentality of the State

N. W. Barber

in The Constitutional State

This chapter argues that when we talk of states possessing intentions and acting, we use these terms in an analogous sense to their primary use in the context of individuals. To talk of a state ... More

This chapter argues that when we talk of states possessing intentions and acting, we use these terms in an analogous sense to their primary use in the context of individuals. To talk of a state intending a thing amounts to a claim that it shares sufficient features in common with a person intending a thing to make the statement sensible; it does not amount to a claim that the state intends things in the same sense as a person intends things. The chapter begins by considering two collections of rival approaches to this issue: individualism and holism. Individualists contend that it is inappropriate to attribute mental states to groups: it confuses rather than assists our understanding of the world. Holists, in sharp contrast, contend that groups can possess some mental states in the same sense as individuals. It is argued that there is something to be learned from each of these traditions. An account of the intentions and actions of social groups based on the rules which constitute those groups is advanced; it is contended that it is plausible to talk of groups acting and intending, even if they do not exhibit these features in precisely the same sense as individuals. The chapter concludes by exploring the limits to which the attribution of mental qualities to social groups in general and states in particular can usefully be pushed.Less

Negative and positive positivism

Jules L. Coleman

in Markets, Morals, and the Law

This chapter presents and defends a version of legal positivism, relying on two distinctions: one between epistemic and ontological conceptions of the rule of recognition, and the other between ... More

This chapter presents and defends a version of legal positivism, relying on two distinctions: one between epistemic and ontological conceptions of the rule of recognition, and the other between negative and positive positivism. The chapter argues that positivism is committed to the rule of recognition as a semantic or ontological rule only, and that its essential positive claim is that the authority of law everywhere is a matter of social convention. These points, taken together, make legal positivism both interesting and defensible. Because negative positivism is essentially a negative thesis, it cannot be undermined by counter-examples, any one of which would show only that, in some community or other, morality is a condition of legality at least for some norms.Less

Endogenous Change: Time, Age, and the Self-Undermining of Institutions

Wolfgang Streeck

in Re-Forming Capitalism: Institutional Change in the German Political Economy

In the context of institutions, individual and collective action supposedly brought about intended or unintended change in institutions. Understanding such change then requires a thorough ... More

In the context of institutions, individual and collective action supposedly brought about intended or unintended change in institutions. Understanding such change then requires a thorough investigation of the relationship between social rules and social action, looking specifically into how human action becomes rule-making, rule-taking, and rule-breaking, or simply the implications of following a rule and how this affects the rule itself. However, the way that actors would respond to such social rules remain unpredictable, allowing for unanticipated consequences and other possible effects. This chapter attempts to explain the implications of social rules through the five sectors while showing how studying gradual change is essential in understanding the importance of time for social structures and how this may suggest a move from a system perspective to a process perspective.Less

Laws and Conventions

N. W. Barber

in The Constitutional State

The previous chapter introduced the idea of constitutional conventions, discussing their nature and place within the constitution. It left at least one important feature of conventions unexplored: ... More

The previous chapter introduced the idea of constitutional conventions, discussing their nature and place within the constitution. It left at least one important feature of conventions unexplored: their relationship with law. The task of identifying the differences between laws and constitutional conventions has caused British constitutional theorists a great deal of trouble. Two possible distinctions are frequently canvassed. First, that laws are enforced by courts, with legal sanctions following their breach, whilst conventions are enforced only by political pressure. Second, that laws are systematic, a set of rules bound together by other rules, whereas each constitutional convention stands alone. This chapter argues that neither distinction can be sustained. The difference between law and convention is one of degree: laws and conventions can be placed upon a spectrum of types of social rules, a spectrum gradated in terms of the formalization of rules. Laws lie at the most formalized end of this spectrum, but there is no single, definable, point at which rules shift from being conventions into being laws. Alongside this argument, it is contended that conventions can become laws through judicial intervention, and that conventions can ‘crystallize’ into laws over time by becoming increasingly formalized.Less

Social Rules at the Foundations of Law

Andrei Marmor

in Philosophy of Law

This chapter presents some of H. L. A. Hart's main contributions to legal philosophy. Hart's The Concept of Law is widely regarded as the single most important contribution to legal philosophy in the ... More

This chapter presents some of H. L. A. Hart's main contributions to legal philosophy. Hart's The Concept of Law is widely regarded as the single most important contribution to legal philosophy in the twentieth century. It shows that Hart's theory is the most consistent and sustained attempt to develop a detachment view of law and legal philosophy, and one that is thoroughly reductive. The chapter introduces another separation, or detachment, that Hart's theory attempted, and one that is less successful: the detachment of law from state sovereignty. The legal positivist tradition, from Hobbes to the main positivists of the nineteenth century, conceived of law as the instrument of political sovereignty, largely influenced by the emergence of the modern state. Hart tried to show that this identification of law with state sovereignty is profoundly misguided; law is independently grounded on social rules, not on political sovereignty. It is argued that Hart's attempt to separate our understanding of law from the concept of sovereignty is only partly successful.Less

Law as Social Rules

D. J. GALLIGAN

in Law in Modern Society

To be able to acquire an understanding of how social rules become standards of behavior, the social context in which these occur must first be analysed while considering the various possible ... More

To be able to acquire an understanding of how social rules become standards of behavior, the social context in which these occur must first be analysed while considering the various possible consequences attributed to these said rules. To Hart, assuming a theory of law that is both analytical and sociological meant that one should avoid a natural law approach that confuses the social reality of law with a reality which people would prefer, and it also means that the abstraction of involved theories should be made on a manageable social level. Hart identifies the constant and general features of working legal systems and analyses the internal aspects of social rules. This chapter and the succeeding chapters attempt to consider Hart's description of a municipal legal system as composed of social rules by examining this point of view of law in society.Less

Toward an Economic Sociology of Chronic Poverty: Enhancing the Rigour and Relevance of Social Theory

Michael Woolcock

in Poverty Dynamics: Interdisciplinary Perspectives

This chapter focuses on both expanding and refining the analytical scope of the ‘social’ (or non-economic) aspects of chronic poverty. The chapter is structured in six sections. Section 15.2 briefly ... More

This chapter focuses on both expanding and refining the analytical scope of the ‘social’ (or non-economic) aspects of chronic poverty. The chapter is structured in six sections. Section 15.2 briefly looks at how poverty generally, and chronic poverty in particular, is explained in the current policy literature, with a focus on ‘poverty traps’ and (more recently) ‘inequality traps’. It is argued that three strands of scholarship in the non-economic social sciences have exerted quite considerable influence at the level of contemporary policy discourse (and to a lesser extent, practice), and that critics, especially those within these disciplines, have been slow to recognize this fact. Section 15.3 argues that these successes cannot do the heavy intellectual lifting required for a more comprehensive social theory of chronic poverty, and that, as such, a new edifice must be constructed and negotiated for. Section 15.4 provides three brief case studies of selected aspects of chronic poverty to demonstrate both the influence and the limits of prevailing approaches. Section 15.5 provides a defence of three constituent realms of a broader social theory of chronic poverty, namely systems of social relations, rules, and meaning. Section 15.6 concludes.Less

Law as a System of Rules

D. J. GALLIGAN

in Law in Modern Society

The rule of recognition, as a social fact, aids in understanding how social rules make up a system of law in two ways. First, it serves as an ultimate rule that links rules to form a system as it ... More

The rule of recognition, as a social fact, aids in understanding how social rules make up a system of law in two ways. First, it serves as an ultimate rule that links rules to form a system as it identifies the conditions under which new rules are made and provides the basis for determining whether any social rule is a legal rule. Second, it bestows authority on specific rules as laws since any law made that complies with the rule of recognition obtains a binding quality that requires officials to act in accordance with the rule. Its two elements involve convergent behaviour on the officials's part and an internal attitude that considers the said convergent behavior as obligatory. Admiration and scepticism regarding the rule of recognition has raised issues and these are discussed in this chapter.Less

Rights, Citizenship, and Society: The Social Rechtsstaat

Peter C. Caldwell

in Democracy, Capitalism, and the Welfare State: Debating Social Order in Postwar West Germany, 1949-1989

The social rule of law, or social Rechtsstaat, was a second key term used in the first decade of the Federal Republic of Germany to justify extensive state interventions into society, so long as they ... More

The social rule of law, or social Rechtsstaat, was a second key term used in the first decade of the Federal Republic of Germany to justify extensive state interventions into society, so long as they preserved individual freedoms. Individual freedoms—such as the right to free speech, the right to enter and exit contracts, and the right to own property—required some kind of social supplement to ensure real freedom, or so the term suggested. By cementing this principle in the Basic Law, the founders opened up a debate about the justification, nature, and extent of the welfare state. Some, like Ernst Forsthoff, rejected the entire discussion as non-sensical; others, like Wolfgang Abendroth, viewed the constitutional concept as a spur to social reform. While this debate took place among lawyers, its real significance lay in the way it articulated the relationship between social policy and democracy.Less

Social Rules

in H.L.A. Hart, Second Edition

H. L. A. Hart's legal theory is a theory of legal order as an order of rules. These rules are a particular variety of social rules that derive from social sources and exist in virtue of social ... More

H. L. A. Hart's legal theory is a theory of legal order as an order of rules. These rules are a particular variety of social rules that derive from social sources and exist in virtue of social practices. For Hart, these social rules depend on, or express, the attitudes of human beings toward their own and other humans' conduct as well as their ways of acting and interacting with each other as conscious agents. As a jurist, Hart addressed the explanation of laws as social rules and the explanation of social rules and rejected the notion that rules are some kind of command or imperative. He highlighted an “internal aspect” of social rules as against mere habits and external regularities of behavior. Moreover, he proposed a new route to the explanation of social rules dependent on what may be called a “hermeneutic” approach. Hart's practice theory of social rules, and by implication, legal rules as a special type of social rules, makes a distinctive, original, and valuable contribution to jurisprudence.Less