Normative Institutional Order
The normative order in society has been described as “institutional” in character. Neil MacCormick argues that in order for a normative order to exist in society, an element of judgement must be involved. Judgements enforce actions that are widely accepted in society to be morally correct, whilst it prohibits actions that are deemed to be morally wrong. This judgement plays a significant role in the maintenance of the normative order. This is as behaviour that opposes the norms in society ultimately leads to a sanction as a direct consequence. As a result, this acts as a deterrent for other individuals in society and therefore allows the normative order to be maintained. MacCormick argues that there is a two-tier
…show more content…
MacCormick’s institutional theory advances from Kelsen’s pure theory of law which considers politics and morality to be impurities. Whilst politics involves the process of law-making, MacCormick dismisses it from the institutional theory as it concerns the exercise of power to act in a certain way rather than according to the normative order. It is argued that the law is not coercive but normative in power as legislation has the power to alter practice without the need to provide direct orders to agencies. Nevertheless, this argument has limitations as the law can also be deemed as coercive due to the sanctions that the judiciary can impose on individuals. Furthermore, legal positivists argue that moral norms are distinct from legal norms and therefore prefer to exclude it from the institutional law theory. MacCormick argues that not all legal rules contain a moral element. This is a limitation of the theory as the law can only maintain the normative order in the “legal sense.” Different people have different views on what is morally correct and if this is not embodied in the law then it is difficult for the normative order to be upheld as there would be a conflict in the decision of what ought to be done in the circumstances. Moreover, this theory is based on democratic law which is not universal and therefore rejects the
...is issue. As discussed earlier, his command theory of law mainly claims that the normativity of law is entirely a matter of law’s coerciveness. His theory has been superseded views such as those of Hart. Hart took pains to distinguish, as well as relate, law’s coercive- ness and its normativity. “Both the distinction and the relationship are expressed in the locution “norms backed by sanctions”: law’s normativity in this view must be understood independently of and in contrast to its coerciveness. Normativity is a matter of voluntary obedience; it invokes and relies on people’s disposition, whose nature and sources may vary, to follow legal rules. Coercion and normativity are portrayed as two separate but complementary strategies that the law employs to secure the individual conduct that it desires. The idea of a norm backed by a sanction is not unique to law”.
In legal theory, there is a great debate over whether or not law should be used to enforce morality. The sides of the debate can be presented as a continuum. At one end, there is the libertarian view, which holds that morality is an individual belief and that the state should not interfere in the affairs of the individual. According to this view, a democracy cannot limit or enforce morality. At the other end, there is the communitarian position, which justifies the community as a whole deciding what moral values are, and hence justifies using the law to enforce community values. For libertarians, judges should play a prominent role in limiting the state, while for communitarians, judges should have as small a role as possible. In between these two extremes sit the liberal egalitarians, who attempt to reconcile democratic decision-making about moral values with liberalism. The problem is made more complex when one considers that both law and morality are contested concepts. Two recent cases where this continuum can be illustrated are Canada [Attorney-General] vs. Mossap, and Egan vs. Canada. In this essay, I will attempt to explore some of the issues produced in these two cases. I will begin with a summary each case, followed by an analysis of the major themes involved. I will then place the issues in a larger, democratic framework, and explore the role of law in enforcing morality in a democracy. I will then prove how the communitarian position - as articulated by Patrick Devlin - supports the decisions given in Mossap and Egan, and how even the great proponents of libertarianism - Mill and von Hayek - would agree that the decisions were just. A conclusion will then follow.
Social order is made and remade through people’s behaviours, interactions and choices and is neither static nor fixed. This essay will provide examples of the ways in which social order is made and remade and how this happens on both a formal and informal level, although when disorder occurs, it is clear to see the level of work that goes into the making and remaking of social order (Blakeley, 2014, p85).
There are many things that influence our behavior from internal influences to social norms. Social norms are implicit or explicit rules that govern how we behave in society (Maluso, class notes). Social norms influence our behavior more than any of us realize but we all notice when a norm has been broken. Breaking a social norm is not an easy task and often leads us feeling uncomfortable whether we broke the norm ourselves or witnessed someone else breaking it. Sometimes however, you just have to break a norm to see what happens.
We as humans want to fit in with the people around us. It is hard for us to break norms, which is “the expectation of “right” behavior” (Henslin, 2011, p. 49). Violating a norm is going against then normal of the community we live in. The different violations that can be violated like for example folkways, “a norm that is not strictly enforced” (Henslin, 2011, p. 51). Where mores are, “norms that are strictly enforced because they are thought essential to core values or the wellbeing of the group” (Henslin, 2011, p. 51). It is because of our values, we determine the violation a positive or negative sanction. Values are “standards by which people define what is desirable or undesirable, good or bad, beautiful or ugly” (Henslin, 2011, p. 49). “Sanctions refer to the reactions people receive for following or breaking norms” (Henslin, 2011, p. 49).
In Huemer’s The Problem Of Political Authority an argument is made against the idea of political authority. Political authority is defined as the feature that the government has that makes it morally permissible for them to do things that ordinary citizens cannot. The idea in this argument is that the government should not have rights that citizens do not have. The purpose of this paper is to show that Huemer’s argument fails by arguing a consent-based response to Huemer’s criticisms, which shows that the government has politically authority because we have consented to it. The idea behind this is that we have actually consented to the government’s authority in several ways without being explicit, therefore showing that there is a difference between a government’s actions and a citizen’s actions even when they are identical.
I understand a theory of political legitimacy to give an account of the justice of political arrangements. (3) I understand a theory of political obligation to give an account of why and under what conditions, citizens are morally required to obey the rules constituting those arrangements. The social contract tradition offers us hypothetical consent theories of both political obligation and political legitimacy, frequently neglecting to distinguish the two ideas. Likewise, the common objection to hypothetical consent theories — that hypothetical contracts do not bind — ...
Society needs norms. Norms are unwritten rules that make life predictable. We have been trained to know these rules and what society recognizes as acceptable and unacceptable behaviors (Remle, Functionalism, 2016). When we act in an unexpected way, one of these norms is violated, society reacts, and sanctions are imposed. These sanctions can be positive or negative, formal or informal (Remle, Labeling Deviance, 2016).
There are many ways in which society can influence our behavior. In many cases, expectations seem to dictate how we react to a given situation. Social norms have dictated our lives for thousands and thousands of years now. A social norm is an expected form of behavior in a given situation. It can also be described as the “proper” way to behave in the given circumstances. The textbook discusses norms as “a fundamental element of social structure: the cement of society” (P. 167). An example of a social norm is that students are expected to arrive to class and complete their assigned work on time. These social norms provide order in society but is arguable also harmful to society.
Willer, R., Kuwabara, K., & Macy, M. W. (2009). The false enforcement of unpopular norms. American Journal of Sociology, 115(2), 451-490. doi: http://www.press.uchicago.edu/ucp/journals/journal/ajs.html
breaking the precedents that the norms had set(from: Sociology An Introduction) . There are two forms of sanctions, for...
All modern societies in some way accept the distinction between legal and ethical obligation. The former constitutes an exterior sphere of norms and rules, including duties which citizens can be compelled to perform by the threat of punishment or other legal consequences, the latter concerns the interior sphere of a person's conscience and private intentions. Making this distinction can be seen as the explicit acknowledgement of what Agnes Heller has called 'the first structural change in morals': the evolution of a separate subjective sphere of morality within the public ethical life. (1) ...
The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that
Durkheim sees the role of law and punishment to be important for the solidarity of society as a whole. (Ibid., p81) Here, society has a...
Both law and morality serve to regulate behaviour in society. Morality is defined as a set of key values, attitudes and beliefs giving a standard in which we ‘should’ behave. Law, however, is defined as regulating behaviour which is enforced among society for everyone to abide by. It is said that both, however, are normative which means they both indicate how we should behave and therefore can both be classed as a guideline in which society acts, meaning neither is more effective or important than the other. Law and morals have clear differences in how and why they are made. Law, for example, comes from Parliament and Judges and will be made in a formal, legal institution which result in formal consequences when broken. Whereas morals are formed under the influence of family, friends, media or religion and they become personal matters of individual consciences. They result in no formal consequence but may result in a social disapproval which is shown also to occur when breaking the law.