Abstract
The ‘problem of normativity’ concerns the role that society’s value system, norms and conventions play in legislative regulation. Rapid social change was always problematic, for example the swift displacement of French Revolutionary law by the Napoleonic Code. What validated one or the other, since both broke with previous social norms? Traditionally, both legal and social theories had appealed to shared normativity to account for the ‘bindingness’, the sense of obligation held to inhere in the law. However, the intensification of morphogenesis had growing negative repercussions on all the normative components of the legal order: law itself, norms and rules, conventions, custom and etiquette. It is argued that as these elements weaken, ‘Anormative Regulation’ (or ‘Bureaucratic Regulation’) takes over in contemporary society, entailing no ‘ought’, exerting a causal force not a moral one, and operating through penalizations and prohibitions, which are punitive without entailing either a criminal record or invoking social sanction.
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Notes
- 1.
Since Pufendorf (1964 [1688]), the obligation attaching to or the binding character of the law was the key element to be understood.
- 2.
Durkheim’s position was nuanced by his concern that the Third Republic in France required substantial increases in civic morals and moral education as essential normative reinforcements in order to produce a stable and just society. See the last chapter of The Division of Labour dealing with remedies for its pathologies.
- 3.
- 4.
For the distinction between the C.S. (which concerns the type of logical relations between the corpus of ideas available) and the S-C (which concerns the relations of power and influence between protagonists of each set of ideas upon others) see Archer (1988) and the Introduction to this Volume.
- 5.
Douglas V. Porpora coined this term in Porpora et al. (2013) and he uses it in this Volume.
- 6.
The terms ‘bureaucratic’ and ‘administrative’ regulation are used interchangeably in this chapter and ‘bureaucratic’ does not refer to Public Bureaucracies alone.
- 7.
- 8.
Such as the British hotel that unilaterally imposed fines on clients who posted negative reviews of it by deducting £100 from their credit cards (BBC Radio 4, 19.11.2014).
- 9.
For example, Woodrow Wilson’s famous essay (1887) ‘The Study of Administration’, emphasized ‘the separation of politics and administration’, but this dichotomy remains contentious and delineated differently from state to state.
- 10.
The same principle of independence obtains in the U.S., e.g. the Federal Trade Commission, defined as a body of experts working ‘independent of executive authority, except in its selection, and free to exercise its judgement without the leave or hindrance of any official or any department of government’ (Casini 2011: 20).
- 11.
Typical of this genre is Robert Baldwin (2005: 5) whose ‘Is better regulation smarter regulation’ dwells upon the Blairite move away from ‘deregulation’ (of business), and towards ‘Better Regulation’. Contextual references are confined to the statement that ‘UK governments have given high priority to reducing unnecessary legislative requirements ever since the modern movement to reform regulation commenced in 1985’.
- 12.
Those who advocate the advent of a tough new administrative law are falling into the same trap.
- 13.
Compare the following three definitions:
-
1.
To the OECD regulation is ‘the full range of legal instruments by which governing institutions, at all levels of government, impose obligations or constraints on private sector behaviour. Constitutions, parliamentary laws, subordinate legislation, decrees, orders, norms, licenses, plans, codes and even some forms of administrative guidance can all be considered as ‘regulation” (OECD 1995)
-
2.
To the UK government’s Better Regulation Taskforce, regulation is ‘any government measure or intervention that seeks to change the behaviour of individuals or groups, so including taxes, subsidies and other financial measures’. (BRT undated)
-
3.
Hall et al. (1999) provide the broadest and vaguest definition when they simply talk of people being regulated by culture.
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1.
- 14.
Now requiring a satisfactory home inspection in Britain.
- 15.
Donati also uses the term to refer more broadly to the lib-lab configuration of society, one that is a compromise between the liberal (lib) side of capitalist markets (free economy) and the socialist (lab) side of the welfare entitlements and ‘equal’ opportunities funded by the state (political system). See also Chap. 10 in this Volume.
- 16.
The headline of The Independent (09.02.2013) read ‘NHS’s darkest day: Five more hospitals under investigation for neglect as report blames ‘failings at every level’ for 1,200 deaths at Stafford hospital’.
- 17.
In Britain, the original (monopolistic) telephone company BT (now suffering from competition) lodges no complain against this use by commercial users; it profits from it and then capitalizes on the unwanted disturbance by selling its own brand phones with a so-called ‘Blocking feature’ that works (apart from blocking a single stalking caller) by such useful features as ‘Block all international calls’! Cold calling is also how the intrusive practice becomes globalized because it provides employment for those in developing countries who actually place the cold calls.
- 18.
- 19.
According to Ofcom, the independent Regulator for the UK communications industries, ‘the average number of hours of television watched by individuals in the UK has risen over the past eight years from 3.7 hours a day in 2004 to 4.0 hours a day in 2011.’ ‘The average American over the age of 2 spends more than 34 hours a week watching live television, says a new Nielson report – plus another three to six hours watching taped programs’, https://www.nydailynews.com/entertainment/tv-movies/americans-spend-34-hours-week-watching-tv-nielson-numbers-article-1.1162285\#ixzz2KgAqQ1QM
- 20.
This has been one of the main contributions of Emmanuel Lazega to our collective enterprise, namely his quiet insistence that networks require inter-level investigation if we are to grasp their dynamics and outcomes. In a sense, this renders ‘intersectionality’ not unimportant but allied to the familiar preoccupation with the formation of meso-level social movements alone.
- 21.
British Prime Minister David Cameron denigrates the normativity of food donors and volunteers by stating that they are simply enlarging the ranks of ‘benefit scroungers’.
- 22.
La loi d’orientation de l’enseignement supérieur; for its promises and how these were clawed back see Archer (1972:127–153).
- 23.
Food rationing in Britain ended as late as 1954.
- 24.
‘Primary Agents’ are collectivities of people who share the same life-chances. They are aggregates, but these can have important social consequences. However, they are different from ‘Corporate Agents’ who are never aggregates because they have organized themselves in pursuit of certain goals and have articulated the changes they seek.
- 25.
This was not unknown in old-style social movements such as CND, where the Quakers, as pacifists, who had been Conscientious Objectors, during war time, played a significant role.
- 26.
This ‘focusing effect’ is quite well illustrated by the fact that the issue of Charlie Hebdo after the assassinations had a print run of five million compared with previous sales of 30,000.
- 27.
This proposition could be checked empirically.
- 28.
- 29.
This (early 2015) was a good time to observe the phenomenon as the list of SDG’s for 2030 was the subject of heavy negotiation. On August 31st 2015, the abolition of Human Trafficking and Forced Labour were incorporated in Clause 8.7 of the final list of SDGs.
- 30.
The International Labour Organization’s (ILO) ‘Forced Labour Convention’ (1930, no. 29) had defined ‘forced labour’ as covering ‘all work or service that is exacted from any person under the menace of any penalty for which the said person has not offered himself voluntarily’. This definition has its defects because ‘forced labour’ subsumes ‘trafficking’ and also illegal migration, if and when ‘fraud and deception’ effectively defy voluntary action.
- 31.
See www.endslavery.va for the text of the 2014 ecumenical ‘Joint Declaration Against Modern Slavery’
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Archer, M.S. (2016). Anormative Social Regulation: The Attempt to Cope with Social Morphogenesis. In: Archer, M. (eds) Morphogenesis and the Crisis of Normativity . Social Morphogenesis. Springer, Cham. https://doi.org/10.1007/978-3-319-28439-2_7
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