Social and Symbolic Effects of Legislation Under the Rule of Law

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This book addresses a set of intriguing and complex questions in the study of law and society. How does legislation affect the behavior of citizens? What role do attitudes play in rule following and under what conditions can legislation influence these attitudes? The book juxtaposes two approaches to this set of questions. The social working approach is an exercise in empirical sociology of law, seeking a behavioral explanation of rule- following. The communicative approach to legislation investigates legislation as a communication process in both an empirical and a normative sense. The ensuing debate sheds light on the uses and dangers of legislation as an instrument of democratic governance under the rule of law.


“The opportunity to participate in the workshop on the Social and Symbolic Working of Legal Rules in Groningen in April 2003 afforded me the privilege of seeing a group of scholars engaged in focused interrogation of one of the fundamental themes in socio-legal studies, the effectiveness of law. The workshop had a bi-modal structure: the participants were drawn mainly from the Universities of Groningen and Tilburg and each of these 'teams' propounded a different approach. The Tilburg papers, summarized in the introductory paper of Prof. Willem Witteveen, emphasized the association of effectiveness with communication and dialogue; the Groningen view, championed by Prof. John Griffiths, emphasized a 'social' approach. From very different angles, each team rejected the instrumental- ist command model of legal effectiveness: for Groningers, it was insufficiently realistic; to Tilburgers, it was insufficiently inclusive of the ideal, aspirational aspects of law. In part the collaborative feel of the meeting was due to the fact that these theories are not true contraries, but represent a division of scholarly labor. Com- pared with the normative and policy orientation of Tilburg, the Groningen theory was more behavioral/empirical. The workshop was conducted in a friendly, genuinely constructive spirit, with the participants striving to appreciate other perspectives and acknowledge the limitations of their own … If effectiveness is in the eye of the beholder, as the cloverleaf example suggests, the chapters in this remarkable collection will educate our eyes to the perplexities of legal effectiveness and the problems of measuring it.” – (from the Preface) Professor Marc Galanter, John and Rylla Bosshard Professor of Law and South Asian Studies University of Wisconsin and Centennial Professor Department of Law, London School of Economics and Political Science

“This book is a must for practitioners of legal theory and sociology of law. It deals with one of the fundamental questions of the interdisciplinary study of law: How do legal rules influence the behaviour of citizens? Two theories are central to the contributions: the social working approach and the communicative approach. The possibilities and limitations of the legislature's influence on citizens' behaviour in various fields (the environment, domestic violence, health care) are explored. The authors have succeeded in deepening insights into the similarities and differences between these approaches to law.” – Philip Eijlander, Professor of Legislative Studies and Director of the Schoordijk Institute at the Faculty of Law, Tilburg University

“To be able to evaluate the effects of legislation successfully, the research should start from a set of competing hypotheses. The policy theory of the legislator offers a too narrow, often instrumentalist perspectrve. Evaluation reports offer more insight when leading hypotheses are derived from general social theory. In this work, two sociological approaches to the effects of legislation are compared. The social working approach stresses the influence of the social structure in which rules are applied. The symbolic working approach stresses the influence of interpreting communities in the reception of rules. I suppose that we need social structure, social culture and policy intentions to fully explain the workings of law. This book thus is a very welcome addition to the literature on policy evaluation.” – Michiel Herweijer, Professor of Public Administration, Faculty of Law, University of Groningen.

Table of Contents

Preface: The perplexities of legal effectiveness – Marc Galanter (University of Wisconsin, London School of Economics)
Introduction: The social and symbolic working of legal rules – Nicolle Zeegers (University of Groningen), Willem Witteveen and Bart van Klink (Tilburg University)
1. An introduction in eight propositions to the social working approach to legislation – John Griffiths (University of Groningen)
2. Turning to communication in the study of legislation – Willem J. Witteveen (Tilburg University)
3. Rules against domestic violence in the light of the social working and communicative approaches to legal rules – Nicolle Zeegers (University of Groningen) and Katinka Lunnemann (Verwey-Jonker Instituut, Utrecht)
4. Classifying physician-negotiated death: A matter of perspective – Donald van Tal (University of Groningen)
5. Symbols work – Rob Schwitters (University of Groningen)
6. An effective-historical view on the symbolic working of law – Bart van Klink (Tilburg University)
7. Do laws have symbolic effects? – John Griffiths (University of Groningen)
8. The social making and social working of legislation – Marc Hertogh (Tilburg University)
9. Communicative legislation: Can we trust certified management systems as tools for the interpretation and enforcement of environmental laws? – Rob van Gestel and Guido Evers (Tilburg University)
10. Do legal rules based on self-regulation affect the behaviour of doctors? The case of the Dutch legislation on medical treatment contracts – Barbel Dorbeck-Jung and Mirjan van Heffen-Oude Vrielink (University of Twente)
11. The mass media and the working of legislation – Petra Jonkers (Tilburg University)
12. The irony of a symbolic crusade: The debate on opening up civil marriage to same-sex couples – Wibren van der Burg (Tilburg University)
13. Communicative law: A quest for consensus – Jellienke Stamhuis (University of Groningen)
14. Some objections to an aspirational system of law – Pauline Westerman (University of Groningen and Vrije Universiteit Amsterdam)
15. Interpretive communities and symbolic effects – Willem Witteveen (Tilburg University)
16. Legal effects and moral meanings: A comment on recent debates on approaches to legislation – Roger Cotterrell (Queen Mary and Westfield College, University of London)
*Bibliographies after each article

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