Mechanisms of Legal Effect: Perspectives from the Law & Society Tradition

Abstract

“Law and Society” is the term for scholarship using a variety of social science methods to study law and legal institutions. The unique contribution of this approach is its focus on meaning-making as a mechanism of legal effect. A foundational assumption is the need to focus on law in action rather than solely on law on the books. The former refers to the institutionalized doctrine of legal codes and judicial opinions; the latter shows how law operates in practice. Key law and society concepts, including legal consciousness, law as legality, organizational legalization and organizational politics elaborate how law operates in action through meaning making. Meaning-making may involve an overt politics of contested meanings or the exercise of covert power, and is an avenue both for establishing power and for resisting authority. Meaning-making happens both within the formal legal system through, for example, administrative and court enforcement, and outside formal law through for example, construction of compliance by regulated organizations. Each of these meaning-making processes influences the other.

The concept of legal consciousness highlights how ordinary people construct legal meanings. The same individuals attribute multiple — and often contradictory — meanings to law in their everyday lives. The various meanings and their inter-relationships form a cultural repertoire available to be drawn on variably in different situations. To the extent that either formal law or broader concepts of legality transform social status or identity, or create new social categories or other types of cultural meanings, law and society scholars refer to law’s “constitutive” effects — that is, law’s power to make, and make sense of, the social world.

Law and society research on law and organizations also emphasizes meaning-making Organizations that are not part of the formal-legal system may enact and implement internally sets of law-like organizational rules, structures and procedures that define and effectuate the rights and responsibilities of actors within the organization. From the managerial perspective, a “legalized” workplace, emphasizing formalized rules and due process grievance procedures, assures smooth operation of the business.

To be of maximum utility for research linking law and public health, research on the legalization of organizational fields external to the formal-legal system must be brought together with understanding how internal organizational politics may affect meaning attribution within single organizations. Similarly, one must consider how variation between organizations in internal organizational politics and consequent meaning attribution may reverberate back to influence organizational structures, policies and practices across the broader organizational field.

Law and society research can further inquiry into how law operates as or upon social determinants of health. The “fundamental cause” framework of social epidemiology is consistent with the law and society tradition’s focus on meaning-making as a central mechanism by which law affects individual and aggregate health outcomes. And it is consistent with a law and society approach to the question of how law, inequality and public health inter-relate. Any law that affects economic or social inequality also is likely to affect mean aggregate public health as well as dispersion in health outcomes within the population.

Keywords: public health law research, empirical legal data, law and society