Norm science

In sociology of law the concept of ‘the norm’ can be used as an analytical tool. “The norm” is in this context something controlling or steering action or behaviour. “A norm is a directive for action that under similar circumstances gives rise to consistent actions” as Hydén puts it (Hydén 2004b, p 6). “The norm” is in this case not understood as synonymous to a legal norm, nor a fixed standard of the natural sciences. The norm in the norm scientific sense is recognized by the spontaneous action following from the norm (Hydén 2002, p 36ff.). The norm is in this context understood as something governing or assigning action, the inherent entity that is expressed through the action. Some norms do equal the legal norm, many do not, and most behavioural norms are simply not the object of legislation (Hydén 2001, 2002).

There are several examples of study of norms in this specific approach in an individual, institutional or structural sense, for instance about the construction of a tunnel through the ridge of Halland (Baier 2003), or the environmental awareness reaching the compulsory school (Wickenberg 1999). The concept of norms can be used to explain actions and patterns of action among individuals, groups or on a more structural level. The concept of norms as a directive for human action indicate that human actions are not random or can be completely explained for instance out of a rational choice perspective.

Methodologically the search goes backwards compared to the legal dogmatic method, which starts with the specific regulation and draws conclusions on what to be done from how this regulation is constructed. The sociology of law analysis starts with the action, the behaviour, the empirical side, and asks what the normative premises are behind that action or behaviour.

This is what is suggested in the analysis of the two paradigms of land and water administration below. The sociologist of law reconstructs the normative content against the background of the actual behaviour and its motives (Hydén 2002b, p 35-36).

The “norm” or when something is “normative” is in this sense not understood strictly as the legal norm, meaning the “law” or the specific legal regulation. The legal norm, the law, is in this perspective simply one of many values or reasons for action. It is also important to divide the “norm” in the norm science from the technical norms that emanate from natural scientific non negotiable laws of nature. Also, it is not to be mistaken for the specific environmental quality standard of the Environmental Code.

The legal system has as its purpose to control action. The legal system aims however only to control certain types of actions, which generally means that the legal system is not

“activated“, other than in exceptional cases. The legal system can be divided into different segments, sometimes with different leading fundamental principles. These different types of legal sections may have differently close ties to the social norms. With a norm concept, developed as above, the legal system can be viewed as in the picture.

"The first arrow indicate what is mentioned above, that there are a lot of norms that are not legally defined at all, and has its background in one way or another in society.

Norms grow so to speak from below. They are not formally

“fixed” as the legal norms, the law, although they can be taken for granted.⁷⁰

#The second arrow indicates that the spread conceptions of what is right or wrong can work controlling for human

behaviour. Conceptions that, once again, do not have to exist in a legal form, for instance the norm of that it is good behaviour to hold the door for the next one etc.

$These norms can often be the support or the forerunner for a legal rule, which the third arrow indicates. “Nulla crimen sine lege” - no crime without law - the legal scholars say.

“Nulla lege sine norma” the sociologist of law could say.

%The fourth arrow indicates that a lot of norms that also have their equivalence in legal rules control or affect our behaviour without us being aware of the legal rule which may never be referred to in any way. Most behaviour that is corresponding with legal regulations is withheld because of the norm and not the legal rule itself. The law is in this case a framework that comes into force whenever someone tries to differ too much from the norm that is in control. “The norm” is in this sense “the normal” from which you can not diverge too much, risking the divergence to be “illegal” above being just “illegitimate”.

&There are politically initiated rules that aim to let the political/administrative system on itself fulfil a duty. This is when the political system itself takes initiative to introduce the norms, which need an administration or supervising agency to control the observance of the law. This type can be described as frame law. The factual outcome of the law is dependant on other

70 See for instance the opening definition on the legal rule in Hydén (2001) Rättsregler, p 9.

The legal system in relation to norms

Figure: See Hydén 2002a p 271f, or 2004b, p 10.

factors than traditional legal principle indicates, such as the professions in contact with the legal regulation, the economy of the municipalities performing the legal provisions etc. Such external, from a legal order point of view, factors will be addressed further below. Note that this is a perspective from outside the legal order, a socio-legal take on what factors that may affect certain types of decision making under the scope of law. The legal dogmatic perspective generally does not present legally controlled decision making in this sense. This is further addressed below.

'The sixth arrow indicates that there are a set of rules that are the legal system’s own, which do not have their equivalence in their design on a norm level. This type of legal regulation can be described as intervening law, se below, and has as purpose to influence action in the society in one way or another. The background is here that there are colliding norms regarding a topic which is why a superior organ, the state, has to go in and establish what should be valid in the normative collision (Hydén 2002a, p 10 – 14).

This is a way to view the legal system as a societal institution in relation to the rest of society containing actions to a great extent controlled by norms. In a law and behaviour perspective the norm concept is of particular interest when there is an obvious clash between the legal norms and the societal. Historically this is perhaps even more pedagogic when it comes to displaying examples. Anna Christensen describes in the article Law in a transitional society (Christensen 1997) how the legal system in Sweden was affected by the transition of Swedish society from an agricultural society to a modern industrialized market economy and welfare state, and in what way the law in itself participated in this development. She mentions amongst other matrimonial law, labour law and property law. Christensen concludes that it took until decades of the 20th century had passed before the aging matrimonial regulations where replaced with a new:

“The most important task of law is to discern the new normative practices and the new normative conceptions that are being developed in society and to give these a legal body in the shape of new regulations. Law can have more or less readiness for discovering and accepting these normative changes in society.” (Christensen 1997 s 110)

The norm concept is a good descriptor of these changes, and perhaps a key between law and social change. A parallel of late 19^th century industrialization, and the dawn of the network society in the beginning of the new millennium can be drawn in the copyright issues of file sharing. Copyright is affected by the introduction and distribution of information technology in society. Behaviour and societal norms change in accordance to how the conditions for the same change, not always in a well functioning communication with law. The norm is in this case something apart from law, they are in fact in a conflict that can be tied to a new technology, which can be described in a bigger picture as a societal change (Larsson 2005a, 2005b, Castells 1996, 1997, 1998).

The norm perspective gives a methodological context for studying the driving forces as well as other relevant factors for the actions around sustainability issues related to the infrastructure construction such as cognitive aspects and systemic disposition. All of which relevant for the outcome of the actions taken, and therefore for the issues of sustainable development. The norm model has a character of a classifying tool for aspects that lies behind action, the analysis of a given action or process can have its origin in either one of the three components and show the interplay between them.

Land use and environmental management is regulated by a complex set of rules mainly consisting of the two most important legal corpuses, the Environmental Code and the Planning and Building Act. On an implementation level these two legal corpuses may conflict each other. This is shown below in the 3G case.

The legal intertwining of the planning process and the environmental administration mean that when you want to assess or answer questions such as what sustainable development looks like in practice you have to on one side be able to outline existing law, with what would be described as a legal dogmatic method, and on the other side use social scientific methods to question the empirical side of law, the practice of it.

The practical side of the sustainability dimensions is handled at the lowest levels by local authorities. Implementation of the 3G infrastructure construction decision demand that some kind of consensus is created between the acting participants, for instance due to the cooperation between the operators to lower the cost of the infrastructure, the municipal permit process setting the framework for the construction, and the public response towards the antenna construction. This opens for factors as organisational culture, competence, the ability to cooperate, attitude towards the project etc. As also implementation oriented planning theorists has claimed: it requires that micro-organisational behaviour is taken into account (Khakee 2000, Lipsky 1979).

The study of norms, both within the organisation of a participant and between participants within the project, as well as the suggested paradigms of planning above, may partially explain the outcome and the nature of the progress of the construction. Some of the aspects that are relevant to whether a project will be successful or not, where the ‘action’ will take place in a way the planning intended is here described as depending on norm structures. The actions of an agency such as the PTA are controlled by legal framework. Yet, a legal dogmatic perspective may not be able to explain the actions taken within this framework, blind to the external causes that may have affected the decisions taken.