The big transition: custom-to-convention-to-law
Metamorphosis II excerpt 5, by M.C. Escher (Date: 1939)
Social rules
The sociologist Max Weber asked ‘how anything new can ever arise in this world’. He struggled to answer a complex question—how do informal rules emerge and then evolve into enforceable formal law? A continuum of multiple determinations, a patterning of action, and the knock-on effect of one variable upon another begins slowly and picks up speed. What we call laws in a modern society are the rules that have acquired a formal guarantee of enforcement by the state. Even so, determination of action by law is not inevitable. Consensual action based on informal custom or convention can be ‘firmly embedded’, and ‘may continue to exist for centuries’. Legal obligations that are opposed to traditional custom often fail to determine conduct.
In conceptualising change from custom to law it is useful to adopt Weber’s preferred method of analysis – begin by discovering the function of an evolved custom, convention, or law, and then work backwards to gain an understanding of the process by which it was selected and converted to law.
“…we must know what kind of action is functionally necessary for ‘survival’ [and] the continuity of the corresponding modes of social action, before it is possible even to inquire how this action has come about and what motives determine it.”
The central Weberian argument that continues to shape my work is that modern impersonal rules, which are formally ‘institutionalised’ in legal, administrative, and political organizations of modern society, increase the calculability and fairness of economic and political life, and ensure the survivability of modern society. Following twenty years of research and contemplation on the implications of Weber’s statement and the analyses upon which it is based—and the shortcomings of his own syntheses, which he could not complete in his lifetime—and through my comparative studies of societies in the Americas, Asia, and Europe, I now believe in a ‘fundamental’ way that the impersonal regulation of political and economic life in the contemporary world is “the action” that became necessary for societies (therefore humans) to survive.
Pace Weber, the task must consist in identifying the continuities in corresponding modes of social action, which pertain essentially to governance, and then inquire how the actions have come about and what motives determined them in place and time.
In the whole of history there is probably no greater ‘transition’ than the one to law. However, the mere existence or functionality of a procedural custom or convention does not guarantee that its instrumentality will be recognised or accepted. Weber tried to resolve the puzzle of normative evolution by categorising a bewildering array of determinants of action. A legal order does not emerge just because it is logically and demonstrably correct or because it fits with what people believe ‘ought’ to occur. Many motivations and structural determinants put pressure on evolutionary process.
Weber conceptualised it as a ‘continuum with imperceptible transitions’ from custom (e.g. traditional norms, habits, and imitation), to convention (e.g. forms of consensus, fear of disapproval, and the boycotting of undesired behaviour), and finally to ‘formal law’ as rights which can be enforceable coercively by administrative means. Law will standardise understandings that were arrived at by informal agreements on rules.
Sometimes new rules are imposed from above. However, most of the early changes along the continuum are influenced by people’s subjective experiences of the world, their ‘conscious expectations’, and the ‘consensual understandings’ that have emerged within a group, association, community, or society about how individuals should act and react or in fact simply do naturally act and react in particular circumstances.
The processes of inventing, selecting, and injecting approvable social rules into economic conduct, and the transformation of conventions into enforceable legal obligations, most often occur when in the self-interest of individuals or groups, or if self-interest coincides with loyalties felt towards members of the group or society.
As Weber pointed out, however, sometimes the most significant changes in the rules and standards of behaviour come about through deliberate innovation. In response to a new situation, there may arise ‘a new line of conduct’ or a new collective-action rule produced by a rational consensus for such change among interested parties. Such innovation might be induced by changes in the external environment. Evolutionism is explicit in Weber’s exploration of the potential adaptive efficiency of rules when ‘the total structure of social action changes in response to external conditions’. Changes in conventions will only ‘survive’ if they ‘are adapted to the external environment’.
“Of several kinds of action, all may have been well suited to existing conditions; but, when the conditions change one may turn out to be better suited to serve the economic or social interests of the parties involved; in the process of selection it alone survives and ultimately becomes the one used by all so that one cannot well point out any single individual who would have ‘changed’ his conduct.”
In addition, Weber emphasised the individualistic sources of innovation that produce ‘collective action’ by ‘inspiration’ or by a ‘sudden awakening, through drastic means, of the awareness that a certain action ought to be done’.
Innovation in rules might also result from an ‘empathy’ that induces ‘consensus’ about the ‘oughtness’ of an innovation, which then generates formal law and the machinery for its enforcement.
Finally, and decisively, ‘constant recurrence of a certain pattern of conduct’ can create a perception that there now exists a ‘legal obligation requiring enforcement’.
“Eventually, the interests involved may engender a rationally considered desire to secure the convention . . . against subversion, and to place it explicitly under the guarantee of an enforcement machinery, i.e. to transform it into enacted law. Particularly in the field of the internal distribution of power among the organs of an institutional order experience reveals a continuous scale of transitions from norms of conduct guaranteed by mere convention to those which are regarded as binding and guaranteed by law.” [emphasis added]
The higher the level of rationalisation in society or economy, the more likely it is that these types of pressure will eventually produce the accepted procedural rules and binding laws characteristic of modern society. Weber adds more intentionality and discontinuity to his evolutionary schema by describing how invention and imitation of rules and their conversion to law can be a controlled process of enactment.
“More frequent ... is the injection of a new content into social actions and rational associations as a result of individual invention and its subsequent spread through imitation and selection. Not merely in modern times has this latter situation been of greatest significance as a source of economic reorientation, but in all systems in which the mode of life has reached at least a measure of rationalisation.”
Clearly the economic reorientation which gave rise to capitalism required prior property rights and procedural rules with solid foundations in formal law. So we should briefly examine the economic dimension of transition from rules to formal law.
Economic rules
The custom–convention–law continuum is how Weber explained the evolution from interpersonal (communitarian) market ethics to the formal enforcement of impersonal economic rights by the agencies of a state. There are obvious conceptual as well as terminological similarities between Weber’s writing on this subject and the much later analyses of the evolution of law in so-called ‘new institutional economics’.
Weber indicated that market participants do not necessarily recognize immediately the need for legal enforcement by the state. Nevertheless, it is clear that their informal agreements on the rights and wrongs of a mode of transaction make it highly likely that ‘the function later [will be] fulfilled by the legal guarantee [of a convention]”.
Where there is simple small-scale exchange among people who share common conventions there is little need for ‘third parties’ to enforce market rules. If transactions are local and directly between persons who know each other or who belong to the same group or network, the relative security provided by established custom and sanctioning may provide adequate normative regulation. Weber defines ‘custom’ as ‘typically uniform activity which is kept on the beaten track simply because men are accustomed to it and persist in it by unreflecting imitation’.
In Weber’s words, economic exchange in traditional society is governed by ‘custom’, i.e. ‘rules devoid of any external sanction’. Customary rules and practices produce ‘dependency relationships’ among unequal partners, mutual obligations of reciprocity, and clientelist transactions between economic units. Market regulation by custom can involve mutually ‘accepted limitations on exchange’. We should note Weber’s remark about the potential for communitarian economic custom to have functional effects for society that are equivalent in economic significance to the pursuit of self-interest.
“[the] effects of conformity with long-standing customary norms in the economy will be similar to those that result from motivations of self-interest when the parties to an exchange have identical expectations about each other’s behaviour.”
However, as the quantity, distance, and complexity of economic exchanges grow so also does the demand for guarantees that rules of exchange will be ‘binding and protected against violation by sanctions of disapproval’. Economic actors themselves devise many informal means for expressing disapproval and constraining undesirable behaviour without the need for external coercion by a third party. ‘Convention’, which is not based solely on self-interest or on contra-economic tradition, can operate as a non-coercive means of coordinating effectively efficient transactions.
Convention in economic life represents belief or interest in the legitimacy of the economic order governing the action. A market ethic can be supported by convention. Ethics and conventions are similar in that neither requires an external enforcement agency. In Weber’s words, a ‘system of ethics’ is ‘likely to be upheld to a large extent by the probability that disapproval will result from its violation, that is, by convention’.
Convention, in other words, functions as an order that is felt to be binding for social or economic relationships and is able on its own account to regulate the direction of economic action. On the other hand, as Weber is careful to emphasise, individuals in all societies are subjected to economically ‘contradictory systems of order’. For example, conventions are especially determinant in economic life when there exists
“… social disapproval of treating certain utilities as marketable or of subjecting certain objects of exchange to free competition and free price determination.”
Although it is impossible to pinpoint general transitions from custom to convention, or from convention to law, we are certainly able to detect important turning points. Weber suggests, for example, that coercive legal order first becomes apparent when a boycott or other punishment of transgressors is ‘formally threatened and organised’. Furthermore, as soon as there is a ‘coercive apparatus’ to enforce compliance with particular rules it must be assumed that the rules have become laws. Even given these conditions, however, there is likely to an ongoing interaction between law, custom, and convention over long periods of time in the lives of societies. Each may be thought of as the ‘source’ of the other, such that, in reverse determinations, law gives rise to new customs and conventions just as the latter are the source of the former.
The point for economic theory is that more or less identical objectives of market regulation can be achieved by means of formal or informal prohibitions. Yet law is different from custom and convention in one vital respect. Laws have an autonomy from the social environment that is not given to either custom or convention. Laws, as we saw, can be created for purely technical reasons as innovations unrelated to the preexisting customs or conventions, that is, without any normative precedent at all. Thus:
“Legal rules . . . may have been established entirely on grounds of expediency”.
Legal ‘order’ presupposes a coercive but legitimate state, the existence of a group of persons who specialise in legal design, and officials to enforce the laws. In modern society, says Weber, ‘the most common form of legitimacy is the belief in legality, the compliance with enactments which are formally correct’. Custom and convention never achieve that intensity of legitimacy or authority that is characteristic of laws.
How, then, is law selected, and when does law take precedence over custom or convention? In Weber’s view, ‘institutional order is a product of evolution’ in which law, political community, and market rationality are intertwined. Only the political community, the nation state, is uniquely able to legitimise the threat of physical violence in order to guarantee the legal order. The ‘motives’ for forming political communities can be economic, territorial, social, and even ethical. Political ‘state’ communities can be economic entities defined by territorial borders. Internally, they regulate the interrelationships of their members. The reasons for establishing a legal order or a political community are almost identical. In each case, interest groups have worked together to seek the protection of ‘those rationally regulated guaranties which none but the political community was able to create’ . Weber described this process as the ‘nationalization of all legal norms’, which produces the ‘rational consociation’ that is characteristic of a ‘modern’ state. His depiction of the transition towards nationalised legal rules emphasises a process of selection by which ‘expansion of the market’ and ‘public peace’ become symbiotic objects for individual invention and collective action.
Weber viewed peace and prosperity as interwoven ends in the transition to capitalism. Territorially dispersed market exchanges create the social and the economic pressures for establishing legal guarantees of public peace by means of institutions that are designed functionally to reconcile disparate interests impersonally.
In Weber’s words, the market ‘transcends the boundaries of neighbourhood’ and was the first ‘peaceful relationship’ that communities ever experienced with the ‘world outside’. Among people who regularly engage in market exchange, the continuity of relationships and assurances of future contracts elicit attitudinal dispositions towards good faith anchored in law. In an important passage Weber describes how interests in public peace and property rights patterned the evolution of the modern state.
“If the coercive apparatus is strong enough, it will suppress private violence in any form. The effectiveness of this suppression rises with the development of the coercive apparatus into a permanent structure … Subsequently, it engenders, more generally, a form of permanent public peace, with the compulsory submission of all disputes to the arbitration of the judge, who transforms blood vengeance into rationally ordered punishment, and feuds … [into] rationally ordered legal procedures. Thus the political community ... [is] transformed into an institution for the protection of rights. In so doing it obtains ... decisive support from all those groups which have a direct or indirect economic interest in the expansion of the market community . . . [The] groups most interested in pacification are those guided by market interests … And as the expansion of the market disrupted the monopolistic organizations and led their members to the awareness of their interests in the market, it cut out from under them the basis of that community of interests on which the legitimacy of their violence had developed. The spread of pacification and the expansion of the market thus constitute a development which ... finds its culmination in the modern concept of the state as the ultimate source of every kind of legitimacy of the use of physical force; and that rationalization of the rules of its application which has come to culminate in the concept of the legitimate legal order.”
For reasons of inconvenience or neglect, Weber’s argument about the interlinked development of markets, law, and nation states is often lost in the secondary literature. The legitimacy of the modern state grew first from efforts at pacification that were a direct consequence of the expansion of markets, and then only subsequently from procedures for legal adjudication. This was, in effect, the sequence of transition.
“The ever-increasing integration of all individuals and all fact-situations into one compulsory institution [of the state] which today, at least, rests in principle on formal ‘legal equality’ has been achieved by two great rationalising forces, i.e. first, by the extension of the market economy and, second, by the bureaucratisation of the activities of the organs of the consensual groups. They replaced that particularistic mode of creating law which was based upon the private power or the granted privileges of monopolistically closed organizations.”
My short introduction to Weber’s thinking on the relationship between economic and legal development shows in general terms why institutional sequences of transitions to modernity in ‘developing’ societies should be market-led and law-led if they are to reveal to these societies the indispensability of conducting political life according to impersonal rules for calculability and fairness. Market interests can create a demand for the legal-administrative mechanisms that modern economies require. However, it would be a mistake to idealise the role of law in development. Weber emphasised that the process by which law protects economic interests is not without many dangers. That is a topic to be left until later stages in this history of society. Here I wanted only to underline progressions from informal rules to formal law, which Weber should be credited with having explained more clearly than any scholar before or since.
All quotations in this post are referenced to Max Weber Economy and Society, Volumes 1 and 2, University of California Press 1978
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