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Socio-Legal Research – Ray Kerkmez Research Paper

Socio-Legal Research

 

Methodology and Methods

JUDY BLACK’S NEW INSTITUTIONALISM AND NATURALISM IN SOCIO-LEGAL ANALYSIS: INSTITUTIONALIST APPROACHES TO REGULATORY DECISION MAKING REVIEW

by Ray Kerkmez  LLM, MDR

Abstract

This paper contains an analysis and evaluation of the socio-legal approach employed in the scholarly paper entitled, “New Institutionalism and Naturalism in Socio-Legal Analysis: Institutionalist Approaches to Regulatory Decision Making” by Julia Black [1]

New Institutionalism and Naturalism in Socio-Legal Analysis: Institutionalist Approaches to Regulatory Decision Making is an article authored by Julia Black in the Law and Policy Journal of 1997. The article focuses on the institutionalist’s approaches to regulatory decision making considering the role of sociological and organisational theorists’ socio-legal work towards comprehension and conceptualisation of law and discretion. The operation of the law is fundamental to the economic, political, and organisational spheres of any society. The paper, from a socio-legal perspective, critically analyses the role of the law in decision making where the law is not determinative. [2]The author relates this scenario to the role of organisational norms, [3] and political and economic pressures in shaping decision making in the wider society. Through an analysis of the existing models of decision making, the author seeks to establish the impact of the decision-making process in an environment of varied norms of the law. [4]

Naturalism being sociologically rooted and having varied influence on the decision-making process, it is firmly embedded in the principles of socio-legal approaches. In her paper, Julia Black puts naturalism in the spotlight for having the roles of mediating organisations and their social surrounds through values and the perception decision makers, and the interpretation of organisational constructs of social reality. [5] The paper recognises the role of naturalism in semantic labelling. Her approach to naturalism is borrowed from communicative theory that focuses on descriptions and categorisation in relation to impact. [6]

 

Research Questions

The paper poses two questions relating to the place of law in institutionalism in decision making. Black questions the role of the law against the background of a situation where the law is not determinative in decision-making. The paper considers a context where decisions are shaped by other bureaucratic or organisational norms, economic pressure and individuals’ views of the world and interests which suppress the role of the law in decision making. [7] The paper specifically seeks to assess the fate of the law in these situations. The paper further investigates whether the law plays different roles in the decision-making process: individualised or generated. The second research question focuses on the other side of the first question. The impact of the decision-making process on the law in the case where different norms or considerations bear. [8] The impact is analysed both at a system level and at the level of the specific legal regulations in application. [9] Concisely, the paper questions whether the law is altered or affected in pursuit of this process.

 

Significance of the Socio-legal Approach

The paper examines institutionalism arguing that institutionalism is often vague and ambiguous in spite of its structural composition of the social science disciplines of economics, political science, and sociology. [10]Institutionalism is significant for individual and social action and interaction occurrence. [11] This information guides the author’s assertion that institutions comprise cognitive and moral structures, rules that are regarded as binding either socially or legally but not self-enforcing. [12] New institutionalism is related to economics, political science, sociology and organisational analysis and decision-making in the discussions. The paper applies the March Olsen and Cohen “garbage can” process of decision making for the study. [13] The paper argues that decision-making is not a mechanised process for legal processes alone, but open to other forums. The study concludes that the law plays a small role in individualised decision-making but can be fundamental in guiding the process for decision-making. The answer to the second research question is obtained from Mayer and Rowan’s analysis of the role of myths and symbols in the decision-making process. [14]In the response, it is inferred that the influence of the law goes beyond the detailed aspects of legal doctrines but is included in structuring and shaping actions. [15] The law thus acts on the jurisdictional level of regulation and its effect on the legal relationship. [16]

 

Significance of New Institutionalism to the Author

The author’s choice of the area of socio-legal approach is informed by the role and position of new institutionalism and naturalism in socio-legal understanding. Macey [17] and Ostrom [18] argue that these two facets are central to the definition and relationship of the legal world and the social science principles. The paper focuses on the relationship between the law and other non-legal principles advising decision-making. The vagueness of new institutionalism and the dynamic nature of institutionalism requires research and critical study. Having this area as a field of choice for study is well advised and demands investigation of sociological theories and their interaction with the law. The area of study is appropriate since it touches on fundamental prerequisites for understanding socio-legal concepts. The study also relates theoretical concepts to the empirical world in a systematic and individualised dimension. The study’s methodology is research on literature from the fields of sociology and legal findings. The paper analyses decision-making processes in organisations relating it to the theoretical concepts. The author also compares dominant institutional approaches to empirical new institutional approaches in economics, political science, and sociology.

 

 

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[1] J Black, (Law Department, London School of Economics and Political Science): “New Institutionalism and Naturalism in Socio-Legal Analysis: Institutionalist Approaches to Regulatory Decision Making”. Law & Policy, Volume 19, Issue 1, pages 51-93 January 1997. Article first published online: 16 Dec 2002.

[2] R Baldwin, (1995) Rules, and Government. Oxford: Clarendon Press.

[3] Cambridge Journal of Economics (1997) Special Issue on Contracts and Competition, Cambridge Journal of Economics 21 :121-302

[4] R Baldwin, (1995) Rules, and Government. Oxford: Clarendon Press.

[5] R Cotterrell, (1995) Law’s Community: Legal Theory in Sociological Perspective. Oxford: Clarendon Press

[6] Ibid 42

[7] Cook, K Schweers, and M Levi, (1990) The Limits of Rationality. Chicago: Univ. of Chicago Press.

[8] R Cooter, (1995) ‘Law and Unified Social Theory,’ Journal of Law and Society 22: 50-67.

[9] Mercury Communications Ltd v Director General of Telecommunications [1996]1 WLR 48.

[10] R Baldwin, (1995) Rules, and Government. Oxford: Clarendon Press.

[11] Zucker and G Lynne, (1992) The Role of Institutionalisation in Cultural Persistence. In Powell & DiMaggio 1992.

[12] R Cotterrell, (1995) Law’s Community: Legal Theory in Sociological Perspective. Oxford: Clarendon Press

[13] J Black, (1996) ‘Constitutionalising Self-Regulation,’ Modern Law Review 59: 24-55.

[14] Chalmers, 1997, p.64

[15] For an comprehensive comparison of the dominant institutional approaches in economics, political science and sociology and the new institutional, Baldwin, R. (1995) and Chalmers, D. (1997)

[16] Cotterrell, 1995, p.24

[17] J R Macey, (1992) ‘Organizational Design and the Political Control of Administrative Agencies,’ Journal of Law, Economics, and Organization 8: 93-110.

[18] E Ostrom, (1991) ‘Rational Choice Theory and Institutional Analysis: Toward Complementarity,’ American Political Science Review 85: 37-43.


References

 Baldwin, R. (1995) Rules, and Government. Oxford: Clarendon Press.

Black, J. (1996) Constitutionalising Self-Regulation, Modern Law Review 59(1) p. 24-55.

Cambridge Journal of Economics (1997) Special Issue on Contracts and Competition, Cambridge Journal of Economics 21 (1) p.121-302

Chalmers, D. (1997) Judicial Preferences and the Community Legal Order, Modern Law Review 60: (1) p. 64-97.

Cook, Schweers, K., and Levi, M., (1990) The Limits of Rationality. Chicago: Univ. of Chicago Press.

Cooter, R. (1995) Law and Unified Social Theory, Journal of Law and Society 22 (1) p. 50-67.

Cotterrell, R. (1995) Law’s Community: Legal Theory in Sociological Perspective. Oxford: Clarendon Press.

Macey, J.R., (1992) Organisational Design and the Political Control of Administrative Agencies, Journal of Law, Economics, and Organisation 8 (1) p. 93-110.

Ostrom, E. (1991) Rational Choice Theory and Institutional Analysis: Toward Complementarity, American Political Science Review 85 (2) p. 37-43.

Zucker and Lynne G. (1992) The Role of Institutionalisation in Cultural Persistence. In Powell & DiMaggio 1992.

 

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