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New question: Law and Social Sciences
As next week we won't have classes, you are ALL invited to answer the following question:
"What is a social fact and what is a juridical form? Describe the difference by making reference to the concept of institution."
Your participation to this discussion will be taken into account in your final evaluation. If you don't have posted any comment until now, it is time to start!
25-26-27 October 2016: Paolo Napoli on "Law and Social Sciences"
Presentation of a New Book on "The Merchant of Venice" (Rome, 11 November 2016)
24 thoughts on "New question: Law and Social Sciences"
Eugenio Carucci says:
I think that the relationship between society and law can be seen trough two different conceptions. One based on the configuration of the law as the strength that has moved the world for ages in the history, able to impose herself in the social context, creating new habits and influencing it. And the second one is based on an asynchronous relation for which law needs to catch the society continuously changing. In this second configuration law is something that arrives as the owl of Athena when facts have already happened. So social facts induce law to give her abstract qualification to them. If this asynchrony persist too much society suffer the absence of a regulation. So law has to learn from the dynamical society and has to provide as soon as possible to give a juridical form to what happens in a community. This traditional conceptions has its root in the idea of the impossibility to rule everything and in the necessity of integration criteria for the legal system as the "analogia legis" and "analogia iuris". So law, guided by the fundamental principles, explain what happens in the social life giving a juridical form to it, or sometimes it creates something that still doesn't exist in the society. It's in fact at the same time a tool and a language to describe social fact and to develop society and economics (as the law and economics movement supports). In the complex structuring of law the concept of institution is the core of its language. As it has been said during the lessons this concept can be expressed in its two meanings, as the symbol of the power and of the State (e.g the president of the Senate), or as a central topic of a juridical subject (from his latin origin the verb "instituere" means at the same time to teach and to build), so we have basic institutions of private law, commercial law or criminal law. So law gives to something that exists or needs to come to existence an abstract qualification in her articles and rules. We have a language with its forms. I can make an example of this, moving by the private law concept of corporation. It's common to see that in a community frequently and spontaneously people need to stay together to better realize their aims or to share their interests, so associations of people have always existed in society as this necessity lays in the human beings' spirit. But law has described them in different ways giving them distinct forms. So reading the civil code we can distinguish enti di fatto from enti di diritto, or recognized association or non recognized association, committees, parties, onlus, societies (different kind of partnerships and corporations) ecc.ecc. So law can qualify a social bond in different ways depending on different requirements and aspects that law pretend.
Riccardo Ciarlone says:
If we talk about "institution" like any fundamental legal element of every branch of law (in fact, it's not a case, in university's law, students study "the institutions" of subjects, for example "institution roman private law", "institution commercial law", "institution of public law"), I believe that every institution is formally different from its actual and primordial substance for one simple reason: the Law has never placed "a priori" but "a posteriori", according to society's evolutions and needs. The starting point are always the habits, customs, traditions, the social phenomena because then, the legal institution will crystallize inside these phenomena, bureaucratizing them, and therefore that particular institution (created and derived according to customs and needs) will be a social's creative source.
In fact, the creation of each legal institution will always start from the "social" world, from what people want, from our needs, by what happens to us in everyday life; then the legislator will receive and incorporate all this, creating new institutions, giving "legal status" to social facts that are simply our daily needs (transformed into institutions).
Usually legislator's regulation will be in a manner so analytical and bureaucratic (and with intent to suit the most demanding needs) that every institution, in its "genus", will have several meanings(as "species").
If we think of "cohabitation of fact", we note that, over the years, this phenomenon has been transformed from a purely factual situation to a legal institution, regulated by law! The legislator wanted to give legal form to this "modus vivendi", because our society, in recent years, has been characterized by this social phenomenon. Infact couples of people decide not to get married but simply to live their relationship without any marriage bond and to have children without marriage union. Because this phenomenon of unmarried couples are always spread, the legislator decided to take action, lately, with the famous law n.76/2016.
This law has importance not only from a legal point of view but also from a social one because it introduces two new institutes: the institute "civil union" and the institute of "cohabitation of fact". So the legislator intended to incorporate something that comes directly from the "dynamism" of the society that doesn't consider only the traditional family but also a type of alternative relationship. Once the legislator acknowledged it, he analyzed and gave life to these two new institutions, according to needs of society.
But when the legislature gives legal form to what society demands, he uses not simple but complex methods and procedures.
We could think of adoption's institute: to adopt a child is not enough affection, the will, the charitable help for these children without a family originally, it's not sufficient! Instead you must start and follow a bureaucratic process very complex and above all, you must be suitable for certain prerequisites without whom you cannot adopt a child. In addition, we can divide the "genus" institution of adoption into two "species": national adoption and international adoption, according to the needs and the possibility to adopt a child in a national or international territory. In short, the legislator not only incorporates the needs but he institutionalizes and bureaucratizes, making them more complex than that they appear!
I think, on one hand, sometimes the bureaucracy complicates the events but on the other hand, I feel that it serves to protect the rights and duties of the subjects of each institution, always according to needs.
In fact, going back to discourse of the "cohabitation of fact", the legislator not only has institutionalized this "factual situation" but also he established, in a complementary way, "the cohabitation agreement" to program the patrimonial relationship between life partners, in short, a form of protection to protect, even more, needs of the partners.
Christian Gatto says:
Social fact is something that preexists to juridical form.
As we know, society isn't something static, but it changes and changes during its existence, forming social facts, that are behaviors, new ways of thinking, of seeing society that influence people who live in society.
Aristotle said in his work "Politics" that man is "social animal", it means that man can't live alone, but he has to aggregate with other individuals, forming society. So, men form society, and men constituted in society form their behaviors and their institutions.
In this context, law makes his appearance. Society is something that is formally separated from law, but society needs law, because without law society could become an anarchy. Without law, without something that has the right force to say to the men what is right and what is wrong, everyone could do whatever he wants, without taking into consideration a very famous definition of liberty that says: "My liberty is something that stops when starts liberty of someone else".
So, law has to "mettere i paletti", has to establish what a man in society can do and can't do, taking inspiration by social facts.
And how society evolves during the time, law evolves less fast then society. This is for two reasons: bureaucracy and process slow the evolution of law, and because in some cases a new way of thinking of seeing society isn't "right", so it hasn't to have a recognition by law.
We can do some examples of new institution created by social facts and changes in society that, at the moment, won't have a recognition by law.
As my colleague Riccardo said, cohabitation of fact and civil union is an example of social fact that had a recognition by law, but after a very very hard process and acceptance by political parties and some radical component of society.
Another example is "vehicular omicide", a juridical institution introduced by law n. 43 of 2016. This law makes a lot of changes in Penal Code, in the Code of Criminal Procedure and in the Traffic Code.
These are examples of juridical institution created by changes in society.
But we can do an example of a social fact, or more exactly a social demand, that at the moment law won't accept.
I talk about the case in which a thief introduce himself in a private residence and the owner discovers and murders the thief.
Today people feel a need of safety in every part of life: a safe work conditions (especially for some manual works), safe streets in every part of the day and sort like this.
So, people want to feel safe in every life condition, and the most important of this is the private residence.
People, at the moment, think that if you find a thief in your house, you are allowed to kill him in every case (thus without taking into consideration self-defense), because he violated your private property.
But law isn't disposed to accept this, because private property right can't prevail on fundamental human rights, in particular right to life.
edoardo briganti says:
According to di E. Durkheim, The Rules of Sociological Method, a social fact is any way of acting, whether ruled or not, capable of exerting over the individual an external constraint. The juridical form is the regolation that the law gives to a social fact. Is clear that in all community there are a lot of social facts that affect and influence the social life and the citizens can influence the social facts just indirectly and can't manage that independently. In an undeveloped society the social facts remain social facts but have a great value and regulate the citizen's life, in a developed society the social facts became laws thanks to the work of the parliament. Obviously can became laws only the social facts that the legislator evaluates worthy of protection and that are compatible with the Constitution. Social facts must be considered in themselves, they must be studied from the outside, as external things, and this is the sociologist's work. To give a juridical form to the social fact is the jurist's work. I think that a good example of the relation between the social facts and the laws is the "analogia", regulated by the art 12 of "disposizioni sulla legge in generale" of italian civil code: "Se una controversia non può essere decisa con una precisa disposizione, si ha riguardo alle disposizioni che regolano casi simili o materie analoghe; se il caso rimane ancora dubbio, si decide secondo i principi generali dell'ordinamento giuridico dello Stato." This is a way to resolve a "lacuna legis", in other words is a way to resolve the asynchronization between the social facts and the laws.
Gennaro Di Martino says:
In sociology, social facts are the values, cultural norms, and social structures which transcend the individual and are capable of exercising social control.
According to Durkheim definition (quoted by Professor Napoli last week): "a social fact is any way of acting, whether fixed or not, capable of exerting over the individual an external constraint. They consist of manners of acting, thinking and feeling external to the individual, which are invested with a coercive power by virtue of which they exercise control over him".
Then we can define the "juridical form" as the way the legislator satisfies a social necessity and fixes the rules for a social fact, through the identification of what is "secundum legem", "extra legem" and "contra legem". In that regard, "ex facto oritur ius" and "ubi societas, ibi ius" are very useful brocards.
In order to give a response to the question that we concern, I would like to focus on S. Romano's thought: according to the Historical School, he refuses to involve all the law in the written law. However, opposite to the Historical School's thought (who has a monistic point of view), he prefers to talk about "social structures" and "social conflicts".
According to Romano, the solution to the modern State's crisis was not the fight against the "social structures" through law, but the adjustment of the juridical system to those social structures (and their evolution).
One of the principal aspects of Romano's belief is the affirming that international and ecclestiastical law were juridical system outright, because both correspond to the definition of "institution", as many other "social structures" as well. He also admitted that even criminal organizations (as mafia) can be included into this definition.
Nowadays we can consider Romano's thought ('30s) still going as strong as ever. E.g. in many family law institutions is still very influent Catholic Church's thought: in fact we had lots of conflicts about divorce (who has also been the subject of a popular referendum), about abortion (considered a crime until 1978, and then became the subject of popular referendum in 1981) and about civil unions (ruled only in 2016). In criminal law, the fighting towards criminal organizations has led to aggravate criminal system against those who were sentenced for those crimes (e.g. art. 41 bis, reg. penit.; or Gava-Vassalli Act).
Finally, if the State is the one who can generate juridical rules, it must confront itself with many other social structures. If we pay specific attention to Italian condition, we can see that as much Church as Mafia could be considered parallel to the State; they often weigh so much on people habits that they create a non-juridical law system that is followed similarly (and sometimes in contrast) to juridical rules.
Martina Bernardini says:
According to E. Durkheim, as he wrote in "The Rule of Sociological Method", social facts should be considered «as things» that we may define "sui generis" because, as Durkheim said, they present «very special characteristics». In fact, the «consist of manners of acting, thinking and feeling external to individual, which are invested with a coercive power by virtue of which they exercise control over him». So we can say that in Durkheim's opinion social facts are things because they are outside us, they are given: as we said in our classes with professor Paolo Napoli, we can define these facts like empirical, not theoretical.
Durkheim said that the only way to consider social facts as things is to treat them as data, how every kind of science we know does: in fact, like professor Paolo Napoli explained, sociologists only observes, analyzes and tells us about their observation: they abandon every preconception and let reality get in their mind.
Social sciences, and in particular sociology, make us able to find out a new category or «new specie» of facts, that can't be confused with natural facts and that are «proper field of sociology». Durkheim said: «They cannot be confused with organic phenomena, nor with psychical phenomena, which have no existence save in and through the individual consciousness».
We can sort social facts in two groups: "massive" facts, like education or religion; "not massive" facts, like current of opinion.
On the other side, also Kelsen defined law like a science. In fact, Kelsen used a formalism method: as we said during our last class with professor Paolo Napoli, law can be described like a form applied to the content and so every content could be considered legal because it depends by a choice (of Legislator). In other words, in Kelsen's opinion, the law is a social facts: for this reason it lives in society and make us able to transform the other social facts in juridical act when these social fact are the content of Legislator's norms.
We can group Kelsen's analysis of law in two different fields: static and dynamic aspect of law. First of all, law is hierarchical and this theory starts from a basic norm ("Grundnorm") to whom all other norms are related. On the other side, dynamic vision of law make us able to relate the norms formed according to the static theory with institutions and so with society.
After all, we can say that law and society – and consequently law and social sciences – are really connected for many reasons: we can say that law and society can not live apart ant they condition each other. In a sense, law gives a form to the society and to the relationship between men who live in (for instance, the contract of private law); in other sense, society evolves day by day and so there are many social facts that are not yet regulated by law (for instance, before the law adopted in 2016, the life of homosexual couple and them child). In this second case, we can observe the high manifestation of qualifying function of law: if Legislator considers a social fact worthy of protection, he writes a law. However, as it's natural, Legislator can't regulate every single aspect of social life, because law encodes the id quod plerumque accidit, as we say in Italy. For this reason, is the same law to provide a way to regulate cases not encoded (for instance, the article 12 of Preleggi of Italian Civil Code).
Even though law and social sciences are really connected, we can find out many difference between them. For instance, if we consider the therm "institution", we can provide two different definitions: in the field of law, generally we refer to the "forms" taken by institutions; in the field of social sciences, generally we refer to the behavior patterns considered constrained by people. In conclusion, we can say that law and society have their different rules, but social facts are more "spontaneous" than legal facts and so different is also the role played by social and legal rules.
Andrea Marseglia says:
According to sociology , social facts should be considered as creation of human activities.The French sociologist Émile Durkheim explains what is a social fact in his book "The Rules of Sociological Method", this book is considered the manifesto of the new science of sociology. For Durkheim "social facts are every way of acting capable of exercising on the individual an external constraint".
In every legal system social facts needs a legal regulation, this kind of regulation is called juridical form. The juridical form is "the legal dress" of social fact, it's very important because in this way people can understand what is right or what is wrong from a juridical point of view; it's clearly that not all social facts can be regulated by law,but it is important for a society to give a juridical form to a lot of these facts.
Institutions are structures of social order,they govern the behaviour of a set of individuals within a given community.According to this definition we can understand that a community makes a rule system which organizes the most important social facts and gives them a juridical form. In my opinion it is not possibile to find a difference between social fact and juridical form because this last is simply the way when legal system used to organize social facts.
Cedric Conboy says:
"What is a social fact and what is a juridical form? Describe the difference by referring to the concept of institution."
The first thing one must do with multi-pronged questions is to find a definition of the terms. Hence I shall define my terms before proceeding to provide an answer.
Social Facts are defined by Durkheim as any way of acting, whether fixed or not, capable of exerting over the individual an external constraint;
which is general over the whole of a given society whilst having an existence of its own, independent of its individual manifestations
In the UK we would use a more simple word, we would call social facts "conventions". These are the customs which regulate our unwritten (or more accurately uncollated) constitution. These are of special importance nowadays with the recent Brexit decision in the High Court. The decision effectively protected our constitution against the will of our PM. It is frightening that the two are at odds.
Judicial Form: The Meriam Webster dictionary defines this as EITHER of or relating to the administration of justice or the office of a judge OR of or relating to law or jurisprudence.
This is to say Judicial form concerns the administration of justice; the place of the judge or jurisprudence (the reason of law) itself.
Institutions: The most relevant definition of institution is "the established law or practice" also from the Meriam Webster. I'll always remember a scene which marked me in the film The Grand Budapest Hotel. M. Gustave the head concierge asked Zero, the new lobby boy: "Why do you want to work at the Grand Budapest?"
Zero replied, "Who wouldn't sir? It's an institution."
So to return to the question at hand: Social facts and judicial forms as defined above, are quite different from each other. But in a way, they are also quite similar. In the context of the way things are done, the former regulates the conduct of the individual whereas the latter regulates the conduct of the judiciary. This is quite a circular question. The institution regulates the conduct of the body which regulates the conduct of the individual which in turn governs the institution's parameters.
Each depends on the other. We need social norms to dictate which laws are archaic and which ones should be upheld.
The way individuals behave is also governed by the institution if the media which alters the thinking of people in accordance to the modern thinking. One could also say the media has a negative effect in some respects. But that is a debate for another time.
Valentina Ertola says:
The definition of institutions is: "structures or mechanisms of social order, they govern the behaviour of a set of individuals within a given community. Institutions are identified with a social purpose, transcending individuals and intentions by mediating the rules that govern living behavior." This is actually the same conclusion that we reached last class. Starting from this definition makes, I think, the understanding of the difference between social fact and juridical form very simple. Durkheim said that social facts consist in ways of acting, thinking and feelings that are external in relation to the individual,but with a power of coercion that permits them to impose themselves on him( this is almost similar with the part of institutions's definitions that says:they govern the behaviour of a set of individuals within a given community"). I partly agree with him, particularly with the idea that a social fact is something that involves a huge quantity of people and ends up influencing the individual, even if he has never thought about , for example, that particular argument or behaviour. The basis is that a social fact is unique, is strictly related with the society where it is happening, is current and concrete. On the other hand a juridical form is an abstract and especially general creation that is meant to include the biggest quantity of social facts that are connected with each other by a fundamental element( institution's definition says:"transcending individuals and intentions by mediating the rules that govern living behavior"). So these two terms are strictly connected because the juridical form is an attempt of grouping social facts in determined categories in order to regulate them easier.
Esther Haentjes says:
For Durkheim a social fact is a more or less fixed type of acting, which has the possibility to execute coercion, although they are totally independent from the individuals, which means that individuals don't have to be convinced, but the social fact still influences their acting. These social facts accommodate boarders and possibilities in the society. For Durkheim society is also more than only the Addition of individuals, society seems for him as an emergent phenomenon.
The juridical form is there to define those social facts. It gives them names, rules, structure and solutions. A Part from this the juridical forms makes it possible that every individual of the society have to understand the facts it the same way. There isn't really a big space left for individual interpretation.
For this reason there are institutions, you can also say "law" would be an institution. Institutions exist to structure the cooperationforms in always the same situation but with different persons. There is also a typical process for things to become an insititution:
first of all they should be the need of regularity, after this a relief, while regularity is already there, followed by a standardization and a process of habituality. It means the regularity becomes more and more normal in your life.
Only if the procede is completed you can call it institution. These institutions, also the institution "Law", create cultural and social identity, social integration, stability and order. The most important thing for an Institution is that it is accepted by the persons.
You can see that these 3 facts cohere.
Anne van Pagée says:
Anne van Pagée:
Émile Durkheim was one of the greatest sociologists the western world has ever known. He says that 'social facts have to be considered as things'. By this he wants to say that sociology is a science which is not based on subjective ideas, but sociology is based on hard facts.
Durkheim says that social facts are just as objective as facts in physics and biology. Because social facts are external but they are capable of influencing individuals (such as a language or a currency) -> social facts can influence the behaviour of the society! Durkheim says that a social fact is a thing that many people do very similarly because the socialized community that they belong to has influenced them to do these things.
Durkheim analyzed different social institutions and the roles they play in society and he stated that sociology is the science of institutions. By this he means that beliefs and modes of behaviour are instituted by the collectivity.
We can distinguish social facts from biological facts because social facts are representations and actions, they are ways of thinking, doing and believing of society. Social facts don't focus on individuals, but on society. Social reality is a reality sui generis: it exists outside of the individual.
According to Durkheim, when a sociologist starts a research he has to start with investigating the experience. Of course then he finds out that the experience is subjective, so then the job for the sociologist is to find an objective representation of these social facts. So what Durkheim wants to point out, that according to him the society has to be studied with scientific methods.
Although I am not really certain I get the concept of a juridicial form, I will give it a try:
I think the difference has to do with the fact that juridicial form is set by legislation and all that is formed with law plus it is based on rules (it keeps the society in place with civil codes), and that a social fact can actually influence the society because society needs moral and reasonably thinking (social facts can change your behaviour).
Anina Gröger says:
According to di E. Durkheim, "a social fact is any way of acting, whether fixed or not, capable of exerting over the individual an external constraint". Because of social facts, it is possible for us to study the behavior of entire societies and not only of individuals. Also, social facts are given facts, which are not made up from humans, but predetermined forms of acting. In contrast to that, juridical forms are not predicted but created by humans.
In this way, the juridical form regulates the social facts by giving them rules and a structure. They are laws to coerce societies to behave after certain forms and orders.
I think a institution is a system which is founded by this juridical forms to give communities rules and guide their specific actions and social orders.
So alltogether we could define it, that a community creates a system of rules or laws to organize their social facts.
Luigi Rocca says:
First of all I must say I disagree with the notion that social facts and judicial forms are something unrelated.
In my opinion the relationship between the two is quite strong indeed.
If we stick to the question we must say that the main difference between the two concepts is an historical and logical one: social facts precedes judicial forms.
Social facts are a flexible set of behaviours, notions and patterns that compose the daily lives of people.
Hence they concur in the creation of institutions (i.e. complex social formation).
When society changes, the lingering social facts change too.
Maybe we should say that the contrary is also true: macro-changes in social facts and social perceptions move the society to a new form of society.
Laws are the "clothes" we use to describe and regulate the emerging social facts, and so laws are the answers institutions (meaning the public institutions this time) give to the demand of regulation of new realities.
Laws are the set of rules that regulate the patterns mentioned above.
So social facts should be the "a priori" and the judicial forms the "a posteriori" in a complex process of production of social habits: social habits change; laws regulate how the changes and the new social habits should work, and so on and on.
But as I said, I disagree with this notion: laws are by themselves social facts.
Social facts are what drive the lawmakers in the world when they produce new normative contents.
Law doesn't exist by itself; social facts condition why laws will be produced; the way they will be produced; and how they will be produced (let's just remember that judges, as living people, are influenced by the evolution of social consensus).
But laws themselves can shape social facts.
No judicial form is unrelated to the social facts that caused their implementation, and no social facts is impervious from the laws that rule them.
That is because laws, or judicial forms, are not just a mechanical regulation of social interactions.
Laws are also a statement from authority about what attitudes and behaviours are "good" and what are "bad"; about what is legit and what is reprehensible; about what will be allowed and what will be punished.
Public institutions have potentially a great persuasive power on the minds of people – the kind of power that comes with authority: you can disagree, but your brain will try to force you to step back in the flock.
This is not always the case, obviously, it's not like an automatic process, but the persuasive power is there.
All gregarious animals are pushed to stay in the pack.
Paolo Napoli said that laws cannot change society. In other words, you cannot change how a man sees the world just by making a law.
That is true… and untrue.
As I said, normative acts have a strong, implicit, persuasive power.
Sure, you can disagree with them, you can think that a law is wrong, but on a subliminal level laws enforce concepts and ideas.
There is a similar idea in economics: the idea that you can change rational behaviours with the proper taxation.
If doing something becomes very expensive or risky, less people will do it, even if they want.
If something becomes cheap and easy, more people will do it, even if that means changing their behaviours.
Laws work in the same way.
By making something risky (like acting in a certain manner), the chances that people will act that way will diminish.
The new social routine that will rise from that change will stuck, after some time.
Then it will become the "new normal".
Let's make an example.
In the southern states of America, like Alabama or Louisiana, racial integration has come late, compared to the north.
In the fifties and in the sixties segregation was still a rough reality.
We could say that while you can't end racism with law, you can diminish the effect of racism; even more, you can force people to consider that a racist behaviour could be costly – the fear of jail can be really persuasive.
Of course, even today racism is a more pressing matter in southern states.
But we can't deny that the force the public institutions applied in case like "the Little Rock Nine" had an effect so strong that forced a slow change in social facts and in people's habits.
When the Army was called to enforce the Supreme Court sentence in the Brown vs. Board of Education case, the magnitudie and the power of the act was incredibile.
The Army escorted to the classroom nine colored students who were prevented from entering the Little Rock high school.
No surprise it is considered the real first step in the end of segregation.
This is a clear example of laws forcing changes in social habits.
More importantly, it's an example of public institutions enforcing good laws to change society.
The South was not ready for it, but it had to comply.
And by complying it had to accept a new social fact: colored people were going to frequent High School together with white people.
Today, black students are a big score of the graduating students of Arkansas – something that could not have happened without the ruling of law and the pressing of public institution on social institution.
In the end, my point is that I think it is incorrect to consider social facts and judicial forms something different, because often they are just the same.
It's not true that judicial facts are just and always an "a posteriori", since laws come often way before the society is ready for them.
Even so, laws are vital in forcing society in a given direction.
Angie Kapllani says:
Social effect is built in every group/ mass of individuals, usually imposed by older or hierarcial superiors. From a certain amount of individuals on, the standards or conventions learned, start to differ from each other. Thus there has to be an universal standard imposed by an institution or an organization of some kind of structure everyday life of a large group of individuals like institutions such as juridical ones, the police, educational ones, etc.
Society is influenced by law, as law is influenced by society. An example of how law changes the habits of society can be found on the rule that parents have to send their children to school. Even without this law I think that parents and people in general follow some unwritten laws and they would still care about their children's education and send them to school.
An example of how society changes or builts juridical forms is the law that women are allowed to vote. Women faught a long time for equal rights as men have, so the law had to adjust.
There can also be a divergence from conventions even juridical or social in special cases. It is possible if there is nobody claiming in justice. For example the movie "Fight Club". As long as nobody talks, nobody is comitting a crime. In the sense that there is no superior to judge their behaviour. It's the first rule oft he Fight Club: Don't talk about the Fight Club. But to establish this law free space, they need to impose a rule that nobody talks (Paradoxon).
Another example is an homosexual relationship. As long as no partner talks about it and no one from the outside knows, it cannot be judged even though the laws should not be reffered on people's sexuality.
Luise Wangler says:
Sociology proclaims that to understand the man as an individual is only possible in the context of the society he lives in. It is necessary to observe the conditions of this relation. The social fact can be described as the way of feeling, thinking and acting of the individual imposed by the external (the social power, social rules such as a system of co inherence) according to Emile Durkheim. Like this the consciousness of each individual is eventually a product of the society he/she is living in. Social phenomena as social rules are according to that consequences and reality, as we know it, is made by society. In this context also law is seen as a social phenomena, a field of society. An Institution can be the creation of structures, systems or rules as a product of living as/in a society. Just as the law can formulate the criteria of existence in a state. Social facts though are what we can observe and what we can describe about the society while on the other hand the juridical form has a pre consisting content, it is an abstraction to shape society according to how it should be. The legal form and its content are a conception of state in which the collective is a form of entity and the society an aggregation form. So in the end the unity, society is a pre comprehension or a product of the judicial definition, a social construction mediated by law. The law frames the reality in advance as an artificial power. In the end legal norms are dependent on the structuring power expressing the objective social consciousness.
Corinna Canale says:
A social fact is something that already exists in our society, which just deserves to be known and explored by sciences. It regulates the reality where we live but has not the shape of the law. It has the coercitive power to oblige people to act in a certain way, even if the people themselves don't realize it yet. Durkheim says that a social fact is "a way of act, think and feel external to an individual, so strong that it's imposed on the individuals". Of course, it can be more or less "powerful": for example, an opinion itself is a social fact, but in its weaker aspect.
The juridical form is the "guiding form to the real", like the dress that this social fact has to wear to become coercitive on population. In fact, even if someone behaves in a certain way just because a social fact imposes that kind of behavior, juridical form is the only way to dress up that social fact, which, as Kelsen says, is impossible to have in its pure shape. Objectivity doesn't exist for the law: indeed, a mediation with the law form is needed. That means that the social phenomenon is an artificial construction as well.
Talking about the concept of institution, this is described by different criteria both by sociologists and by jurists. A good definition can be found in the Treccani dictionary:
Institution is "the act or the entirety of acts with whom something it's instituted, which means it's founded, established, introduced in the customs; an authority instituted for a certain purpose; an organization, in the social, religious, moral, political fields, founded on a law or accepted by tradition, and the rules, constitutions, fundamental laws on which a political organization stands."
Institution (the result, from the process of "instituere", that in latin means "to create" and "to teach") is something which wears the juridical form as well. Let's think of the classical Italian law: we say that "law" is everything that has the law form, even if the contents aren't strictly tassative (of course, not conflicting with other law sources or going against the Constitution). It exists not because it's a fact but because it's the end of the process of instituere. It means that the law as an institution is something that first has the juridical form, and second that regulates a certain aspect of human life just because of its form. But we can also notice the opposite, that is institution as "instituere", the action. Why did we start to make that law? Of course there is a social fact in our society, an habit, a need that deserves to be regulated. Here's where law in its itinere starts to flows and to merge into the law as institute.
Anna Brisbois says:
According to Durkheim, a social fact is any more or less established mode of action, which has the capacity to exert an external compulsion on the individual. This means that any action that takes place and is carried out within society is a "social fact". The first and fundamental rule for Durkheim is, to treat the sociological facts as things.
The pressure on individuals is exercised through public opinion or society. Social facts are, on the one hand, relatively stable attributes of social reality; on the other hand, they change as a result of the actions of individuals.
The definition of the term "institution" states that an institution is a rule system that provokes a certain social order. Any form of deliberately designed or unplanned stable, lasting patterns of human relationships that are enforced in a society or are sustained and lived by the legitimate and orderly prescriptions.
Luckmann and Berger presented a broader definition in their book "Die Gesellschafliche Konstruktion der Wirklichkeit" (1966): "Institutionalization takes place as soon as habitualized actions are typed reciprocally by types of actors. Any typing done in this way is an institution." This includes predetermined, typed action sequences (such as greeting and introduction) as well as ceremonial actions (such as baptism and burial).
An institution has the function of controlling individual and thus social behavior in a particular direction. It is a system that is composed of the juridical form, the legal framework, and the social facts, the actions of a society. One can thus speak of formal rules (juridical form, legally fixed and state sanctioned) and of informal rules which are actually accepted in society (social facts). Institutions are self-organizing control systems. They bring order into everyday actions and thus reduce the uncertainty of individuals about what other individuals will probably do in certain situations.
Anael Souffir says:
During this week, we had the opportunity to study another interesting different approach of the law through the sociology. It is clear that several distinctions appeared between these two but I found that they were finally intrinsically bound.
The very meaning of sociology speaks for itself because it is usually defined as "the relation between man and society" in which law is enforced taking into account the juridical form, here is the first obvious link.
To understand what sociology was we studied Emile Durkheim approach and as we all started by mention one of his famous quotations, i'll do so one more time. He defines sociology as the concept/analysis of social facts.
When I first heard this expression I uncounsciously but straightly thought about an imposed truth we can't denied. Of course, I didn't know the point of view of E.Durkheim yet and I was surprised to discover how he perfectly defined it, with the right words to discribe what I understood. He used very precise and powerful words and expressions such as "external","dependant", "in virtue of" or "impose" which, according to me, are full of meaning.
It couldn't be better explained from an anti-individualist point of view and it leads us to bring here the thoughts of Durkheim or even Mauss about the notion of institution.
Any social forms constituted is considered as an institution, they are the very object of sociology because they allowed to cristallized the objectivity of society.
So how are we supposed to establish a clear distinction between social facts and juridical forms if there is such a connection between these two ?
I ended up by thinking that the main distinction between a social fact and a juridical form remain in their literal definitions. Indeed if we've already defined the notion of social fact, we still need to enlighten about the juridical form.
According to a very basic definition , the juridical form is part of the juridical status which is supposed to determine your situation, your rights and your duties thanks to a body of literature.
I won't stick to the anti-individualist point of view to make this distinction even though it could be confusing for you. The social facts exudes from the human being itself, even if we can consider it's external like Durkheim does, it's still done by the individual.
Taking into account the will of the individual in "doing" a social fact would be even more confusing because we could introduce the role of the unconsciousness..
We will consider for now, that a social fact appears thanks to the individual action which consititutes a certain part of contingency whereas the juridical form is set and established before having consequence on the individual situation.
Since they are already settled we just have to put individual in one of the category of juridical form or juridical status thanks to institutions.
That's where institutions are relevant. Other definition of the notion of institution allow us to stress this distinction.
Indeed, according to François Dubet, institution is perceived as organisations and relational mecanism tasked with instituting individual and producing a social type.
It is basically a legitimate mecanism of the power building and decision taking.
Regarding the link between the social fact and the institution, we make out the two notions evaluating their existence. We can emphasize that social facts does not need institution to exist whereas juridical form does.
No matter what position we decide to pick, social fact will always happen. On one hand, If we consider that the social fact is external like Durkheim or Mauss, it will still continue to happen even without the influence of institution, because for a social fact to exist , only a man living in a society is needed.
On the other hand, if we choose the Weber point of view which literaly has the perfect opposite theory, it strengthens even more this distinction, because if we regard that the analysis of the society is based on the individual behaviour (Weber use the word "Verstehen", which means "deeper understanding") we can assume that social facts kind of determine the society in which institution exist therefore it would be the social fact which frames the institutions whereas juridical form does not in these two point of view.
However they still remain intensely bound in my opinion first because there is a line of continuity between these notions. Everything starts with a social fact committed for some reason we could explain either by an external power or by the will of individual and its behaviour. Then, if we follow the given definition of what is an institution, it ensues from that institution are created by the socials facts and finally the institutions determine the juridical form.
Of course it is an endless debate because it depends on the perception we have about these notions and the definition we decide to attribute to these, still, we can establishe several points of similarities and distinction.
Sophie Schaaps says:
In his work "Les Règles de la méthode sociologique » of 1895, Durkheim explains that social facts are rules according to which humans are acting. Those rules are depending on every act and are not influenced by the acting of the individual. The social facts, supported by regularity, are not a "secondary effect" of social life, but a real own social structure. Durkheim established some criteria for the social structures: the rules of the structure influence and are valid for the individuals. Furthermore the social structure (the society) forces the individual to follow their rules. It is related to the "conscience collective" of a society in which you are born: the "conscience" is transmitted to the individual by upbringing and education and is reflected in moral standards, customs and belief. It is not the universal validity of a social fact which makes it collectively binding: the imagination of the collective that a social fact is binding, makes it in reality to a universal validity.
A juridical form is the nomination of legal basic conditions which regulate the individual forms of society. It does not only regulate the relations between people of the societies, but serves also the security of legal transactions. The societies and its humans have to follow the legislative framework given by the juridical form.
The definition of institution depends on the different disciplines (law, political science, sociology etc.). According to a concurrent and general definition it is a system of rules. It guides and forms the social behavior and actions of societies, groups and individuals, so that the result is predictable for other interacting participants. In a narrower sense it means also social and public services: authority, law court, universities and schools.
The economist and economics historian Douglass C. North (1) wrote: Institutions are the humanly devised constraints that structure political, economic and social interaction. They consist of both informal constraints (sanctions, taboos, customs, traditions, and codes of conduct), and formal rules (constitutions, laws, property rights). Thanks to North's definition of institution, it is possible to describe clearly the difference between social facts and juridical forms. The social facts are the "informal constraints", because they developed from an action to a habit (regularity) and finally to a rule. The juridical forms are the "formal rules". They were first instituted and became then a "habit" in the life of a society.
Nevertheless, disregard for both forms of these rules, whether social or juridical, would be sanctioned. To conclude, I would like to point out this similitude: these two types of rules inflict sanctions. They can be direct (juridical form) or indirect (social fact), but in every case they do not stop to remind that they are imposing upon the individual. So that it can not be the opposite.
(1)The Journal of Economic Perspectives,vol. 5, No. 1 (Winter, 1991), pp. 97.
Maria D'Ercole says:
A social fact is the ability for some habits of a culture or of a country to become widely accepted and widely embraced by the people. A juridical form is a choice every citizen must make in order to build a juridical structure. The difference is subtle but strong. Whereas a social fact is the combination of a well-recognized behavior, the juridical form is the choice of how to behave from a single citizen. Moreover, institutions are the natural reaction to those two concepts. A social fact may become an institution. Look in the United Kingdom for instance. The Queen is an institution coming from a social fact that is the acceptance of royalty. A juridical form on the contrary is the basis of an institution. The juridical form of elections are the basis on which a city builds a town hall and hence becomes an institution.
mariabeatrizseica says:
Law and society are concepts that share each other dna in a sense, and are related in such a deep level that would not be possible to have one without the other: Firstly, because society cannot exist as a functional system, if we have no law to impose ground rules and values and secondly, the Law will conquer nothing in a no-men land, that is, the law needs a society to be able to exist and grow, as a stage where the script takes the actors into account, but at the same time imposes an role (even mostly passive) in everyone.
That said, in my opinion a juridical form is a rule, a regulation that limits what can and can't be done, what is allowed and what's not, a guide for conduct or action, and in that sense, it gives shape and body to what I consider one of the greater institutions: Law. So, an institution is, without a doubt, a social structure who is limited and regulated by rules. In the case of Law, regulated by the juridical forms, that, depending on what the extend and intensity are exercised, can influence more or less and support that social platform. These codified conventions cannot, however, in my insider perspective as a future jurist, forget the ideal of justice where they are based, otherwise, the risk of transforming the codifications in mere means to an end is very high, and wil definitely lead to a functionalism of Law.
In the words of sociologist Émile Durkheim, social facts "consist of manners of acting, thinking and feeling external to the individual, which are invested with a coercive power by virtue of which they exercise control over him". So, for me, the social fact is the matter who transcends the individual and is transversal to the society in general. In that sense, the social facts allow to give body to the juridical forms, and are the source of the moral values that law tries to implement. In other hand, juridical forms are shaping the social facts themselves, and are empowered by them.
In conclusion, the concept of institution is fulfilled by the bias relationship between social facts and juridical forms, altering each other, and in that sense, allowing each to grow, as at the same time define each other's boundaries
Maria Beatriz Seiça
Amanda Rossini says:
In Durkeim's opinion, social facts are unanticipated consequences of the human being's behavior and furthermore these facts are always related to the human figure and never intentionally created. If we consider that the society is formed by human beings and their interactions, it is easy to understand the big role of the social facts on it because they are an indissociable part of the human interactions. Social facts can be understood in a very broad way as the ways of thinking and acting that rule the society, such as institutions, beliefs and laws. In this case, one meaning attributed to the word "institution" is : "complex social forms that reproduce themselves such as governments, the family, human languages… and legal systems". With that said, the connection between the social facts and the legal forms is of supporting and molding in one another. Any and every society needs a system where the rights and duties of a citizen are laid down as a type of insurance that helps with the maintenance of the human relationships. In this system we find the juridical forms whose aim is to regulate or organize the social facts of a certain society. In conclusion, one could say that the social facts are extremely connected to the juridical forms because both complement each other in the creation of the institutions and the difference between them is that the social fact is something pre-existing and an uncontrollable consequence of the human attitudes towards society, whereas the juridical forms are created to regulate this human behavior and give it a sense of direction. In the end, theses concepts serve to identify the functioning of a society where every individual has a role in contributing with an adequate behavior towards the institutions on the basis of the social facts and regulated formally by the juridical forms.
Federico Baffa says:
According to Durkheim a social fact is a "new species of facts" that "cannot be confused with organic phenomena": social facts are "any way of acting, whether ruled or not, capable of exerting over the individual an external constraint". So we can think to family, to education, to religion, as examples of social facts. Durkheim is considered one of the founders of modern sociology because he states that the social facts have to be considered as empirical facts which is to say that the sociologists have to observe social fact from outside, with an external point of view, and of course without any kind of moral judgment. This is the only way to create sociology as a real scienze, with his own empirical method.
The difference between social fact and juridical form is that social fact logically precedes juridical form: social facts are given facts, which are not made up from humans, but predetermined forms of acting. In contrast to that, juridical forms are not predicted but created by humans and they are the result of the social evolution of a certain country.
For what concerns the "institutions", they can be considered under different points of view. In the field of social sciences we think of institution as the social patterns that found a particular institution, for example the Queen of England. In the field of law we consider institutions trying to categorize them in different juridical forms: it's a matter to give names to empirical facts in order to insert them in a coherent system which is public or private law.
Francesca Ginese says:
The French sociologist Émile Durkheim in his work "Les Règles de la méthode sociologique" defined the term "social fact" and argued that the discipline of Sociology should be understood as the empirical study of social facts. For Durkheim, social facts "consist of manners of acting, thinking and feeling external to the individual, which are invested with a coercive power by virtue of which they exercise control over him". They cannot be confused with the organic phenomena, nor with psychical ones, which cannot exist, except through the individual consciousness.
This expression fits with the social world, designating those phenomena which fall into none of the categories of facts that have already been constituted and labeled.
Durkheim argued that social facts have, sui generis, an independent existence greater and more objective than the actions of the individuals that compose society.
He did the first methodological study of a social fact in the context of society, studying the suicide. He arrived to the conclusion that religion influenced the probability of suicide.
Durkheim is convinced that studying social facts has a concrete function of "doctor" of the worst things existing in the social world. He suggests solutions for the "healing" of the problems, just as a doctor does for the diseases.
The law gives a sort of regulation to social facts. Per Durkheim believes that a crime comes into existence when a social law impose a specific behaviour that has been violated.
The difference between the social fact and the juridical form lies in their origins. The first mentioned is something pre-configured and totally far from its creation. The juridical form, instead, is something directly created by the mankind.
The term "institution" derives from the latin verb "instituere", which means "to establish order, establish".
It usually means a consistent and organized pattern of behaviours or activities established by law or custom, such as the State, the Church, which is self-regulated according to generally accepted norms. For example for the education we talk about school institution and for security we talk about military institution.
On the contrary, the meaning given by sociology to the term "institute" refers to regulatory models that are a system of rules imposed by the company (society) in the social life of individuals. For example the language, the family etc.
The institutions are perceived by individuals as external realities, so the fundamental characteristic of an institution is its "objectivity". A clear example of it, is Durkheim's work about the social facts, that are imposed to the individuals independently from their own wills. Thus, considered the institution's objectivity, there are some fundamental rules and behaviour connected to the institution. For example, there is a right and wrong behaviour.
Another characteristic of the institution can be deduced by the institution's externalities, that is its coercive power: the penalty. Keeping a certain behaviour can break a rule in different degrees; to be rude, for example, can only be seen as a bad education or as a moral disapproval within a group of people.
A fourth aspect is the dynamism of the institutions, the set of rules and standards founding institution is not frozen in time, it is continually reprocessed and modified through social practices.
Another key feature of it, is its legitimacy (which is what Durkheim called moral authority). If your behaviour is wrong, you can be punished, therefore, to have a right behaviour is perceived as a duty, but, in addition to this, having an institution telling you what to do, can make you see that certain behaviour as desirable, thus, as the best solution.
A final key aspect is the historicity of it, thanks to which, it is possible to retrace the changes and to deal with comparative analysis.
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