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Law, Society, and Industrial Justice

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Law, Society, and Industrial Justice Law, Society, and Industrial Justice Law, and Industrial Justice Philip Selznick with the collaboration of PHILIPPE NONET and HOWARD M. VOLLMER RUSSELL SAGE FOUNDATION 1969 vi Preface That association was made possible by the Center for the Study of Law and Society, subsisting on a grant from the Russell Sage Foundation. I ex¬ tend thanks and greetings to all who have been connected with the Center, especially Leonard S. Cottrell of the Russell Sage Foundation, Vice-Chair¬ man Sheldon L. Messinger, Mary Alden, Jerome E. Carlin, Caleb Foote, Sanford H. Kadish, Leo Lowenthal, David Matza, Frank C. Newman, Jerome H. Skolnick, and Elliot Studt. As always, I am indebted to Gertrude Jaeger Selznick, for specific help on intellectual puzzles and for unflagging devotion to the examined life. Philip Selznick Berkeley, California May, 1969 Contents PREFACE v Part One: Legal and Social Theory 1. LAW, SOCIETY, AND MORAL EVOLUTION 3 Law as generic, 4 Law as a realm of value, 8 The ideal of legality, 11 The morality of cooperation, 18 The emergent polity, 26 Incipient and inchoate law, 32 2. THE QUEST FOR A LAW OF ASSOCIATIONS 35 Associations and freedom, 37 The corporate entity, 43 Contract and association, 52 Power and property, 63 Part Two: Social Foundations of Industrial Justice 3. MANAGEMENT AND GOVERNANCE 75 Rationality, legality, and managerial self-restraint, 75 Human relations and the rule of law, 95 Politics and human relations, 114 4. COLLECTIVE BARGAINING AND LEGAL EVOLUTION 121 Toward the prerogative contract, 122 The constitutive contract, 137 Creative arbitration, 154 From prerogative to policy, 178 5. EMPLOYEE PERSPECTIVES ON INDUSTRIAL JUSTICE 183 Two meanings of fairness, 185 The commitment to rules, 193 The “regular employee”, 196 The scope of authority, 197 Occupational identity, 200 Seniority rights, 202 viii Contents 6. PUBLIC POLICY AND THE EMPLOYMENT RELATION 212 Regulation by indirection, 215 Voluntarism and passivity, 225 Private law public policy, 229 Part Three: The Emergent Law 7. PRIVATE GROUPS AND THE LAW OF GOVERNANCE 243 Public law and private law, 244 Due process asthe law of governance, 250 The concept of private government, 259 INDEX 277 Part One Legal and Social Theory Chapter 1 Law, Society, and Moral Evolution This is a study of industrial organization, viewed in the light of moral and legal evolution. “Moral evolution” is a somewhat unfashionable phrase, but it can usefully denote the progressive clarifica¬ tion of human ideals, and the enlargement of institutional competence to serve them. Our concern is with a special ideal—the rule of law—and its extension to the conditions of employment in modern industry. The larger context of our inquiry is the embodiment of ideals in insti¬ tutions, the infusion of group life with the aspirations and constraints of a moral order. We take it for granted that this achievement, where it occurs, is partial and incomplete; that it is often born of confusion and sustained in struggle. We assume that to study the institutional embodi¬ ment of values we must look closely at the values themselves, at the char¬ acteristic ways they are elaborated and extended, and at the social circum¬ stances that invite or resist them. We begin, in Part One, with some relevant issues in legal and social theory. Since the theme of the study is, in effect, legal “development,” Chapter 1 treats the concepts of law and legality for the light they may cast on that process.1 Chapter 2 specifies the context more closely by re¬ viewing some aspects of the law of associations, with special attention to problems of legal cognition. We then turn, in Part Two, to the sociological meaning of various developments that have received considerable atten- 1 This chapter incorporates modified portions of the following essays by Philip Selznick: “Sociology and Natural Law,” Natural Law Forum 6 (1961), 84-108; “Sociology of Law,” International Encyclopedia of the Social Sciences (1968). 3 4 Legal and Social Theory tion in recent years: the evolution of bureaucratic and other rational forms of organization; the rapid growth of collective bargaining and labor arbi¬ tration; the enlargement of governmental restraints on the authority of management. We also report on the attitudes of industrial workers toward procedural and substantive fairness. Chapter 7 returns to the more general issues of private government and emergent law. Our treatment is for the most part limited to the American experience. A number of themes in the sociology of law have a central place in our discussion: (1) the relevance of legal theory to private, non-state institutions; (2) the nature of legality, and its social foundations; (3) incipient and inchoate law; (4) legal cognition, including the changing content and social function of legal abstractions; (5) the relation between law and politics. These general topics are explored in the course of a more pointed concern for the extension of the rule of law to industrial employment. Law as Generic If we are to study justice in industry, or in any other specialized insti¬ tution, we must first be clear that law is found in many settings; it is not uniquely associated with the state. We need a concept of law that is suffi¬ ciently general to embrace legal experience within “private” associations, but not so general as to make law lose its distinctive character or become equivalent to social control. Definitions and concepts. Although we need an appropriate concept of law, we have no wish to argue for a special and restrictive definition; we do not propose stringent criteria to limit how the word “law” may be used. In our discussion we try to bear in mind the difference between how a term is defined and how we conceive a phenomenon. In the logic of social inquiry, “concept” has a peculiar status. When we speak of the concept of totalitarianism or mass society or alienation or culture or socialization, we have in mind something more than a handy definition. The concept is open-ended, subject to debate and revision, ac¬ cessible to empirical judgment. That is so because “concept” shades into “theory.” Indeed, to explicate a concept is to state a theory. Social science is best served when definitions are “weak” and concepts are “strong.”2 A weak definition is inclusive; its conditions are easily met. 2 This point was suggested by Gertrude Jaeger Selznick. Law, Society, and Moral Evolution 5 A strong concept is more demanding in that, for example, it may identify attributes that are latent as well as manifest, or offer a model of what the phenomenon is like in a fully developed (or deteriorated) state. Accord- inglypjn what follows the word law is used in a way that is general enough to embrace all legal experience, however various or rudimentary. At the same time, law and legal process are understood as pointing to a larger achievement and a greater elaboration. The centrality of authority. Contemporary jurisprudence is reasonably comfortable with law conceived as a generic phenomenon. This appears clearly in the writings of H. L. A. Hart and Lon Fuller.* 3 Although they disagree sharply in other ways, both offer a theory of law detached from the concept of the state, that is, the organized political community. More¬ over, both reject coercion as a touchstone of the distinctively legal. Neither public government as usually understood nor “orders backed by threats” are central to the idea of law. Rather, rule and authority bring law into focus. A legal system is known by the existence of authoritative rules. Thus Hart argues that, in stepping “from the pre-legal to the legal world,” a society develops special rules for curing the defects of a social order based on unofficial norms.4 A regime of unofficial norms has a num¬ ber of inherent limitations, including the difficulty of resolving uncer¬ tainties as to the existence or scope of a norm. In a pre-legal setting, no criterion or procedure is available for settling such issues. The distinctively legal emerges with the development of “secondary rules,” that is, rules of authoritative determination. These rules, selectively applied, raise up the unofficial norms and give them a legal status. It follows that a “rule is something more than an observed regularity of conduct, more also than a social prescription or norm. A rule is a special kind of norm—one that bears some warrant of validity.5 It therefore tends to be formal, explicit, deliberately instituted. It is in some sense official. The special work of law is to identify claims and obligations that merit official validation and enforcement. This may consist of nothing more than the establishment of a public record, say, of land holdings or clan pre¬ rogatives, invested with a special claim upon the community's respect as a guide to action. When institutions emerge that do this work we can speak of a legal order. These institutions need not be specialized. They 8H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961); Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1964). * Hart, op. cit., 91. 5 As we use it at this point, “rule” does not necessarily carry a connotation of specificity; it includes authoritative “principles.” On the significance of principles, see below, 26 ff. 6 Legal and Social Theory may have no resource for coercive enforcement. It is essential only that their determinations affecting rights and duties are accepted as authoritative. This approach may be compared with the sociological theory of Max Weber, who attempted to distinguish law from other modes of social con¬ trol by offering a rather austere “operational” definition. Weber agreed that not every normative order is a legal order.
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