Sociology Of Law - "living Law"

Boaventura de Sousa Santos is a Professor of Sociology at the School of Economics in Coimbra and is active at the World Social Forum in Brasil.1 Santos wrote extensively about the people of Pasargada and their internal legal affairs in his publication Towards a New Common Sense. Ehrlich was an Austrian legal scholar and sociologist of law. Separating notions of norms of decision and social norms, he rejected the hierarchical notions of law such theorists as Hans Kelsen supported. He developed a principle of "living law" which regulates social life, different to the norms of decision applied by courts. Here I will consider whether Boaventura de Sousa Santos' descri ption of "Pasargada law" can be analysed as an example of Eugen Ehrlich's concept of "living law".

Pasargada is one of the largest and oldest squatter settlements in Rio de Janeiro; forming in 1932. By 1970, it had a population estimated at 50,000. Originally the land was privately owned, but over time, it became government owned and how this happened is still uncertain. Pasargada is without question an area of high poverty, crime and illness. Wooden huts, street sewerage and housing without water supplies are common characteristics of the area. Today Pasargada is located at the centre of the city, making the lands value extremely desirable. The squatters of Pasagada developed an intense economic and social system consisting of such things as commercial housing, grocery stores, churches, football teams and charities. However, it is the formation of the Residents Association in 1968, which deals with law and order, that has drawn the curiosity of western sociologists such as Boaventura de Sousa Santos.2

According to Santos, the Residents Association was the first community based, action agency in Pasargada. It was created with the objective of organizing the autonomous and collective participation of the residents, in the physical and civic improvement of the community. The Association has "statutes" which include, "to act as a linking element between the local population, assisting the latter in the resolution of all problems concerning the community" and "to act legally and with great zeal for the maintenance of order and for the security and tranquillity of the families".3

Despite these statues most residents see the Association as a place to go when they have a housing problem. This would include organizing communal work to repair houses, contractual issues, disputes over construction rights, demarcation of boundaries, passage/occupation rights. Thus residents bring forward problems involving their public legal relationships to the community as a whole or private legal relationships to each other. The association could authorise or supervise any housing repair and demolish any house built without it's authority. Overtime it gained jurisdiction over land and housing in Pasargada.4

Leaders of the association spoke of it's "official character", implying they had state authority for their actions, but this is not at all true. A belief developed that the Association would enhance the security of social relations by giving the settlement legal status. The Association claims no jurisdiction over criminal matters, neither handling such matters or reporting them to police. The Association does not involve itself with these matters because it concentrates on community development, not social control. It would have to dedicate a large proportion of it's time and resources into crime prevention. Furthermore, the authority of the Association has been undermined by the increasingly authoritarian state, denying the Association the resources it would need. Criminals would not bow to the weakened authority of the Association.5

The extent of relations between the Association and the state are difficult to determine. During the early 1960's the state was interested in developing the community, but as the decade drew to a close, the state emphasised it's control and the elimination of any "dangerous" autonomy. Community organizations must accept the "assistance" of the state or face sanctions. To neutralize this, the Association has not refused the assistance explicitly, yet ignores the orders and evades sanctions. Relations with the police are complex, the community avoids them, infuriating an agency that's duty is to uphold social control; therefore the police try to maintain good relations with the Association. The police offer the Association assistance if they want it, the Association will sometimes threaten residents with police action but rarely use it. The Association does not want to become closely aligned with the police, an agency the community does not like. There is little substantial cooperation between the police and the Association, usually just gestures of a willingness to coexist peacefully.6

The Association has, by the standards of the area, a luxuries office in the middle of Pasargard. There is a presidente (who will hold meetings with the parties in dispute), secretary and treasurer. Association membership is limited to residents, who must pay a fee. When drafting a contract members must see the presidente, other members will serve as witnesses. The parties explain their intentions and the presidente will ask questions and explain their rights. Santos contends that the presidente does this more s to assert the right of the Association to do so. In doing so jurisdiction and officiality are asserted. By answering the questions, the parties feel more duty bound to uphold. During drafting, the Association aims to protect the community and the weaker party. According to Santos, drafting creates ordering normatively beyond the content of the clause. They are agreeing to terms used by other residents, they are involved in an ongoing legal structure that will survive their relationship.7

Once terms are agreed, the secretary and treasurer type out the contract and stamp it, giving it a degree of formality. The contract is read aloud by a third party, making it independent. One copy is given to the parties, the association keeps the other and ratification occurs. This ratification invokes the norms to be followed but also the consequences of failure. Both parties now have a perception or belief that they have a source of security. Santos suggests that this perception comes from "institutional rhetoric, a persuasive institutionalization of forms and procedures", he suggests that they are customary in nature and "intimately related to the atmosphere of officialdom". It increases the sense of externality and alienation which is the core of a normative structure. At signing polarization occurs between the parties, they are no longer the creators. Witnesses add to the perception of popular normatively, an ongoing legal process of tradition. The document is stamped by the presidente, thus the Association ensures a normativity in the relationship, a normativity threatened by the fact they are used in administrative documents by the Association.8

In a case study, Santos highlighted a contract which used the word "benfeitoria", a phrase used in the official legal system and "borrowed" as he claims, by the Association, despite the fact they use it for a different meaning. Santos contends that Pasargada law is not a closed system, but one partial legal system coexisting in a situation of legal pluralism, with another partial yet dominant system. Pasagarda has borrowed not the norm, just the idea of a logical separation of things relating to land or property. He contends that Pasargada law depends on state law to determine the legal status of land. The Pasargada adapted it to their needs, making the resulting norm the antithesis of the official rule. It is aimed at minimising conflict with the official system. Santos suggests that basic norms and their consequences are known in Pasargada through repeated experience and contact with legal officials. Pasargada inverted the norm, but it provides them with the foundation of legitimacy for transactions amongst their peoples. Although these transactions are officially illegal, they are held valid within the confinements of Pasargada. Two contradictory notions of legality coexist without interference as their jurisdictions are kept separate. This borrowing technique allows the inferior Pasargada law to survive alongside official law, which defines normative problems but cannot always resolve them and also allows the Pasargada law to deal with specific social conditions of the community.9

Towards the end of the nineteenth century legislation became the dominate source of law. Legal positivism, as seen in the likes of Jeremy Bentham and John Austin, suggested that law was the commands of the sovereign (through legislation) and supported by state sanction - judges acting solely as a mouthpiece. Such law is "purified", according to Han's Kelsen, of ethical and political considerations. Legal positivism gained many critics, amongst them Eugen Ehrlich, concerned with the narrowness of the concept in light of moral and political issues.10

Ehrlich submits that large areas of social life are governed without the need to resort to institutional means of law. That lawyers deal with the rare abnormal issues, rather than the normal regular issues that dominate society. He describes the issues lawyers deal with as "norms of decision", rules that should govern conduct. He continues that the rules actually followed in social life are "living law", designed to prevent disputes and resolve disputes without state institutions involvement. This would very much be inline with the concept that developed in Pasargada, as the police were rarely requested for their services. He has a very broad perception of the scope of law. Roger Cotterrell highlights institutions and groups that have their own formal rules of self regulation within the UK, accepted by the state legal order through a supervisory jurisdiction of the courts. Historically, law has been conceptualised as a plurality of interlocking legal orders, when trying to make sense of legal development. This is very much inline with Santo's perception of the two coexisting legal systems of Rio de Janeiro. Ehrlich realises that state law controls the courts through which law is administered, ordering society. However state law derives from social life and he contends that state law only dominates in the eyes of lawyers. That state law is often irrelevant in the real structure of social control. When looking at how social control worked it Pasargada, I would submit that state law played a limited, almost none-existent role within the life's of the community members. Pasargada developed complex methods of social control within their Association by reference to officialdom, custom and tradition.11

Ehrlich purports that state sanctions are irrelevant within social life, and the threat of such sanctions are not even considered by people. People act out of habit to avoid the consequences of deviance. People act to avoid disputes, loss of reputation or lose of custom. Ehrlich puts forward that people life with associations, formal or informal groups of numerous kinds and law is the inner ordering of these associations. Members have a position and duties and rights attached to that position. The sanction arises from these individuals fear of losing their position within the association. Refusal to conform to the norms leads to a weakening of the bonds between the person and the association. State law is just one association within the social whole, used for social deviance that is particularly serious, against the types if people who have already been excluded from the social associations. Even these "outcasts" fall within the scope of this widest of associations known as state law, which will then punish. State law provides the external protection of systems of natural law, however, the relationship between the state and Pasargada is so intensely complicated and untrusting, I would submit that the state would not want to provide such protection here. In my opinion this is an interesting if minor contradiction to the idea of Pasargada law being a form of natural law. Natural law works on co-operation based on reciprocal obligations. Stewart Macaulay, an American lawyer, found that business agreements were often made without replying on contract law and that lawyers were not used in such business relations as this would be seen as a forms of hostility or dishonourable. Such law would only be invoked where relations had broken down and there was little to lose. In Pasargada the consequences of breaching a contract would result in isolation from the group, shame, loss of reputation. The Association would threaten members with the intervention of state law, which if needed they could and would use. Thus such members would be outcasts from the realms of the Pasargada group and would fall within Ehrlich's large scope state law and face sanctions. However the vast majority of the community follow out of fear of loosing their position and a believe in their obligations to uphold their agreement after the presidente has ratified the document. Pasargada law related specifically to the issue of housing and land control, this was just one association amongst many in Rio de Janeiro. Clear parallels to Ehrlich's concept of multiple interrelated associations can be drawn.12

The idea that living law provides its own system of sanctions only makes sense to the individuals within the association regulated by it. This can clearly be linked to Santo' findings regarding the use of the phrase "benfeitoria" and how it had a specific, different meaning to the people of Pasargada.13 I would also like to return to Pasargada's ability to borrow not only phrases from the official legal setting, but also ideas and images. The Residents Associate rather cleverly sort after the image of officialdom and legitimate authority, which eventually became institutionalised in the minds of the people. It borrowed this identity from the official legal system of the country, very much like it did with regard to the phrase "benfeitoria". All of which put a duty on the person's to commit and customs developed, moral principles that people upheld without thought. This very much relates to Ehrlich believe that members have a position, duties and rights.

I would submit that there are strong arguments to be made that Boaventura de Sousa Santos' descri ption of "Pasargada law" can be analysed as an example of Eugen Ehrlich's concept of "living law". Living law is designed to prevent disputes without the need for state intervention, a goal shared by the Residents Association. Social control did not involve state power to a high degree, a characteristic Ehrlich mentioned in relation to natural law. Both Pasargada and natural law work around a bases of legal pluralism, associations coexisting with other systems of law. Ehrlich believed in the idea that members act out of a habit or moral duty, to maintain their position within the association and it is evident that the people of Pasargada behaved in this manner. An interesting point of contradiction is the complex relationship shared between the police and the Residents Association, and I am not entirely convinced that this fits well with the notion that state law provides the external protection of systems of natural law, as I am not convinced this is what the state would want, a state that seems more interested in taking control away from the Association.