The iron bars get closer: Anormative social regulation

Abstract

The ‘problem of normativity’ concerns the role that society’s value system, norms and conventions play in legislative regulation. Rapid social change was always problematic, for example the swift displacement of French Revolutionary law by the Napoleonic Code. What validated one or the other, since both broke with previous social norms? Traditionally, both legal and social theories appealed to shared normativity to account for the ‘bindingness’, the sense of obligation held to inhere in the law. However, the intensification of morphogenesis had growing negative repercussions on all the normative components of the legal order: law itself, norms and rules, conventions, custom and etiquette. It is argued that as these elements weaken, ‘Anormative Regulation’ (or ‘Bureaucratic Regulation’) takes over in contemporary society, entailing no ‘ought’, exerting a causal force not a moral one, and operating through penalizations and prohibitions, which are punitive without entailing either a criminal record or invoking social sanction.