Distance and Law

Law is an important engine of construction. Fitting law within the role- atomistic perspective suggests a conception of law as a form of social scriptwriting, shaping with a single stroke individuals and collectivities alike. Law performs this activity for the most part in four typical ways.

First, law participates in scripting existing roles: for example, parents are required by law to provide for their children, and public officials are forbidden from accepting bribes. This partially defines the corresponding collectivities: families are understood, in part, as collective entities designed to provide for children’s needs, and public institutions are defined in part by an ethos of impartiality and fairness. Second, law creates roles that would not be available otherwise, such as judge or juror. To perform such roles one needs instruction in the relevant legal scripts. Other legally created roles are less formally structured: think of the litigant, witness, or prisoner. Once again, these roles constitute collective entities as well: courts, prisons, etc. Third, the law bans some existing roles—such as thief, arsonist, and hit man—and seeks to eradicate them. The fourth kind of legal scriptwriting consists in the law’s effects on other scriptwriters. Many nonlegal roles are charged with writing or modifying the scripts of other roles. This is true especially in hierarchical contexts, as when the management of a business firm devises the roles of employees. Through its influence on these scriptwriting roles, law shapes indirectly the roles that are being fashioned by the extralegal scriptwriters. Such legal “superscripting” occurs, for example, when law sets requirements on employers’ structuring of retirement plans, or on the disciplinary proceedings of schools or universities.

Looking at law through the lens of social roles helps draw attention to various aspects of legal control that otherwise remain in the shade, but here I’d like to discuss just one theme. Like other aspects of roles, role-distance can be affected by law. One way in which law bears on distance is through the intermediary of the personal norms, such as those pertaining to responsibility and autonomy, we’ve discussed earlier. Law at least partially determines these norms, and so participates in calibrating the distance of various roles. But there are other ways of affecting distance through law. Let me mention two. The first is by setting entry and exit conditions of various roles. This is a broad category, ranging over such disparate areas as marriage and divorce, hiring and dismissal, immigration, elections, and many more. In all of these areas, the law sets incumbency conditions for assuming and shedding a role—of a spouse, an employee, a citizen, or a legislator. The significance of these conditions, and hence of the laws that define them, goes beyond determining who will hold a given role and for how long. The ease or difficulty with which a role can be acquired or vacated bears importantly on role-distance. Other things being equal, the more enduring and secure a role, the more suitable it is for being enacted in a proximate manner. The same incumbency conditions also serve as gatekeeping devices in the corresponding collectivities. By influencing role-distance, incumbency conditions help fix or change the nature of a collective entity and its location on the organization/community spectrum. The other type of distance-affecting devices concerns compartmentalization and spillover. Compartmentalization refers to practices that treat a particular role as separate from other aspects of the self. Spillover describes the opposite approach of indiscriminately attending to or affecting a number of different roles, disregarding the boundary between them. Consider once more the workplace. What is the relation between the dress code at work and the employees’ after-hours attire? How strictly role-related is the information a person is encouraged or required to reveal in carrying out different roles? Which aspects of an employee’s life may the employer seek to influence or regulate?

Through these and other avenues, law may increase role-distance or decrease it. Whatever its objective, however, the very fact of legal intervention in a role’s script may tend to induce detachment. As I’ve mentioned earlier, my interest in roles is primarily in their script and so in the normative guidance they provide. But when the law tampers with a script, it typically adds the threat of sanction to enforce the change. And external efforts to secure compliance with a role, especially when they assume a coercive form, may trigger resistance and defiance. A possible result is a tendency to disassociate oneself from the source of such intrusive intervention by severing the ties between the predicate role and other aspects of one’s self. These psychological speculations have a normative side as well. By employing coercion, law implicitly stakes out a position about the proper attitude to its demands. Coercion is a paradigm external motivation, which avowedly sidesteps the agent’s own will and ignores her autonomy.16 When tied to a role, coercion not only induces but underwrites distance from the role. These potential effects of juridification on the construction of self have their counterpart on the collective level in converting communities into organizations.

 
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