THE EMERGENCE OF NEW TYPES OF NORMS[1]
Pauline Westerman
1. Introduction
An important part of the legal theoretical literature deals with the nature of rules, in particular with mandatory rules of the prohibitive type. The exemplar of such rules is the classical `no vehicle in the park' rule, which figures in virtually every serious work on legal interpretation, (although it may be occasionally supplanted by `no dogs allowed').[2]
It is not my intention to dismiss these examples as misleading. The deep and thoughtful analyses that are provoked by analysis of these simple rules are also helpful in understanding the more complicated legal rules that figure in lawyer's everyday life. But I want to draw attention to the fact that next to the classical mandatory rule, new kinds of norms are emerging and are produced in massive quantities by both the European and the national legislators of European countries. These new types of norms haven't been analysed so far but have a quite dramatic effect on both political debate and legal decision-making.
There are two types of such norms. The first of these I shall call `aspirational norms'. They directly prescribe the achievement of goals. These norms require us to ensure `safe working-conditions', to further `the re-integration of handicapped people in the labour-market' or to ensure that the emission of toxics is `as low as reasonably achievable' (the so-called ALARA-norm). The second type prescribes us to obtain results. I shall call them, for want of a better term, `result prescribing norms' (RP-norms). Examples of RP-norms are the detailed norms prescribing the size and position of furniture in day-care centres, the desired length of bananas or the exact temperature at which vegetables should be stored. RP-norms may also prescribe us to obtain certificates, or to produce protocols.
As I shall argue, these new types of norms belong together. Both are outcome-oriented and can be seen as the legal form of output-management.[3] I shall first try to point out in which sense they deviate from the classical rule. After that, I turn to the consequences of these differences for the ways in which these rules shape both our private and public life.
1. Aspirational norms
Among the many rules that are produced yearly by the national and European legislators there are quite a few norms that directly admonish the citizen to pursue aims and ends that are thought to be desirable in the eyes of the government and which are promoted in the name of general interest. These norms do not precribe specific acts to be performed, but advertise the aims in a direct manner. They urge us to maximize safety or to decrease pollution, they require us to further transparency or good corporate governance.
In order to understand the nature of such aspirational norms it is worthwhile to recall the distinction, made by Schauer in his treatment of the paradigmatic mandatory rule, between a rule and its underlying aim or aims.[4] The rule prescribes or prohibits a specified act in the expectation that general adoption of that rule will lead to the achievement of the desired aim. Schauer calls these rules `instantiations' of the underlying aims. Instantiations refer to concrete actions by means of which the desired aims are thought to be achieved.
There may be different instantiations of the same aim. The aim `silence' can be instantiated by the rule prohibiting dogs, but also by a prohibition of mobile telephones. More importantly: there may also be different aims underlying the same rule/instantiation. Dogs may be banned because they are thought to be noisy and unhygienic. Silence and hygiene then both figure as underlying aims. We call these aims justificatory because they can be mentioned as justifications of the rule.
Whereas the classical paradigmatic rule can be seen as an instantiation of one or more justificatory aims, this is not possible with the aspirational norm. These norms do not indicate a concrete manner by means of which one can arrive at the desired aim but directly prescribe us to achieve that desired aim. Whereas in the case of the classical rule there is always a certain distance between instantiation and justification, such a distance is absent with aspirational norms. Here instantiations and aims coincide to such a point that the distinction can no longer be made. The rule is its own justification. It therefore refers to only one aim.
In practice this means that the norm-addressee is obliged to fulfil the prescribed aim but can decide for himself how he can arrive at that aim. He is not obliged to follow a certain prescribed path; he is obliged to reach the destination and is free to follow the paths he may find.
Aspirational norms should not be identified with standards or general clauses. Standards and general clauses leave the rule intact and also the distance between rule and underlying justificatory aim. They merely allow or require a careful consideration of the underlying justificatory aims. The rule that only `reasonable and fair contracts' are valid requires the judge to do more than merely applying specified formal criteria: he is asked to use his own judgement as well. That means that he is supposed to jump between the level of rules-as-instantiations and the level of justificatory aims. He is required to judge whether it would not be reasonable (in the light of the underlying justificatory aims) to allow the quiet dog or to ban the noisy cat. Obviously, this cannot be done in the case of aspirational norms, for they directly prescribe the underlying aim.
It is difficult to operationalise aspirational norms. This is not because of the vagueness of terms. Many rules contain terms that are evaluative or normative and even those terms that at first sight seem to be clear and unproblematic, can move towards the problematic fringes of a rule as a result of technical, social or normative developments, unforeseen by the legislator. All these problems are well-known and we speak of interpretation rather than application in order to refer to these -inevitable- problems.
The problems posed by aspirational norms run deeper than that and have to do with the fact that the aims prescribed in the aspirational norms can be realised to a larger or to a lesser extent. The answer to the question whether someone complies with an aspirational norm cannot be phrased in a simple yes or no, but requires a gradual answer. That means that there is no fixed criterion that enables one to judge whether the norm was complied with or not. Neither is there any criterion for violation of the norm. There simply is no zero-line, below which conduct can be punished. This is apparent for instance in the case of the so-called ALARA-norm, the norm that the emission of toxics should be As Low As Reasonably Achievable. Judges struggled to operationalise this norm into a criterium that could guide them in sentencing the firms who had violated the norm. So another aspirational norm was added, which was that the Best Available Techniques had to be used. But again, nobody could tell what those techniques were (did `available' imply that they should be available to firms with a low budget as well?). Finally, judges themselves developed a kind of minimum norm as a zero-line which enabled them to do their job. They abandoned the aspirational norm and replaced it with a more concrete rule in order to make it possible to punish the firms who violated environmental norms.[5]
2. Result-prescribing norms
Aspirational norms, therefore, always tend to be translated into more precise rules. Sometimes, these concretisations are worked out by the national legislator, sometimes the aspirational norm is codified in national legislation, while it is concretised by lower organs, by the judiciary or by (groups of) norm-addressees into more precise rules.
The fact that aspirational norms should be made more concrete in order to be workable, does not mean that they are necessarily turned into rules of the classical paradigmatic type. These classical rules usually prescribe or prohibit acts. The rules that are designed as concretisations of aspirational norms are often -though not always- of a different type. They prescribe us to obtain results that can be conceived as concrete elements of those goals.
In the case of the ALARA-norm we see that the aspirational norm is translated into rules requiring specific technical devices to be installed. In the case of `reintegration of handicapped people in the labour-market', the rules typically demand a `protocol' for application procedures, or additional facilities that make the working-place accessible to handicapped people. These rules require the norm-addressee to make visible to what extent the norm-addressee has realised the aim as expressed by the underlying aspirational norm. The prescribed objects are not acts, but results as measurable and controllable units by means of which one's commitment to the underlying aims can be constantly assessed. That is why I call the norms that require them Result Prescribing (RP) norms.
Many of these required results are couched in numbers.[6] Judges should pronounce a certain amount of verdicts, policemen should solve a fixed amount of cases and orthopaedists should carry out a fixed amount of knee-operations (not less, but certainly not more).
The required results may also consist of other visible signs: one should think of the detailed RP-regulation concerning municipal playgrounds (which prescribe the rubber-tiles to measure 60x60 cm) or the prescribed format of municipal reports (requiring the subject dividing sheets to be placed before the subject and not after).[7]
A special variety of RP-norms requires rules as a sign that the norm-addressees take the aspirational norms seriously: they demand protocols or codes to be produced. The care of the Dutch nursing-homes has recently be found defective by a governmental committee. The most serious allegation was not that staff is underpaid and undereducated, but that they could not produce a `care-plan'. Nor did they have a `protocol' for dealing with dying inhabitants. In these cases the RP-norm can be regarded as a kind of meta-rule. It demands that a set of rules is drafted and presented as a visible sign that to a certain extent one complies with an aspirational norm.
There is probably no logical ground for a special distinction between the classical paradigmatic rule that prescribes acts and RP-norms. RP-norms also and necessarily refer to acts and persons. The production of results is an act carried out by (groups of) people who can be held accountable for failing to obtain the required results.[8] It might be possible, therefore, to reformulate these RP-norms into rules that look like classical rules: `There should be a protocol within a year after the establishment of the institution' can be translated into `The board should see to it that there is a protocol within a year after the establishment of the institution' or: `The director is obliged to bring about a protocol within a year after the establishment of the institution'.
But what is important here, is that such translations do not normally occur. Whereas many act-norms are in the process of being translated into RP-norms, one rarely comes across translations of RP-norms into act-norms. There is a tendency to focus on the required results and to suppress references to actors and acts.[9]
The suppression of elements in norms is not unusual. Many norms addressed to citizens suppress the extra conditions in the antecedent that are addressed to officials and many norms which are explicitly directed to officials are supposed to be understood as it were `by implication' by the citizens as well, although the implied norm is directed to another category of norm-addressees and although it expresses a different kind of obligation than the explicit norm. As the Swedish theoretician Frändberg remarked, there is a legal system in a `concentrated version' and a legal system in a `spelled out version'.[10]
The choice of the specific formulation (or the choice of suppressed elements) is often inspired by practical considerations. The choice to formulate many penal laws as duties imposed on the judge to apply a sanction is inspired by the wish to emphasize that sanction. The choice to formulate rules as only directed to citizens can be inspired by the wish to communicate that the intervention of authorities is not always needed.[11]
If we construe a spelled-out version of RP-norms there seem to be only two verbs that can be added: `to bring about' and `to see to it that'. The first formulation is directed to those who are obliged to produce the results, the second is directed to the many supervisory boards and controlling agencies. The concentrated version of RP-norms in which results are emphasized are meant to convey two messages at the same time. The first is that persons and/or institutions should produce the prescribed results; the second is that these results should be controlled and assessed.
Although `to produce' is an act, it is a special kind of act. The citizens who are required to produce results, are not addressed as actors, but as producers. They are not responsible for the consequences of their acts, but for their products. Those who fail to comply with RP-norms have the kind of product-liability of manufacturers. In other words, the emphasis on the production of results entails a shift towards strict liability. The actor is not liable for having failed to act in the prescribed way, but for not having obtained the result. Whether that failure can be attributed to his own fault or someone else's does not legally matter.[12]
3. Common features
One may be inclined to think that there is a vast difference between the abstract aspirational norm and the concrete RP-norm. Whereas the former leaves the citizen free to decide by himself how to arrive at the required end, RP-norms regulate in the minutest detail how these aims can be reached. The literature on legislative techniques is for a large part devoted to the choice between detailed regulation and aspirational norms and the wish to reduce overregulation tends to favour the latter.[13]