Law as Logic

Abstract

The work of a triumvirate of social thinkers – Adam Ferguson, Bruno Latour and Roger Friedland – is used to argue for the ontological centrality of law to the construction of human societies. Confirming its place as a central institutional order supports the contention by Roger Friedland that the law has a set of distinctive practices animated by the substance ‘justice’. Together, these practices constitute a distinctive logic that can impact on organizations not just by specifying their form but also by providing dominant logics. Such logics can vary dependent on the historical development of particular societies, as illustrated by the distinction between civil and common law systems. Law enters into forms of relation with other logics and is conditioned by relations of class and power. The implications for students of organizations are drawn out.

The worldhood of the world is composed of a configuration of institutional logics . . . justice through juridical practices that classify actions according to the binary of legal and illegal. (Friedland, 2018, p. 1393)

Law is of great importance to organizations and organization theory. It sets the boundaries for many types of organization, distinguishing them from each other and delimiting their scope. It reaches into organizations, specifying particular positions and, on occasion, specific practices that must be followed. Law is both a constraining condition of organizational existence and itself a melange of organizational types. This article considers the place of law as a central societal logic. It has been stimulated, in part, by an absence. That absence is the lack of consideration of the law in the account given by Thornton et al. (2012) of the nature of institutional logics. Their account is founded in large measure on the discussion of phenomena in the organizational literature. However, a return to first principles suggest that law has an internal logic, one that conditions its relations to other logics and to organizational forms.

Rather than seeing law, therefore, as an epiphenomenon of more primary logics, such as the political or the economic, vital though the relations with both are, this article seeks to examine the law as a distinctive societal institution in its own right. It does so through consideration of a triumvirate of social thinkers: Adam Feguson, Bruno Latour and Roger Friedland. From Ferguson and Latour we take the ontological centrality of the law as a feature of human social life. Consideration of their distinctive thoughts on the vital place of the law in the growth of civil society leads to further elucidation of the arguments of Roger Friedland and the application of his pairing of substance and practices to the law, as in the epigram to this article. Friedland’s work takes the discussion from a more macro and abstract level to the consideration of material practices. Those practices draw our attention to the very different ways in which an abstract logic of law can be instantiated in historically grounded contexts. This is illustrated by a contrast between civil and common law legal systems. The implications of the discussion for organizational analysis are then suggested.

From Eighteenth-Century Edinburgh to Twenty-First-Century Paris: Ferguson, Latour and Law

This section draws on two very different thinkers separated by over two hundred years but both, in their own ways, keen to emphasize the ontological centrality of the law to human affairs. We start by considering the contribution of Ferguson, before looking at what Latour had to say.

Adam Ferguson (1723–1816) was one member of the triumvirate of thinkers who are taken to characterize the Scottish Enlightenment of the eighteenth century (Berry, 2015; Buchan, 2003; Sher, 1985/2015). Working in and around Edinburgh, Adam Smith in economics and David Hume in philosophy are the two best known of this group. Adam Ferguson, however, has been widely regarded as a founding figure of the discipline of sociology, a man whose thought had an influence on the work of Karl Marx (Smith, 2019). His work is most often cited by contemporary sociologists and political scientists in the context of the concept of ‘civil society’. Civil society is seen as relating to practices and organizations that stand in the gaps between state and economy. Ferguson’s best-known work is his 1767 Essay on the History of Civil Society (Ferguson, 1767/2003). However, Smith has shown that Ferguson’s concern was more with the process whereby society becomes more civil, that is, the process by which cruder forms of social interaction are replaced by politer forms of interaction. In this way he prefigured the ideas formulated by the sociologist Norbert Elias (2000) in his account of what he termed the ‘civilizing process’. For Feguson, a key part of the growth of civility was the development of law.

As Smith (2019, p. 153) puts it, ‘throughout his career Ferguson is clear and unambiguous: the order and stability of expectations that are the product of a system of public law are the mark of civilisation’. A system of laws emerges as a response to the need to settle disputes by means other than violence. The need to settle disputes arrives from the assumption that by nature human beings are sociable creatures who create circumstances in which such disputes can arise. As Smith (2019, p. 154) puts it, ‘his attention is focused on the underlying universalities of social life and how these necessarily lead to the functions of war leader and magistrate’.

For Ferguson, the establishment of laws to govern conduct was primary in the development of human societies, giving rise in turn to political institutions. Such institutions made possible economic development. As he observed,

Law is the treaty to which members of the same community have agreed, and under which the magistrate and the subject continue to enjoy their rights, and to maintain the peace of society. The desire of lucre is the great motive to injuries: law therefore has a principal reference to property. It would ascertain the different methods by which property may be acquired, as by prescription, conveyance, and succession; and it makes the necessary provisions for rendering the possession of property secure. (Ferguson, 1767/2003, p. 150)

In this way, Ferguson inverted the base–superstructure metaphor that vulgar followers of Marx would later champion. It was a more sophisticated Marxist, the British historian E. P. Thompson, who caused a degree of controversy among his Marxist peers by arguing that, as well as the law reflecting the concerns of the ruling elite,

The law may also be seen as ideology, or as particular rules and sanctions which stand in a definite and active relationship (often a field of conflict) to social norms; and, finally, it may be seen simply in terms of its own logic, rules and procedures – that is, simply as law. And it is not possible to conceive of any complex society without law. (Thompson, 1977, p. 260)

From a background in comparative anthropology, Bruno Latour (1947–2022) can be seen to lend support to Thompson’s contention through his major ethnographic study of one legal institution, the French Conseil d’Etat (Council of State). Latour is best known for his work on the practice of science, work that resulted in his formulation of actor–network theory (Latour, 1987). With its insistence on tracing the construction of networks of both human actors and technological ‘actants’, this approach has been broadly influential in a number of domains within social sciences, with particular impact on the field of science and technology studies. Latour himself has deplored the development of his ideas by adherents of social constructivism, that ‘debilitation of the soul’ as he termed it in The Making of Law (Latour, 2010, p. 275). As he said of his work in the field of science, it ‘was perceived by many scientists as a critique of scientific certainty – which it was – but also of reliable knowledge – which it most certainly was not’ (Latour, 2013, p. 5). Accordingly, he saw law as a central part of human society, one with its own ways of speaking, acting and making truth claims, one just as valid in its own way as the science he had previously studied. Crucially, for our purposes, he was adamant that law had always been a feature of human existence. As he argued in his work on Modes of Existence, work that was strongly influenced by his work on the law,

Unmistakably, law has its own separate place; it is recognized as a domain that can be isolated from the rest; it has its own force, as everyone would agree; and above all a crucial element for our inquiry – it has its own mode of veridiction, certainly different from that of Science, but universally acknowledged as capable of distinguishing truth from falsity in its own way. (Latour, 2013, pp. 358–359)

As well as support for the fundamental place of law in human affairs, Latour’s work also supplies some further pointers for our discussion. He notes that comparative anthropology has always been a feature of the study of law, one that rouses no strong objections. While science might claim universalizsing tendencies, ‘in law,’ he says, ‘there is something that lends itself to comparison without immediately arousing horror’ (Latour, 2010, p. 249). What he does suggest is that rather than comparing specific rules, that is the content of law, the focus needs instead to be on modes of legal reasoning. He notes of his own site of inquiry, the French Council of State that, although it is embedded in a civil law legal system (as we will explore in more detail below), it ‘bears more resemblance to the common law of the English-speaking world than to the law of the Civil Code’ (Latour, 2010, p. 169). What he is referring to here is the way that the members of the Council were drawing on precedents laid down by previous members, rather than turning to rules laid down in the codes that usually guide the reasoning of lawyers in a civil law system. That made it both unusual and, he argued, a useful site for the detailed ethnographic inquiry that he embarked upon. That inquiry was based on patient observation of the practices judges engaged in, leading him to the conclusion that the essence (his word) of law ‘does not lie in a definition but in a practice, a situated, material practice that ties a whole range of heterogeneous phenomena in a certain specific way’ (Latour, 2010, p. x). That essence might be articulated as the pursuit of justice, a contested notion discussed further below.

In this focus on situated practice there are some intriguing parallels between his work on the law and that of Roger Friedland, as hinted at in the epigram to this article. As we will see below, Friedland sees institutional logics, such as that constituting the law, as being composed of a substance revealed through practices. There are further parallels, in that Friedland sees the law as just one of several logics that make up society. Latour, too, sees society of being constituted by modes of existence, each with its own truth claims and ways of producing them. However, in what follows, having used Latour to establish, alongside Ferguson, that law does indeed merit our attention as scholars of organizations in society, I turn next to Friedland.

This is not the place to put the differences between Latour and Friedland to a ‘trial’ (to use a Latourian turn of phrase). Suffice it to say that while both propose an array of ways of being in society, each having relations with and impacts on each other, the ways in which these are formulated are very different. Latour’s formulations are altogether more diffuse and rest on his insistence on a ‘flat’ ontology. That is, his focus is on arrangements in the present and how arrangements such as networks of both human actors and non-human ‘actants’ produce effects. By contrast, a depth ontology considers that present social arrangements have depth in two senses. One is that social life emerges from, but is not reducible to, the capacities and constraints of embodied human beings. The second is that this emergent social life is conditioned by previous rounds of human activities that have given rise to social structures, such as organizations, that provide the context for the exercise of human agency (Archer, 1995). Friedland’s work, by contrast with Latour, is more comfortably aligned with the assumptions of Ferguson about the sociable nature of human beings and the need for institutional arrangements to overcome embodied capacities and weaknesses. A further consideration is that Latour’s focus is entirely on practices of veridiction, that is, how truth is constituted in each mode of existence through distinctive practices. It is not denied that these are central to the institutions that shape social life, but there are other practices. For example, studies of religious bodies have shown how important governance practices are, both in the development of organizational forms and in providing practices that can be transferred to other domains (Mutch, 2015). Further to these considerations, it is the case that Friedland’s work has had a considerable influence on others in the organizational theory space. While the application of his ideas has often been, I will argue, partial and misguided, it remains that concern with institutional logics has been significant. Hence I explore the application of Friedland’s ideas to law in more detail in the next section although also drawing on some of Latour’s detailed observations.

Roger Friedland and the Logic of Law

The approach to institutional logics essayed by Thornton et al. (2012) has its origins in the 1991 essay by Friedland and Alford. Thornton, Ocasio and Lounsbury suggest a number of logics – community, corporation, family, market, religion, state and profession – that have in turn been drawn on in the literature without questioning their basis (Besharov & Smith, 2014; Gümüsay et al., 2020; Lounsbury & Wang, 2019; York e al., 2018). However, Friedland has taken institutional logics in a quite different direction. Drawing on the importance of belief, he has stressed the passionate attachment to substances that means actions are taken ‘for the sake of’ rather than ‘in order to’ (Friedland, 2018). The attachment is to substances which ‘cannot be directly observed but are immanent in the practices that organize an institutional field, values never exhausted by those practices, practices premised on faith’ (Friedland, 2009, p. 61). Together substance and practices form institutional logics. I see such logics, in common with widespread practice in social theory (e.g. Archer, 1995), as existing at the societal level. I draw a distinction here between institutions and the process of institutionalization. I take the latter to be the process of practices becoming taken-for-granted and infused with value. It is this taken-for-granted quality that makes practices powerful carriers of substances, the import of which may not be apparent to actors who engage with them. I take the term ‘institutional order’ to refer to the accretion and sedimentation of practices, positions and organizations which occur over time and reinforce logics by making them the concrete circumstances in which actors find themselves involuntarily located and which shape and condition their actions.

For Friedland, as noted in the epigram, the substance for law is justice. Now, as Latour points out, jurists have spent much ink trying to define the nature of justice. The most well-known of such works is John Rawls’ (1971/1999) Theory of Justice, in which he argues for a notion of justice as fairness. Such fairness can take a number of forms. Notably there is substantive justice, the outcomes of a process, and procedural justice, the ways in which that outcome has been arrived at. Both of which, argues Rawls, to be seen as just should prompt a sense of fairness, in which the external distinguishing marks between those who seek justice (differential power relations based on money or status, or different identity claims) should not impact on either process or outcome. One of the challenges, points out Latour, is that lay perceptions of what constitutes justice can differ substantially from what the term means within the legal system itself. ‘We feel the weakness,’ he argues,

every time we despair at seeing that the ‘legally justified’ decision is not necessarily just, opportune, true, useful, effective; every time the court condemns an accused party but the aggrieved party has still not been able to achieve ‘closure’; every time indemnities have been awarded but doubts still remain about the exact responsibilities of the respective parties. (Latour, 2013, p. 361)

It is also the case that other conceptions of what constitutes ‘justice’ might be available. For organizational actors, ‘certainty’ or ‘consistency’ might also be matters of considerable import. However, such debates, while certainly of great importance, are not germane to the way in which the practices that constitute a legal logic are motivated. For Friedland the substance is never to be reached but is immanent in the practices that it has motivated. Latour demonstrates that it is a particular set of practices that constitute justice as lawyers conceive of it. He observed a progressive articulation of the facts of a case with texts drawn from the law in a process characterized by ‘this slowness, this heaviness and these continuous hesitations’ that ‘precisely form the primary material of justice’ (Latour, 2013, p. 91).

Justice in this sense derives from a process of dispute resolution. The law, I argue, evolves from a desire to resolve the disputes which necessarily arise from human interaction. As such, it can take very different forms in different times and places. Whiteman (2009), for example, draws a distinction between retributive forms of justice that she suggests characterize much of Western law and more restorative and reparative forms that can be found in indigenous conceptions. A critique of institutionalist theorizing is that it imposes categories derived from Western experience on parts of the world to which they do not apply. In the study of religion, for example, Asad (1993) has argued that religion as a concept has Christian roots, using Christian forms as a yardstick by which to measure other belief systems without critiquing its own assumptions. Others argue that while there is much merit to this critique, the category still has value provided that ‘its existence should be explainable with reference to general capacities of our species, activated under generally specifiable conditions’ (Whitehouse, 2004, p. 2).

It is important to note the level of abstraction that is being proposed here. When Friedland and Alford outlined a number of central institutions – ‘capitalist market, bureaucratic state, democracy, nuclear family, and Christian religion’ – in their original essay they were quite clear that these were ‘the central institutions of the contemporary capitalist West’ (my emphasis) (Friedland & Alford, 1991, p. 232). That does not mean that these institutions are to be found in all conjunctures of time and space. Rather, the combination of substance and practices provides us with criteria for identifying the constellations of institutional orders that pertain at any particular conjuncture and a guide to elaborating their composition. As Friedland suggest, these orders come into relationship with each other. For the law, the two most significant orders are those of politics and the economy. As we noted, for Ferguson, political institutions emerged from the foundation provided by the law, providing an alternative means for dispute resolution. However, it is entirely possible for the law to become subordinate to the demands of politics. In China, for example, the state-sponsored top-down process of environmental regulation was adversely affected as ‘since local courts were subject to the control of local governments and local Party committees, the legal system was ineffective in the pursuit of environmental laws’ (Child et al., 2007, p. 1029). However, even when states decide to pursue a particular course, their efforts can be frustrated to a degree by the accumulated practices of the law. In their account of legislative attempts to construct a mortgage market in Hungary, Pellandini-Simányi and Vargha (2019) trace the fate of statutes as they hit the barrier of what some perceived as legal bureaucracy. However, this was not a matter of resistance for its own sake. Rather,

When talking about guaranteeing the safety of the bond and the imperative of complying with EU regulation and Hungarian law, bureaucrats are not talking about abstract regulatory styles or traditions. They talk about the concrete ‘plumbing’ problem of connecting one piece of legislation to the rest that is already in place or will be in place. For these technicians, the legal system was not a pliable tool of political-economic projects. They experienced little personal agency. Rather, they saw themselves as conveying the demands of this interconnected web of laws. Rule-following was less a personal attribute of Ministry employees than an imperative to safeguard legal consistency. (Pellandini-Simányi & Vargha, 2019, p. 9)

What this points to, the authors argue, is the need to consider law as not a simple mirror of economic or political imperatives, but rather as a system ‘in itself’ possessing a complex ‘infrastructure’. This sense of law as possessing a logic of its own is also present in the account presented by Jennings et al. of the nature of water rights legislation in British Columbia over a 90-year period. Institutional theorists, they argue, ‘have not examined the evolution of law as an institution in its own right’ (Jennings et al., 2005, p. 621). Their analysis indicates how much of the impetus for legislative change in their area of study came from within the legal system. What such work suggests is the need to consider the nature of legal systems. As Friedland and Alford (1991, pp. 248–249) argued in their foundational chapter, ‘institutional logics are symbolically grounded, organizationally structured, politically defended, and technically and materially constrained, and hence have specific historical limits’. Understanding how the law plays out in different contexts of time and space means that we have to pay attention to historical development. This means it is necessary to be clear about the particular form of the law that pertains, and the notion of legal systems helps in this endeavour.

At this point it is useful to consider some broad divisions of the law. That which is often most visible is that between criminal and civil law. Criminal law is concerned with those offences against the person or property that are considered to be injurious to society and are prosecuted by state bodies. By contrast, the civil law is concerned with disputes between persons or organizations over matters such as the interpretation of contracts. It follows that civil law might well be more consequential for organizational life than the more visible criminal law. To these two key divisions we can add the field of public or administrative law, the field examined by Latour, which is concerned with relations between the governed and state bodies. We should also note that there are sub-divisions with these broad divisions. For example, in a study of drug courts in ‘Stone City’, themselves hybrid bodies operating between law and other public bodies such as social work, two sets of actors drew on aspects of legal logics (McPherson & Sauder, 2013). Lawyers tended to draw on a logic of criminal punishment in contrast to probation officers who drew on notions of rehabilitation. Both, however, considered themselves to be operating with logics deriving from the law, in contrast to other actors who drew on logics of community accountability or efficiency. We will see in the discussion that follows that concrete analysis of the law in action requires us to take account of such sub-divisions.

Civil and Common Law Systems

As alluded to above, Latour in a number of places shows that he is cognizant of the differences between the civil law that characterizes much of mainland Europe and the common law that obtains in the Anglo-American sphere of influence. Table 1 indicates some of the differences between these two systems. These contrasts are drawn from both the organization studies and the comparative law literature and are intended as an indicative guide to differences only. Some of the major differences at a systems level are discussed first, before turning in the next section to some more detailed comparisons of practices.

Table 1.

Indicative contrasts between common and civil law systems.

Attribute	Common law	Civil law
Source of laws	Precedent	Code
Mode of procedure	Adversarial	Inquisitorial
Form of contracts	Dense, multiple clauses	Sparse, reliance on codes
Forms of argument	Oral, judge as umpire	Textual, judge as inquisitor
Forms of decisions	Oral	Written

The civil law, with its emphasis on codification, stems from the Roman efforts to systematize legal practices proceeding from first principles; as Latour notes, somewhat tongue in cheek, ‘Cicero could take his place in the French Council of State or in the Luxembourg Tribunal without having to do anything except learn French!’ (Latour, 2013, p. 366). By contrast, the common law emerged from a process of judge-made law. Ferguson had more direct experience of the differences between the two systems, living as he did in a relatively recent polity formed in 1707 from two countries with very different legal systems. His native Scotland, thanks to extensive ties with mainland Europe, was a Roman law jurisdiction, noted for early attempts to systematize the law. By contrast, south of the border, England’s legal system was rather more emergent in nature. Ferguson expressed the relationship of the two legal systems as follows:

Rome and England, under their mixed governments, the one inclining to democracy, and the other to monarchy, have proved the great legislators among nations. The first has left the foundation, and great part of the superstructure of its civil code, to the continent of Europe: The other, in its island, has carried the authority and government of law to a point of perfection, which they never before attained in the history of mankind. (Ferguson, 1767/2003, p. 159)

Accordingly, the contrast between the two systems is a useful exercise in examining the specificity of the outplaying of a legal logic in different settings of time and space.

A cautionary note is necessary before we examine these contrasts in a little more detail. That these are the systems most examined in the literature owes much to their relationship to systems of imperialism. Their spread across the world was carried by the expansion of Western economic and military power across the globe, displacing other systems in their wake. For some, the very category of law is a colonial one. Bothello et al. (2019, p. 1506) argue that in the Confucian tradition in China ‘the need for laws is often interpreted as a failure of that society’s moral standards’. Laws imported from very different traditions were used in the service of the imperialist project to deprive indigenous communities of resources (Banerjee, 2003). However, Whiteman (2009) draws on some aspects of what she terms ‘traditional law’ to point out that indigenous peoples had their own systems of dispute resolution in the pursuit of justice, even if ideas of reaching justice diverged considerably from Western approaches. Similarly, Jewish lawyers in the emerging state of Israel consciously drew on traditions of Hebrew law in opposition to the colonial use of English common law (Montgomery & Oliver, 2007). However, it remains the case that most of the discussions in organization studies that take the different nature of legal systems into account are based on the contrast between common and civil law.

In part this focus is because of the spread of both civil and common law systems across the globe thanks to European conquest and settlement. It is also because of the clash, whether explicitly recognized or not, between the common law traditions of the United States borne by its corporations in the post war economic settlement and other traditions. Lubatkin et al. (2005) point to the common law assumptions that lay behind discussions of corporate governance, ones that fail to hold in the very different legal traditions of Sweden and France. The contrast between the two traditions is nicely summarized in the context of contract law by Bachmann and Inkpen (2011, p. 290) and its impact on organizational trust:

[in] civil law, [. . .] the legal system builds on a powerful rule-based legal code. Regulation by means of legal norms features strongly in this type of business environment, which is common in continental Europe and large parts of Asia. By contrast, common law, which is widespread in English-speaking countries, is based on sometimes difficult to find precedents and not on a set of clearly stated rules. It is thus relatively weak as an institution and contractors understandably fall back on their own – individually available – means to enforce or protect their interests whereby the contract (as such) can be an important tool. Common law systems usually leave more freedom as well as burden to the contractors to specify the nature of their relationship through their idiosyncratic contracts. The latter, however, is not necessarily very conducive to trust building, especially if the stronger side of two unequal partners is determined to maximize its interests. Civil law fosters the development of institutional-based trust as, if in doubt, the legal code has priority over idiosyncratic contract clauses, and thus often leads to inter-organizational relationships that are much more standardized and stable than under common law.

These different legal traditions are also embedded in and in turn contribute to distinctive cultural traditions, shaped by processes of education and socialization. They are the more powerful for containing taken-for-granted assumptions about how societies might be organized. In a contrast between the Netherlands, a civil law society, and the common law system of the United States, van Waarden (2001) shows how the legal environment mirrors and constitutes the attitudes to risk in each. In a risk-averse society Dutch law reflects in the stability of its codes a greater degree of certainty than that in the US, where contract law and a culture of litigation both facilitates freedom of action and promotes greater uncertainty, reflecting a greater openness to risk. Civil law traditions with their focus on the specification of and adherence to rules foster the classic bureaucratic mentality to be seen in public administration. When Kornberger et al. (2019, p. 249), refer to ‘legalistic administrative traditions’ in the context of Austrian public administration, they are referring to a very different tradition to that in the US. Here there is also a focus on the specification of rules but, as van Waarden (2001) points out, these are undercut by an activist focus on litigation. The making of law through case law and precedent is in turn shaped by the sheer number of lawyers in the population in contrast to other economies.

Of course, such contrasts are at a broad scale. Morgan and Quack provide a note of caution. ‘By focusing on the legal profession as a whole,’ they argue, ‘. . ., this literature [on comparative legal traditions] has tended to overestimate the coherence of professional milieus within, and their distinctiveness between, countries’ (Morgan & Quack, 2005, p. 1767). In their case, their argument is that corporate lawyers in both Germany and the United Kingdom were ‘characterized by significant similarities in terms of the entrepreneurial, commercial and international orientations’ (Morgan & Quack, 2005, p. 1767). Such similarities encouraged the growth of organizational hybrids that spanned the differences in host legal systems. However, while this is a useful reminder about the complexities of the ways in which legal affairs might be organized, it is important to note that this is a very distinctive and specialized part of the law. Other sources indicate the persistence of the distinctions between the two legal systems, distinctions reinforced by the adherence of lawyers to the legal systems that they had been trained in.

For example, Micelotta and Washington (2013, p. 1155) show how the Italian legal profession resisted attempts to bring in change, deploring ‘the abrogation of practices such as minimum and maximum fees, because it would have triggered price negotiations between professionals and clients’. The strength of such resistance meant that attempts by English law firms to establish a strong position in Italy were effectively stymied by the practices insisted on by the Italian legal profession, such as educational requirements. As Muzio and Faulconbridge (2013, p. 913) point out, ‘many of the practices deployed by English global law firms to develop client relationships were viewed as illegitimate and unprofessional in Italy’. In turn, such practices, they argue, can be related to the distinctive nature of the broader legal tradition. In this way, Muzio and Faulconbridge (2013) show the enduring impact of the civil law tradition on the fate of common law firms seeking to move into the Italian market. While niche markets and organizations might span different legal systems, such systems seem to retain their power, not least in shaping distinctive reasoning traditions, a point to which we will return. What the literature reviewed seems to provide is a rich set of insights that argue for law as a distinctive institutional logic in its own right.

One objection to this argument might be the increasing influence of legislation deriving from the political sphere in shaping the law. Latour notes the growing importance in the French context of European law, something that presents new challenges to the judges of the Council of State. Legislation is undoubtedly becoming more important as a source of rules in both systems, but, as we have seen, there are mediating influences between the desires of politicians and the turning of those desires into legal texts that will ‘stick’. Indeed, the Council of State examined by Latour has two distinctive sections, each with its own relation to politics. One section reviews legislation, seeking to give guidance on its conformity with the existing corpus of legal precedent. The other takes on litigation against the state, seeking to resolve matters on behalf of the aggrieved citizen. It is noticeable, says Latour, that while the membership of the Council is a fluctuating one, with former politicians serving alongside career lawyers, the Council speaks with a collective voice in phrases like ‘you have admitted’:

as though he were addressing an immense, ever-present body composed of a large number of members who have long since disappeared, leaving only a few hallowed names, a body that is said to have ‘thought’, ‘considered’, ‘wanted’, ‘decided’, and ‘judged’ something. (Latour, 2010, p. 15)

Latour indicates that while the composition of the body and the impact of politics on it might suggest that the law is a simple epiphenomenon of political power, this would be an oversight and it is in the constellation of practices that one finds the law for itself.

Systems and Practices Compared

As we have noted, civil and common law have spawned distinctive practices of reasoning that give different content to positions and practices, such as courts and judges, that attract the same labels. In a careful examination of evolving legal practices in Anglo-German law firms, Smets et al. (2012) draw attention to differences in the drawing up of contracts. Contracts drawn up by German lawyers were sparse in form, resting on the specification of standard terms in legal codes. By contrast, English lawyers produced dense contracts with many clauses. What these conflicts initially led to was mutual incomprehension, but emergent from this over time were hybrid practices of contract formulation that sought to blend the two versions of legal logic. Whether such changes in organizational practice led to subsequent change in the respective legal systems was not the concern of their article but one would suggest that the fundamental principles of each legal system remained untouched. This reminds us to be careful to distinguish between practice and institutional change, the latter happening in much slower and more incremental fashion; ‘it is entirely true of law,’ observes Latour (2010, p. 189) ‘that “the more it changes, the more it stays the same”’.

Of particular importance here is the distinction between substantive and procedural law. While the increasing importance of legislation in both common law and civil law jurisdictions has led to a level of convergence in formal prescriptions, major differences persist in the procedures that each system rests on. How law is carried out is therefore often more important than what law formally is. The distinction is often characterized as one between an adversarial approach in the common law versus an inquisitorial one in civil law traditions (as Latour notes, in citing the procedures of the French Council of State as anomalous (Latour, 2010, p. 25)). An inquisitorial approach is one which is judge-led, in which it is down to them, often by assessing written submissions, to decide on the strength of a case. By contrast, in an adversarial system the judge is more of a neutral umpire, deciding on the contending merits of a case as advocated for and against by legal representatives. When Kuhn (2009, p. 685), for example, argues that ‘most Western conceptions of law are based on the adversary system, the simple notion that parties in legal disputes argue vociferously both for their own case and against the other side’ one senses that this is a view profoundly coloured by his research site, a large US law firm. In a common law system, especially one with the prevalence and status of lawyers characteristic of the US (van Waarden, 2001), arguments are played out between the legal representatives of the contending parties, with judges acting as impartial mediators upholding the ‘rules of the game’. By contrast, in an inquisitorial system judges are an activist part of the search for the facts of the matter, especially in criminal proceedings.

These differences give rise to significantly different practices. Thus, Grossfeld contrasts the style of judgments in the contending systems.

In England, the higher courts traditionally give their opinions orally in a highly personal way. Even today, opinions in the House of Lords are called ‘speeches’. In France, judges produce short and abstract written versions, ‘more geometrico’. In Germany, they elaborate long written ‘dissertations’ in the particular grammatical style of the Latin-language tradition and, thus, quite often in bad German. (Grossfeld, 2013, p. 160)

Latour emphasizes the importance of writing and texts in his observations of how the judges of the Council of State reached their decisions. The act of writing was so important, he noted, that he paid careful attention to ‘always respect the layout, the typography, the tables, the space between the lines, the paragraphs’ (Latour, 2010, p. 9). The focus on orality in the common law tradition is matched by the sense of drama in the courtroom. As the English lawyer Jeremy Lever (1999, p. 299) observed, in the common law tradition ‘the judge or judges come in, the house lights are dimmed, the curtain goes up and the audience settles down to watch the play, though it may react from time to time to ensure that the rules governing the drama are observed and to clarify aspects of the action’. By contrast, in civil law traditions the court hearing is just one part of an overall process of discovery. ‘On the Continent,’ notes Grossfeld, ‘we see a continuing exchange of written texts, punctuated whenever necessary by proof-taking hearings, but with no dramatic climax’ (Grossfeld, 2013, p. 176). Different legal systems, thus, generate distinctive practices and it is in those practices that the substance of the logic at the heart of each is manifested. We have to look beyond formal content, that is, in each of our logics to observe the mechanisms at work. As Latour noted in his case ‘in the procedures of the Council of State, especially when they are contrasted with the scientific mode of attachment, one finds an accumulation of micro-procedures which manage to produce detachment and to constantly reactivate doubt’ (Latour, 2010, p. 212). It is such doubt, he argues, that produces justice.

Logics, as well, stand in relation to the other institutional orders that constitute society at any particular time. In some cases this forms a complementary relationship. In Scotland, for example, one can trace a mutually supportive relationship between religion, law and education (Mutch, 2015). Scots law drew heavily on a Roman law tradition, in which there was, by European standards, an early attempt to codify legal rules and promulgate these in written form. This in turn rested on widespread literacy in an educational system that featured the same focus on starting from first principles that characterized both the law and the particular religious form of the Church of Scotland. In turn, that church both monitored and encouraged the growth of a basic education system and a higher education system. Such relationships take embodied form in the elites that share similar educational backgrounds, but the relationships are more than this. Rather, they form part of the cultural inheritance of particular societies, developed over long periods of time and taken for granted.

One illuminating example of the relationship between the law and broader cultural norms can be seen in the criminal law relating to insult and the preservation of personal honour in Germany, where James Whitman points out that

The criminal law of insult purports to protect the ‘personal honour’ of all Germans, not just of minorities and it belongs to a lively, and sometimes comical, everyday culture in which insulted Germans are convinced that they have been victims of a criminal offence. The ideas of ‘respect’ and ‘personal honour’ that inform the current law and culture of insult are, in turn, deeply rooted in German society and in German social history. In particular, the law of insult, as it exists today, has aristocratic sources. Germans involved in insult litigation display a kind of touchy sense of their own ‘honour’ that is very much reminiscent of the old aristocratic duellists’ world of the eighteenth and nineteenth centuries. (Whitman, 2013, p. 332)

In his comparative study of nineteenth-century woollen mills in Germany and England, Biernacki outlines the construction of factory codes governing German workplaces, their ratification by local police forces and the willingness and ability of German workers to take legal action. Biernacki (1995, p. 162) discusses in some detail the case of ‘Herr K’, a department head in a silk mill who took legal action when part of his sphere of supervision was hived off into a separate department. In other cases, ‘German overlookers also charged their underlings in court with having affronted them’ (Biernacki, 1995, p. 191). In other words, supervisors in Germany were drawing on broader cultural norms that shaped legal resources that provided the opportunity for legal action in a way that was not open to their English equivalents. In both Prussia and France civil law systems rested on the codification of laws based on principles, the prime example that Biernacki cites being the Code Napoleon. The focus on codification and systematization that led Bourdieu and Passeron (1977, p. 148) to refer to ‘the typically French religion of classification’ is an example of an enduring impact of a specific legal tradition, coupled with and in relation to other institutional orders.

The notion that law constitutes a distinctive institutional logic, manifest in distinctive practices carried out in the name of the substance ‘justice’ is one that is supported by the careful tracing by Heimer (1999) of the intersection between legal, medical and familial institutions in the practice of neonatal intensive care. She shows that one needs to examine both higher-level institutional arrangements and the microprocesses by which they come to influence decisions. Thus ‘the impact of law on medical decisionmaking varies with whether legal actors have learned how to be present when decisions are to be made, make legal issues into organizational problems, introduce choice points that require action, and alter the possibility space of eligible solutions’ (Heimer, 1999, p. 17). Heimer’s article is cited approvingly by Thornton et al. (2012, p. 135) but neither the medical nor the legal logics (unlike the family) are considered as candidates for their inter-institutional system. The evidence from the material reviewed here, coupled with the alternative perspective on logics drawn from Friedland’s work suggests, I would argue, that this is a mistake and that law deserves to be taken more seriously.

Implications

This article began by noticing an absence. The set of institutional logics proposed by Thornton, Ocasio and Lounsbury in their 2012 book failed to include the law as a key institution. The work of a set of divergent theorists, Adam Ferguson, Roger Friedland and Bruno Latour, has, despite their different emphases, placed the law as a fundamental part of human social life. In turn, establishing the place of the law as a basic social institution raises doubts about some of the other institutional logics proposed by Thornton et al. Chief among these is the status of professionalism as a distinct institutional logic. Law is one of the classical ideal types, along with medicine and religion, for the notion of professionalism, defined by Friedson (2001, p. 127) as possessing a number of attributes: specialized work grounded in a body of knowledge; exclusive jurisdiction over credentials and occupational status; formal training programmes controlled by an occupational body; and an ideology that stresses commitment to wider goods. For Friedson (2001, p. 179), rather than being an institutional logic, ‘professionalism is conceived of as one of three logically distinct methods of organizing and controlling’ work (the others being the free market and the bureaucratic firm). Professionalism should therefore be seen as a cross-cutting organizing logic, one which takes different inflections, as we have seen, in the different instantiations of an institution such as the law.

The arguments discussed so far have been largely at an abstract, macro level. What has the potential to bring these into more concrete organizational analyses is the formulation, drawing on Friedland (but also stressed by Latour), of institutional logics as composed of practices, practices engaged in for the sake of an institutional good (a substance in Friedland’s terms). A focus on practices can touch on the relationship between different institutional logics, notably on the transfer of practices between them. For example, Lauren Edelman, Christopher Uggen and Howard Erlanger, drawing on the example of internal grievance procedures put in place by organizations in the US as a response to 1964 Civil Rights Act and other equal opportunities legislation, suggest that organizations strive to put in place

appropriate solutions that are themselves modeled after the public legal order. Courts, in turn, recognize and legitimate organizational structures that mimic the legal form, thus conferring legal and market benefits upon organizational structures that began as gestures of compliance. (Edelman et al., 1999, p. 406)

More detail for this process of transfer has been traced for the institution of religion in one historically grounded investigation. In the Church of Scotland, from its founding in the sixteenth century and flowering in the eighteenth century, there developed a set of governance practices that placed considerable stress on accountability. While motivated by ultimate values of faith, these practices became available for mobilization in secular contexts. To be more specific, the practices were of two mutually reinforcing characters. One was the keeping of detailed books of account, needed to support the church’s focus on support for the poor, as well as for its own ongoing need for financial resources. In parallel with this focus on accounting data was a commitment to basic education, motivated by the wish that all believers could have direct access to sacred texts. The educational system that was developed under church control came to feature a strong emphasis on bookkeeping. The combination of basic numerical competence and the stress on accounting within church governance saw Scotland become the market leader in the production of accounting texts and led to its prime role in the development of an accounting profession (Mutch, 2016). It is this transfer of practices from one logic into another that might also offer potential for examining the impact of the law on organizations.

In order to do this, the third strand of the argument that has been presented is the need to be specific about the nature of the legal logic that organizations face in any given context. From a rather abstract macro argument about the nature of the law, the focus turns to a meso-level focus on the way in which that logic is enacted in specific historically grounded contexts. It is here that we recall Latour’s argument that ‘One can always say: You proceed like that in your country, oh, that’s so interesting; in our country we proceed like this. What is true in the rules of inheritance or penal law would not apply to gravity.’ In the current article, the key contrast that has been drawn has been that between the common law systems that characterize those jurisdictions influenced by English practices and the civil law traditions that are to be found in much of Europe. The contrasts that have been drawn have been taken from the literature both on organizations and comparative law. It is recognized that these contrasts can only be indicative in nature, although the contrast between judge-made law drawing on precedents in common law and the codification of rules in civil law systems is a powerful one. Much more could be done to draw out the contrasts further, as well as to bring in consideration of other legal systems. However, the point here was not to provide a comprehensive account but to point to the necessity to be specific about the law and its practices in any given organizational context. As well as directing our attention to the transfer of specific practices, it could be argued that a key influence on organizational activity is the broader set of assumptions about how social life is to be structured. So it is that Bourdieu could point to the emphasis on codification in French life, embodied in civil law traditions and manifested in, for example, national charts of accounts for organizations to follow.

Conclusion

This article has sought to argue that organizational scholars need to take the law seriously as a key influence on organizational life. This need not be a direct impact but rather one that forms the taken-for-granted context in which organizational life unfolds. Recognizing law as a central institutional logic directs our attention to the possibility for practices to be transferred from the legal to the organizational domain (and vice versa). A focus on practices, drawing on Friedland, can suggest new avenues for organizational inquiry.