Normative Analysis

A normative-analysis approach to the sociology of law may sound very familiar to the legal scholar, but what we designate as "normative analysis" must not be confused with the traditional "doctrinal" analysis of the legal scholar or with the philosophical sense of an assertion of a value judgment. This approach entails an analysis of legal norms in relation to their underlying values and to the social units or status groupings that are the objects of legal norms. In sociological terms, two levels of analysis are involved: the analysis of some facet of the "culture" of a society and the analysis of some facet of the "social organization" of a society.

With the aid of this approach it would in principle appear possible to discover how legal norms are reinterpreted and transformed over time. Such an analysis requires, at the very least, an inquiry into (a) changes in the hierarchy of values in a society as reflected in the legal system and (b) changes in power and prestige of the social units or statuses affected by the legal norms. As these two types of changes occur, we would expect "legal personnel" -- whether judges, legislators, or others-to reevaluate and restructure legal norms.

Throughout much of the history of labor law in the United States the value rationale of court decisions was in terms of individualism as expressed in the doctrine of freedom of contract. The competing values of equality and pluralism occupied a position subordinate to that of individualism; hence freedom of association was accorded less importance than freedom of contract. With the growth of trade unionism there has been a gradual increase in the power and prestige of workers. This change in status of workers vis-U+00EO-vis employers was registered in the legal system through the enactment of legislation institutionalizing the right of workers to organize for collective bargaining, thus elevating the values underlying freedom of association above those underlying freedom of contract. As the right to organize collectively is established, it, in turn, leads to conflicts of interest between the trade union and its members, on the one hand, and the trade union and the "public," on the other. These conflicts, as discerned by judges, officials of administrative agencies, and labor arbitrators, result in a subsequent delimitation of the rights of trade unions. Blumrosen's analysis of the process whereby "rights" and "interests" come into conflict has implications for empirical research and provides the raw materials for the development of theoretical propositions about the nature of conflict in general and conflict in labor-management relations in particular.