What social sciences can tell about the production of legal standards?: The Case of the Standard of Prudence

Legal standards are strange objects: both legal instruments, referring to the legal normativity, and socio-professional norms, referring to the collective elaboration of commonly accepted rules. As legal instruments, they have been studied by law scholars (Roscoe Pound has founded a long tradition for academic contributions). The point of my contribution is to explore other positions of research, from institutional economics, economic sociology, political science, able to develop useful insights for understanding the production of legal standards. I propose to show the heuristic of using, simultaneously, several of these positions for studying one standard. In order to illustrate this heuristic, my contribution is based on a particular standard, the fiduciary standard of prudence imposed to trustees in the US.By contrast with the legal study which is interested by the intrinsic and general features and “qualities” of the legal standard, these approaches do not focus on the substance but on the processes that generate it : on the particular economic situations and social process that “produce” a standard and, reciprocally, on the situations the standard produces. Social sciences offer four principles for grasping these situations: 1) analytic (used by mainstream economics and structuralism) which consists in stylizing economic interactions; 2) genetic (used by institutional economics, historical sociology, political science) which consists in tracing the history of these economic interactions; 3) pragmatic (used by these disciplines) which focuses on reciprocity of the interactions in general; 4) interactionist which focuses on the interactions in particular legal cases