With sufficient reason it has been said, ‘like cows, social norms are easier to recognize than to define’ (Basu 1998). Social norms are the motley of informal, often unspoken rules, guides and standards of behavior the authority for which is vague if not diffuse, and the communal sanction for which can be swift and cutting. These nonlegal rules and obligations are followed and fulfilled in part because failure to do so brings upon the transgressor such social sanctions as induced feelings of guilt or shame, gossip, shunning, ostracism, and not infrequently, violence. In one sense, to be sure, their authority and power is that of ‘the group,’ i.e., relations between individuals, multiplicity of relations, and relations among those relations (cf. Caws 1984). And that group is phenomenologically captured with ‘the Look’ of ‘the Other,’ the Look symbolizing those sanctions for norm violation that entail a disparaging glance or expression of disapproval or disgust, often as a prelude to shunning, ostracism or violence. This is one reason effective norms typically have strong roots in the soil of small groups and communities, as sanctions are ready at hand and swiftly applied. And yet, as Philip Pettit argues, sanctions or rewards for norm noncompliance or compliance need not involve intentional expression through word or deed: ‘…[P]eople are rewarded by being thought well of, and punished by being thought badly of, whether or not those attitudes are intentionally expressed. And I can know that I am rewarded or punished in such a manner by others—I can bask in their good opinion or smart under their bad opinion—without their actually doing anything’ (Pettit 2002, pp. 280-81). The feeling of guilt or shame may make the external enforcement of internalized norms unnecessary. Among the tangible and intangible rewards attached to the compliance with social norms one finds increased esteem, trust and, most importantly, cooperation.
From table manners to rites of passage (from birth to death) marked by routine, solemnity or celebration, conformity to social norms can bring in their wake social order and successful collective action, while creating and maintaining cultural meaning(s). Similar to the Sartrian notion of the practico-inert (Caws 1984, pp. 155-88), social norms can appear inscribed with the necessities of nature, their exigencies unavoidable and ubiquitous, emblematic of both obstacle and opportunity. Historically, and at least up until the modern period, norms have changed rather slowly; yet our own time retains something of the stability and persistence of norms: ‘Where faddism is the norm, the rapid succession of fads indicates norm stability not instability’ (Posner and Rasmusen 1999, p. 379). Still, norms can and often do rapidly change, a comforting thought when considering norms of a perverse or pernicious variety (e.g. the duel or vendetta). Norm entrepreneurs responsible for initiating bandwagon effects and norm cascades (Sunstein 1997, p. 38), for example, can change norms for better and worse.
Some social norms are universal (e.g., the prohibition of incest), while others are more localized, what Elster (1989) calls ‘group specific:’ owning a Volvo station wagon among middle class ‘soccer moms’ in Santa Barbara, California (at any rate, before the advent of the luxury SUV), or workers and managers with differing views on what constitutes ‘fair distribution’ (p. 99). Social norms, as such, are neither good nor bad, but rather become benefit or burden insofar as they facilitate or constrain behavior guided by moral values, practical reasons or instrumental ends: ‘Social norms do coordinate expectations. They may or may not help people to achieve cooperation’ (p. 97). The behavior guided by these norms may be strongly reinforced by self-interest, as is the case with group norms of ‘exclusion’ and ‘difference’ (Hardin 1995). Russell Hardin argues that self-interest is in fact paramount in those self-enforcing universalistic norms sustained by dyadic and small number interactions, like promise-keeping and truth-telling, wherein one will have a long-term interest in maintaining the relationship served by the norm. Moreover, universalistic norms without dyadic sanctions or enforcement are often comparatively weak, as would be a norm of trustworthiness in a large society.
One is hard-pressed to argue with C. Fred Alford’s (1994) contention that ‘to exclude, ridicule, ignore, belittle, or criticize an outsider is a time-honored way of creating cohesion within a group’ (p. 29). And questions of the dynamics of group relations, toward enhancing cohesion or otherwise, might interest us if only because
impressive clinical evidence indicates that regardless of the individual’s maturity and psychological integration, certain group conditions tend to bring on regression and activate primitive psychological levels. Small, closed, and unstructured groups—as well as groups that are large, minimally structured, and lacking clearly defined tasks to relate them to their environment—tend to bring about immediate regression in the individual, a regression that consists in the activation of defensive operations and interpersonal processes that reflect primitive object relations (Kernberg 1998, p. 7).
The role of social norms vis-à-vis such fine-grained group-psychological dynamics is largely terra incognita in the legal literature.
The operation of social norms often takes place, as it were, behind our backs, with some degree of self-consciousness regarding norms surfacing in cases of egregious or frequent norm violation or, for instance, when a subcultural group, such as a gang, draws attention to itself through its regular and flagrant (or flamboyant) violation of popular or culturally predominant norms, thereby remaining true to the dominant norm within their group. As Cass Sunstein (1997) notes, in their own way, individual members of such groups ‘may be the most committed of conformists.’ Collective awareness or reflexivity regarding many social norms thus appears, in the first instance, dependent upon norm violation. Brennan and Pettit (2004) accordingly speak of
norms that most of us are barely conscious of taking our guidance from, since they are not often supported in a surrounding discourse of general commendation and critique and are not reflected in levels of common or mutual awareness. They may include the norms that govern turn taking in conversation, the use of eyes in relation to others, the distance at which one stands in speaking to another, and a host of such unnoticed but not merely mechanical regularities (p. 282).
And while the internalization of social norms may take place below the surface of consciousness, what bears repeating is the proposition suggested at the outset by Pettit and reiterated here by the economist Kaushik Basu (1998): ‘It is worth adding that at times social norms can get internalized to the extent that they do not need social enforcement, and are adhered to by individuals of their own accord’ (p. 2). The absence of social enforcement is a form of direct motivation, whereas the use of sanctions is a form of indirect motivation for norm compliance. We have sufficient warrant at this juncture to draw a tentative conclusion to the effect that (in some sense) social norms are capable of choreographing much of our lives in the daily round: the intriguing question revolving around the identification of who or what, in the end, is the choreographer? Who is authorized or qualified to change the choreography? Are all choreographies of equal significance or worth? What are the relevant criteria for assessing various choreographies?
Social norms are in fact omnipresent: from the bedroom to the boardroom, and often obdurate and opaque: after all, traditions might be thought of as those social norms that have the ‘sanction of time.’ But accounting for the tenacity and opacity of traditions has proven conspicuously elusive to social scientists and professional philosophers. While it serves some purposes to distinguish social norms from tradition (Elster 1989), it’s often quite difficult to make hard and fast categorical distinctions between traditions and customs on one hand, and social norms on the other, as there’s clearly a strong (Wittgensteinian) family resemblance if not genetic relation between all three phenomena.
Heretofore, and perhaps by default, the study of social norms has largely been the prerogative of anthropologists and sociologists. Today, however, legal theorists, including law-and-economics devotees, have engaged in trans-disciplinary cognitive border raids and trades, one consequence of which is that by ‘the mid-1990s, norms became one of the hottest topics in the legal academy’ (Ellickson 1998). Legal scholars in the areas of constitutional law, tort law, contract law, and criminal law have all looked to social norms as a possible means to address significant or recalcitrant problems in their respective areas specialization (see Massaro in Bandes 1999). In part this interest in social norms was a direct consequence of learning the range of utility for rational choice models in the law-and-economics genre. In little over a decade’s time, the interest in social norms has noticeably cooled, conspicuously in criminal law, the one legal domain where the descriptive findings of social norm models may have had the least presumptive relevance for proposals designed to change targeted behaviors. In this instance, programmatic engineering or tinkering with social norms has proven ineffective if only because ‘criminal law typically enters where social norms’ hold is strongest among nonoffenders but is, for complex reasons, not powerful enough to deter offenders’ (Massaro in Bandes 1999, p. 91). Robert Weisburg (2003) makes the selfsame point in an especially pellucid article: ‘in its loose eclecticism, norms analysis is peculiarly incongruent with the realm of criminal law, because the criminals society most and most rightly fears, exhibit both a pathological indifference to, and a compulsive inability to obey, the social norms that supposedly guide good behavior’ (p. 470).
Legal minds still infatuated with social norms that rely on a relatively weak grasp of the mechanisms of complex emotions, would do well to heed an argument from Martha Nussbaum in Hiding from Humanity: Disgust, Shame and the Law (2004). Nussbaum finds that one of the emotions criminal law theorists have given inordinate attention to, namely shame, ‘is likely to be normatively unreliable in public life, despite its potential for good’ (p. 15). Indeed, those who have predicated their proposed criminal law reforms upon putative shaming mechanisms have conspicuously failed to realize ‘how labile, complex, and ill understood this basic emotion is’ (Massaro in Bandes 1999, pp. 91-92). Even John Braithwaite’s (1989) fairly nuanced criminological theory of ‘reintegrative shaming,’ which Nussbaum is otherwise sympathetic to, is criticized for failing to sufficiently distinguish guilt from shame. She would in fact simply re-classify his proposal within the (Kantian) ‘universe of guilt punishments’ (pp. 240-41). In short, although some forms of shame undoubtedly have positive ethical value, cognizance of the various pathologies that may be prompted by social shaming should preclude facile reliance on this emotion in the propagation of social norms designed to be conducive to individual flourishing and the common good (cf. Markel, 2001 and 2007).
And while Nussbaum does explore some cross-cultural issues in the study of such emotions as disgust and shame, much of the literature on social norms has a rather parochial and provincial quality to it. This of course need not be a liability insofar as the legal order is likewise parochial or provincial, but in an era of globalization, with transnational (e.g. the European Union) and international legal orders, arbitrary or ill-considered national and cultural circumscription of the social scientific and scholarly work in this regard may render this literature irrelevant to many of our more salient or urgent economic, political, and environmental issues and problems. Moreover, beginning with the seminal studies of Solomon and de Sousa, and most recently evidenced, for example, in works by Ben-Ze’ev, Elster, Goldie, and Nussbaum, there is a growing body of excellent philosophical and psychological studies of the emotions. Unfortunately this literature has yet to systematically treat the relation between the emotions and social norms in a manner both befitting the concerns of legal practitioners and reflective of the clarity indispensable for any legal theory with philosophical integrity. No doubt the disciplinary division of labor and the trends toward increased cognitive specialization can be invoked as prominent explanatory variables. In this respect, Nussbaum’s Hiding from Humanity, alongside the work of Robert Solomon (below), is uncommon and timely, perhaps portending more studies along these lines capable of meeting such desiderata
A rather succinct description of the generation of social norms is found in Brennan and Pettit’s The Economy of Esteem: An Essay on Civil and Political Society (2004): “Norms materialize as regularities in social life, because there is general approval for the pattern of behavior involved, disapproval for the failure to elicit that behavior, or the expectation of such general approval or disapproval” (p. 267). In this account, social norms are created and persist with the ‘intangible hand’ of an ‘economy of esteem,’ a hand whose prints are distinct from both the ‘invisible hand of the marketplace’ and the ‘iron hand of the state.’ That said, we are reminded that ‘both the institutions of the market and the law themselves presuppose and depend upon a regime of robust supportive norms’ (p. 265). While Brennan and Pettit present us with a more than plausible picture of the generation (the how and why) of social norms, they don’t really endeavor to explain the processes by which these norms are internalized. This explanatory lacuna has, however, been courageously addressed in an article by Robert Cooter (1996), well and succinctly summarized here by his sometime collaborator, Melvin Eisenberg (1999):
[Cooter] focuses on three processes by which social norms are internalized: a Freudian process, in which the repressed memory of parental sanctions for childhood transgressions becomes transmuted into an adult superego; a Piagetian process, in which children perfect their ability to internalize norms as they acquire the capacity for general reasoning; and a Weberian process in which actors internalize the norms of social roles (pp. 15-16).
I leave it to others to assess the cogency of Cooter’s explanatory account of the internalization of social norms, an account of merit owing to its recognition of the need for some sort of social-psychological explanation in the process of norm internalization, consolidation, and persistence.
As much of human behavior is subject to norm constraints and the penalties attached to their violation (be it shame, guilt, shunning, exclusion, ostracism, or emotional and physical violence), or the rewards attached to their compliance (increased esteem, trust, cooperative behavior), it helps to distinguish between moral, social and legal norms. For our purposes, we’ll elide the differences between the first two (i.e., ignoring moral norms as such), assuming that some social norms are at the same time moral norms or contain moral principles, and focus instead on the distinction between social norms in general and legal norms in particular, highlighting the contrast between social norms and those legal norms directly or indirectly associated with the institutions or prerogatives of the State.
Whilst the distinction between social and legal norms may be transparent with respect to the functions and responsibilities of the State, it is the interaction or precise relation between these two kinds of norms that are the particular foci of legal theorists. The precise locus of theoretical concern is analogous to the differences in contemporary Anglo-American political philosophy between the Rawls of a Theory of Justice (1971) and the Nozick of Anarchy, State, and Utopia (1974). Thus libertarians (Nozick) by temperament are inclined to appreciate that set of collective action problems seemingly solved by social norms apart from or irrespective of the State, while contemporary liberals (Rawls) call upon the State and its legal norms to—so to speak—fill in the gaps left by insufficient or inefficient norm compliance (yet both Rawls and Nozick draw upon this or that feature of Kantian ethics, and both are Liberals in the philosophical and historical sense).
However, economists of a libertarian bent, like neoclassical economists in general, rely on a rational choice methodology (on which, see Amadeae 2003, Cox 2004, Hausman 2003, Sen 2002, Green and Shapiro 2005, and Udehn 2003) that privileges preferences produced by ‘rational self-interest’ and thus is not, in general, well-suited to an appreciation of social norms (yet see Eric Posner below). There is increasing recognition of this fact from within economics:
Although sociologists and anthropologists have long understood the central role played by norms, economists have traditionally viewed them as peripheral to economic decisions (notable exceptions are Thomas Schelling, George Akerlof, and Robert Sugden). The fact is, however, the norms influence terms of employment, the amount that people save and consume, attitudes toward debt, decisions about when to retire, and a host of other economic variables. Even property rights are governed to a considerable extent by social expectations about who is entitled to what [references omitted] (Young 2005).
Whatever the limitations of rational choice methodology—and those are perhaps more apparent in political science and sociology than in economics—it is hard to quibble with Elster’s conclusion that ‘the continued dominance of neoclassical theory is ensured by the fact that one can’t beat something with nothing’ (Elster 1986, p. 27).
The theoretical debate here is chock full of practical implications and consequences for public policy, as all sides well realize. The fundamental point from a public policy perspective is that any theory of institutional design or regulation must minimally consider two questions: 1) what existing social norms work with or against our regulatory (legal) purposes, and 2) the likelihood that a regulatory regime will give rise to yet new norms or increase the salience of otherwise weak or dormant norms (Pettit 2002). Needless to say, these are not tasks for the sociologically timid or politically faint of heart, but remain the sorts of questions legal theorists are constitutionally equipped—with the requisite transdisciplinary sophistication—to consider.
A social norm may arise or persist because of its contribution to solving a co-ordination problem, for instance when it supports or facilitates a ‘convention’ (Lewis 1969) wherein members of a group realize a benefit by conforming to a behavioral regularity (thereby achieving the equilibrium so enchanting to neo-classical economists). Norms that reinforce self-interest (e.g., everyone driving on the right side of the road, or the left as the case may be), while assisting in the formation of equilibrium, are what Basu terms, appropriately enough, ‘equilibrium-selection norm[s].’ Such norms are the bailiwick of economists, given their behavioral affinity with the exiting topical foci of neo-classical economics. It is sometimes difficult to ascertain exactly which norms support or go against self-interest, for what at first may appear to be an instance of the latter, may turn out on closer inspection to be yet another example of the former:
a person in need can expect help from other members of the tribe or the village, the explicit understanding being that the help will be reciprocated at other times when fortunes are reversed. This norm can be thought of as a rationality-limiting norm [Basu using ‘rationality’ here in the constricted sense of the economist] since the person who helps out the destitute seems to do so against his self-interest. But we can take a long-term perspective on this and argue that if an individual refuses to help when it is his turn, the whole system can collapse. And so, in a manner akin to the repeated Prisoner’s Dilemma, the norm of reciprocity may be an equilibrium-selection norm (Basu 1998, p.5).
Insofar as social norms have permeated virtually every nook and cranny of collective behavior, their significance for solving collective action problems is not surprising. It is the precise delineation of that role and its mechanisms vis-à-vis the law, however, that causes all the trouble, as a comparison between the work of Cass Sunstein and Eric Posner will make clear below. Stefan Sciaraffa (2005) here explains how social norms are germane to application of the negligence standard in tort law:
Most cases in tort law are governed by the negligence standard. Under this standard, a defendant is liable for injury to another only if the injury resulted from her ignorance. Negligence is a failure to meet a standard of reasonable care. In some contexts, courts have held that actions in conformity with a prevailing social norm meet, as a matter of law, the standard of reasonable care (the per se rule). In other contexts, the courts have held that the fact that the defendant has followed the prevailing social norms is evidence for the jury to consider in determining whether the defendant has met the standard of reasonable care (the evidentiary rule). In yet other contexts, courts have held that the defendant’s following the prevailing social norms has no evidentiary value whatsoever (the no-evidence rule). The modern rule of custom rejects the per se rule in favor of the evidentiary rule save for one major exception—cases of medical malpractice (and perhaps other cases of professional malpractice). A medical professional’s conformity to or failure to follow the norms of the medical community constitutes per se reasonable care or negligence, respectively.
And in addition to the fact that it is not easy to draw a sharp distinction between social norms and law, the relation between them is not simply or only a matter of preferring one over the other (non-coercion v. coercion), as roles (father, merchant, citizen, etc.) and their attendant norms can be (and frequently are) fortified by legal requirements: indeed, some roles ‘may even owe their existence to law’ (Sunstein 1997, p. 43). So law may, indirectly or circuitously, contribute to the creation and maintenance of social norms, not simply replace them, as was the case historically with some norms of retribution, such as the blood feud.
In addition to the creation, maintenance or elimination of social norms, and the direct invocation of social norms (as in the example above from tort law), the law may also serve as a medium of sublimation: ‘often violent demands for vengeance may be sublimated and satisfied by law’ (Solomon in Bandes 1999, p. 124). This is a provocative thesis, distinguishable from the aforementioned concerns of Massaro and Weisburg. Robert Solomon, prominent among a select group of philosophers responsible for making the study of the emotions respectable in contemporary analytic philosophy (beyond its prior obsession with epistemology and philosophy of language) persuasively argues that ‘vengeance is not just the desire to harm but the desire to punish for good reason and to the right measure’ (p. 142). Solomon elaborates:
In many cultures (let us not leap to label them ‘primitive’), vengeance and avenging wrongs are a matter of personal and family honor. In civil society, vengeance and avenging wrongs are a matter of personal and family honor. In civil society, vengeance and avenging wrongs become matters of common justice and law, but they are not thereby rendered irrelevant to the proceedings (p. 129).
And why are they not irrelevant? ‘It is the heart of vengeance as well as the basis for criminal law, the idea that the punishment should “fit” the crime’ (p. 137). Solomon concludes that while vengeance admittedly is a ‘powerful and therefore dangerous passion,’ its sublimation in both civil and criminal law helps us to appreciate its ‘capacity for rationality, prudence, and cultural shaping’ as well (p. 144).
Cass Sunstein believes government should have a more explicit or avowed—more deliberate (read ‘deliberative,’ although Sunstein is not always clear as to what is uniquely deliberative about the democratic mechanisms and processes assumed or cited)—role in norm management or governance. To cite just one of many possible examples, a change in the norms that surround the consumption of alcohol has the potential to dramatically reduce the risk of illness and death associated with that consumption. Like Ronald Dworkin, Sunstein is sensitive to what he calls the law’s ‘expressive function,’ that is, law’s capacity to embody or express our deepest (or highest) social values and commitments, for instance, autonomy or self-determination, liberty and equality, human rights and social welfare or well-being. In sum, these democratic values and principles, like the ideal (collective self-rule) of democracy itself, should be reflected or realized in, exemplified or approached by, the methods, practices and processes of democratic legal regulation and governance. A liberal democratic regime, argues Sunstein, should work (perhaps as part of a paternalistic obligation) to eliminate or transform those social norms that are clear impediments to a fuller instantiation or realization of liberal and democratic values and commitments or, more specifically if not controversially, those norms that manifestly inhibit the creation or maintenance of the requisite conditions for and propitious to human flourishing (eudaimonia), or to the ideal of moral and political autonomy (conceived in terms of self-direction or self-governance, and best construed as a developmental achievement or outcome) (cf.: Wall 2003, and Norton 1991).
To the extent that putatively private preferences or choices are determined by (anti-democratic) social norms—that is, norms that interfere with the rational pursuit of our freely (i.e., autonomously) expressed rational choices and preferences—the government finds (sufficient, legitimate, justifiable) reason for (paternalistic) intervention. One way to conceptualize such intervention comes courtesy of the title of a recent paper by Sunstein and Thaler (2003): ‘Libertarian Paternalism is not an Oxymoron.’ Individual and collective preferences, as captured by rational choice models of behavior, may accord unwarranted weight to perverse preferences (‘adaptive preferences’ in the literature: see Elster 1983, and Nussbaum 2000, pp. 111-166), that is, preferences shaped by existing anti-democratic or anti-eudaimonistic social norms:
For example, women who are systematically denied roles in public life or equal shares of consumption goods may learn not to want these things. Their level of preference satisfaction may then be much higher than their level of well-being. It seems that those who are benevolent need to consider not just preferences, but the origins of preferences or the justifiability of preferences. Women who have been systematically oppressed may not have strong preferences for individual liberties, the same wages that men earn, or even for protection from domestic violence. But liberties, high wages, and protection from domestic violence may make them better off than giving them what they prefer. Satisfying preferences that result from coercion, manipulation, or ‘perverse’ preference formation mechanisms may not make people better off (Hausman and McPherson 1996, p. 79).
Thus one might see how particular social norms could be held liable for manipulable or perverse preference formation, what Basu (2000) has labeled ‘preference-changing norms’ (p. 73). Robert Goodin (1995, pp. 132-148) argues that richer ‘utility’ information may suffice for ‘laundering’ such ‘dirty’ preferences, such information to include knowledge of the causal origin and mechanisms of entrenchment of the implicated social norms.
In other words, the government might find any number of legitimate or justifiable reasons to intervene on behalf of our deepest (liberally) democratic social values and commitments, recalling that the primary justification for government flows from its capacity to solve collective action problems, whether or not those problems are caused or exacerbated by any social norm: ‘where there is a collective responsibility to coordinate individual behavior in pursuit of some morally important goal, it is legitimate for the collectivity to impose sanctions upon individuals in pursuit of that goal’ (Goodin 1995, p. 40). Were it not for the entrenchment of social norms of reciprocity, work and consumption, or norms of fairness and ‘everyday Kantianism’ (Elster 1989), it appears we would often require recourse to differing degrees of legal coercion or state regulated economic incentives to coordinate our behavior and accomplish many of our collective ends.
The latest and most analytically consistent attempt to understand social norms from within legal theory (of the law-and-economics variety or genre) is proffered by Eric Posner (2000), and is grounded in economics and game theory (loosely, ‘behavioral economics’), the latter a rational choice methodology. We cannot here do justice to the analytical merits of Posner’s ‘signaling game,’ in which people engage in behavioral regularities in order to communicate to others their willingness, fitness or desirability as potential partners in co-operative endeavors. Suffice it to say, a social norm describes behavior that spontaneously emerges in ‘signaling equilibriums’ or behavioral regularities in social interaction. It is in one’s self-interest to earn a ‘reputation’ as a co-operative player (the ‘good’ or cooperative type, as opposed to the ‘bad’ or opportunistic type), and there are many ways to solidify or enhance—signal—one’s reputation (e.g. gift giving).
The simplicity and clarity of Posner’s model for explaining widespread compliance with many social norms suggests that any legal theory worthy of the appellation will be compelled to cite Posner’s model, if only by way of an evaluative or comparative baseline. Posner’s study provides ample reason for proceeding with due care and caution when it comes to government initiated norm change, given the current state of our knowledge about the operation of social norms in post-industrialized affluent societies, and the strong probability that unintended consequences and perverse effects might very well reverse the causal direction of Mandeville’s perverse arrow: from public benefits to private vices.
Ann Carlson (2003) is, like Sunstein, a bit more confident about working with social norms as a tool of public policy, particularly with regard to environmental regulation. Carlson suggests we scrupulously observe the following innocuous if not meager methodological prescriptions: ‘in evaluating the efficacy of social norms as a regulatory tool we should pay close attention to the nature of the social problem at issue, the context in which it arises, and the availability of other regulatory options’ (p. 24). Empirical studies suggest, not surprisingly, that group size and individual payoff are variables that affect the likelihood norms will solve or manage social problems: the smaller the size of the group affected by a social problem, the more likely norms will be an effective antidote; and the larger the economic incentive for group members to address a problem, the more likely social norms will prove a successful policy prescription: ‘Thus norms should work best in small-number, large-payoff groups’ (p. 4, cf. Ellickson 1991). This might be seen as illustrating the proposition that signaling mechanisms intrinsic to Posner’s model are subject to something like economies of scale, although the locus of precise tipping points, that is, the point at which it is difficult if not impossible for signaling mechanisms to have rippling or reverberative effects is not easy to determine.
Brian Tamanaha (2001) has rightly cautioned legal theorists against confusing (or conflating) the legal system with the creation and maintenance of social order simpliciter (‘law and order’ ideology), otherwise termed the ‘Hobbesian presumption.’ Of course such a warning would be unnecessary in anthropological and sociological circles wherein it has long been recognized (e.g., Durkheim and Parsons) that there are sources of order in tandem with, apart from, or prior to the State (e.g., in that social space designated as ‘civil society’) responsible for the ‘substantial coordination of behaviour’ (Tamanaha 2001, p. 211). Tamanaha offers a typology of sources for social order that will not detain us here except to mention his reiteration of the fact that social norms and related roles ‘make a major contribution to the coordination of behaviour’ (p. 216). Belated recognition of this fact is news of a sort only within legal theory! Indeed, I suspect several of Tamanaha’s sources of social order (e.g., what he calls the ‘unarticulated substrate’—a source/type inspired by a (later) Wittgensteinian understanding of language as well as Habermas’s notion of the ‘lifeworld’) could and should be subsumed within the category of social norms.
Tamanaha’s main point is that ‘the traditionally assumed relationship’ between state law and social order crystallized in the Hobbesian presumption among legal theorists,‘ gets things backwards or upside down. It is state law that is dependent on these other sources of social order if it is to have a chance of exerting an influence (p. 224). In going beyond the Hobbesian presumption wherein social order is a direct result of a contractual agreement, or in supplementing rational choice models (including game theory) in which social orders (e.g., markets) are the unintended yet fortuitous outcome of actions ruled by rational calculations, the belated recognition of the salience of social norms in legal theory is a welcome development. Perhaps now legal theorists (in addition to those who, like Dennis Patterson, are already ‘Wittgensteinian’) will take greater notice of the ‘practice turn’ in contemporary theorizing about the constitution of social order (see Schatzki 1996 and 2002, Schatzki, Knorr Cetina and Savigny 2001, Patterson 2004).
In conclusion, the current literature connecting social norms to legal theory suggests a philosophically prudent public policy should probably fall out somewhere betwixt and between Sunstein’s enthusiasm and Posner’s modesty. At the very least, policy prescriptions and changes in the law based upon—at this point in time—our comparatively weak understanding of social norms, and the emotions that fortify them (or simply the pertinent social psychological mechanisms), suggest we proceed with due caution and reticence. All the same, it behooves legal practitioners and students of the law in general to maintain an abiding and deep interest in the role of social norms in the coordination of behavior, if only by way of understanding social phenomena that eludes (or supplements) the explanatory scope of rational choice theories. In the same vein, legal theorists interested in social norms (their different philosophical assumptions and perspectives notwithstanding) should overcome their exclusive enchantment with neo-classical economics, engaging their colleagues in the social sciences more generally. Of course this may be asking too much, given the existing disciplinary division of labor and the impetus in social epistemology toward cognitive specialization and fragmentation. And an intimate acquaintance with the relevant literature in psychology and philosophy, in this case work on the emotions, can only further and fulfill the ends of any legal theory that endeavors to understand social phenomena as ubiquitous, opaque and often obdurate as social norms.
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