essay about legal norms

Unleashed: The Role of Norms and Law

Cass Sunstein

In the late 1980s, when I was a visiting professor at Columbia Law School, I happened to pass, in the hallway near my office, a law student (female) speaking to an older law professor (male). To my amazement, the professor was stroking the student’s hair.

I thought I saw, very briefly, a grimace on her face. It was a quick flash. When he left, I said to her, “That was completely inappropriate. He shouldn’t have done that.” Her response was dismissive: “It’s fine. He’s an old man. It’s really not a problem.”

Thirty minutes later, I heard a knock on my door. It was the student. She was in tears. She said, “He does this all the time. It’s horrible. My boyfriend thinks I should make a formal complaint, but I don’t want to do that. Please — I don’t want to make a fuss. Do not talk to him about it and do not tell anyone.”

Social norms imposed constraints on what the law student felt that she could say or do. She hated what the professor was doing; she felt harassed. But the norms of the time pressed sexually harassed students to silence themselves. (Of course that is also true today, though to a lesser extent.) As a result, she did not want to say or do anything. My little comment liberated her, at least in the sense that she felt free to tell me what she actually thought.

I am interested here in two different propositions. The first is that the erosion of existing social norms often unleashes people, in the sense that it allows people to say what they believe and prefer, and to act as they wish . For that reason, new or emerging norms, and laws that signal, entrench, or fortify those norms, can lead to the discovery of preexisting beliefs, preferences, and values. The discovery can be startling. Sometimes people, and whole communities, seem to shift on a dime.

The second proposition is that revisions of norms can construct preferences and values . New or emerging norms, and laws that signal, entrench, or fortify those norms, can give rise to beliefs, preferences, and values that did not exist before. Nothing is uncovered or unleashed; new preferences are created.

Begin with the phenomenon of unleashing: When some norms are in force, people falsify their preferences or are silent about them, and as a result, strangers and even friends and family members may not be able to know what people actually think and want . Once norms are revised, people will reveal preexisting preferences and values, which norms had successfully suppressed. What was once unsayable is said, and what was once unthinkable is done.

In the context of sexual harassment, something like this account is broadly correct: Women disliked being harassed, or even hated it, and erosion of old norms increased the likelihood that they would feel free to express their feelings and beliefs in public. Law often plays a significant role in fortifying existing norms or in spurring their erosion. Consider the signaling effect of the election of a new leader or the enactment of new legislation. The signaling effect may be crucial and even transformative, offering people information about what other people think. After people hear the signal, norms may shift , because people are influenced by what they think other people think. One of the effects of judicial rulings that prohibited sexual harassment was to contribute to the process of revision of norms and of freeing people to say what they actually thought.

But in intriguingly different cases, revisions of norms, and laws that entrench those revisions, do not liberate anything. As norms begin to be altered, people come to hold, or to act as if they hold, preferences and values that they did not hold before . Nothing had been hidden or silenced. In such cases, revisions of norms, and resulting legal reforms, do not uncover suppressed desires; they produce new ones, or at least statements and actions that are consistent with new ones.

In certain cases, of course, the picture is mixed, in the sense that the two phenomena are at work simultaneously. For some people in a group or a community, preferences and values are suppressed; in the 1940s and 1950s, for example, many nonsmokers did not like being around smokers, even though they silenced themselves and offered no objection in public. But in the same period, many nonsmokers did not mind being around smokers. As norms shift, those whose preferences were suppressed will suddenly say what they think, potentially creating a kind of “norm cascade,” which can easily sweep up people who did not particularly dislike the status quo. Many nonsmokers now object to smoking, and while we cannot know if they would have objected under the norms of the 1940s and 1950s, there is every reason to think the rise of antismoking norms (and laws) created new preferences for many people even as they unleashed old preferences for many others.

Consider in this regard the idea of “ political correctness ,” which is standardly a reference to left-leaning social norms, preventing the expression of views that defy a prevailing left-of-center orthodoxy, and so silencing people. Political correctness means that people cannot say what they actually think; they are forced into some kind of closet. (The very term should be seen as an effort to combat existing norms.) No one should doubt that such silencing often happens. But it is also true that on both the left and the right, political correctness can construct preferences and values, making certain views unthinkable (for better or for worse). Eventually the unthinkable might become unthought. Is that chilling? (Sometimes, but sometimes not; it is not terrible if no one thinks Nazi thoughts.)

Does it matter whether revisions of norms, through private behavior or law, liberate people to reveal their preexisting preferences and values, or instead construct new preferences and values? For purposes of understanding social phenomena and the role of law, it certainly does. If preferences and values are hidden, the circumstances are right for rapid social change — but it can be difficult or perhaps even impossible to predict . When people are silent about their preferences or values, and when they falsify them, it is hard to know what people actually think. Because people conceal their preferences, outsiders cannot readily identify them. If people are bitter or discontent but fail to say so, and if they start to talk and act differently once norms are challenged and changed, then large-scale shifts in behavior are possible — but no one may be able to anticipate them .

The rise of norms against sexual harassment is an example (which is hardly to say that sexual harassment and self-silencing have disappeared). The partial collapse of norms authorizing or promoting discrimination against transgender people can be seen in similar terms: For many transgender people, the effect is to prevent self-silencing and the falsification of preferences. Similar dynamics help account for the fall of Communism , the Arab Spring , and the election of Donald Trump .

When revisions in norms produce new preferences and beliefs, rapid change is also possible, but the mechanics are altogether different. Those who produce such change (“norm entrepreneurs”) do not seek to unleash preexisting preferences, beliefs, and values. As norms shift, people are not liberated at all. Influenced and informed by new or emerging norms, they develop fresh thoughts and feelings, or at least act as if they have them . The rise of Nazism is famously complicated and highly disputed, but it can be understood in these terms, at least if we suppose that many Germans, caught up in the spread of Nazism, did not hate or dislike Jews, or have any kind of animus against them, until Hitler rose to prominence. I speculate that the 2015-2017 spread of attacks on statues and symbols associated with slavery, and with the South in the Civil War, is in large part (of course not exclusively) a product of new norms, rather than the unleashing of hidden preferences and values.

At the level of individuals, we can also find intermediate cases, in which people do not exactly have antecedent preferences that norms silence, but in which they hear a stubborn, uneasy voice in their heads, which they ignore, thinking, Why bother to listen to that ? But as norms start to shift, that question has an answer: Maybe it is telling me something important, or something that reflects my real feelings and beliefs .

The general points hold far more broadly; they help explain many social movements fueled by emerging norms that unleash suppressed preferences, create new ones, or both. Consider, for example, cigarette smoking, seatbelt-buckling, uses of green energy, homophobia, Brexit, purchases of organic food, considerateness , demonstrations for white supremacy, veganism, the use of new languages, the recovery of old languages (such as Irish and Hebrew), polyamory, religious beliefs and practices, drug use, and crime. In all of these cases, norms (and law) can constrain antecedent preferences; new norms (and law) can liberate them or instead help construct new ones (or at least the appearance of new ones). Revisions in norms sometimes produce large-scale changes in an astoundingly short time, including legal reforms, which can entrench and fortify those revisions .

For both insiders and outsiders, it will often be difficult to distinguish between situations in which new norms, fueling social cascades, unleash old preferences and situations in which norm entrepreneurs succeed in creating entirely new ones. In either case, stunning surprises are nearly inevitable.

Legal Theory

On Constructing a Stronger Right to Strike Through Comparative Labor Law

David J. Doorey
Harvard Law Review

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Legal Positivism

Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790–1859) formulated it thus:

The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. (1832 [1995: 157])

The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist . Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.). Austin thought the thesis “simple and glaring”. While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.

1. Development and Influence

2. the existence and sources of law, 3. moral principles and the boundaries of law, 4.1 the fallibility thesis, 4.2 the separability thesis, 4.3 the neutrality thesis, other internet resources, related entries.

Legal positivism has a long history and a broad influence. It has antecedents in ancient political philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought (see Finnis 1996). The modern doctrine, however, owes little to these forbears. Its most important roots lie in the political philosophies of Hobbes and Hume, and its first full elaboration is due to Jeremy Bentham (1748–1832) whose account Austin adopted, modified, and popularized. For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated English philosophical reflection about law. By the mid-twentieth century, however, this account had lost its influence among working legal philosophers. Its emphasis on legislative institutions was replaced by a focus on law-applying institutions such as courts, and its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. The most important architects of contemporary legal positivism are the Austrian jurist Hans Kelsen (1881–1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907–92) and Joseph Raz, among whom there are clear lines of influence, but also important contrasts. Legal positivism’s importance, however, is not confined to the philosophy of law. It can be seen throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also among many lawyers, including the American “legal realists” and most contemporary feminist scholars. Although they disagree on many other points, these writers all acknowledge that law is essentially a matter of social fact. Some of them are, it is true, uncomfortable with the label “legal positivism” and therefore hope to escape it. Their discomfort is sometimes the product of confusion. Lawyers often use “positivist” abusively, to condemn a formalistic doctrine according to which law is always clear and, however pointless or wrong, is to be rigorously applied by officials and obeyed by subjects. It is doubtful that anyone ever held this view, but it is in any case false and has nothing to do with legal positivism. Among the philosophically literate another, more intelligible, misunderstanding may interfere. Legal positivism is here sometimes associated with the homonymic but independent doctrines of logical positivism (the meaning of a sentence is its mode of verification) or sociological positivism (social phenomena can be studied only through the methods of natural science). While there are historical connections and commonalities of temper among these ideas, they are essentially different. The view that the existence and content of law depends ultimately on social facts does not rest on a particular semantic thesis, and it is compatible with a range of theories about how one investigates the social world, including non-naturalistic accounts. To say that the existence of law depends on facts and not on its merits is a thesis about the relation among laws, facts, and merits, and not otherwise a thesis about the individual relata. Hence, many traditional “natural law” moral doctrines—including the belief in a universal, objective morality grounded in human nature—do not contradict legal positivism. The only influential positivist moral theories are the views that moral norms are valid only if they have a source in divine commands or in social conventions. Such theists and relativists apply to morality the constraints that legal positivists think hold for law.

Every human society has some form of social order, some way of marking and encouraging approved behavior, deterring disapproved behavior, and resolving disputes about that behavior. What then is distinctive of societies with legal systems and, within those societies, of their law? Before exploring some positivist answers, it bears emphasizing that these are not the only questions worth asking about law. While an understanding of the nature of law requires an account of what makes law distinctive, it also requires an understanding of what it has in common with other forms of social control. Some Marxists are positivists about the nature of law while insisting that its distinguishing characteristics matter less than its role in replicating and facilitating other forms of domination. (Though other Marxists disagree: see Pashukanis 1924). They think that the specific nature of law casts little light on their primary concerns. But one can hardly know that in advance; it depends on what the nature of law is.

For Bentham and Austin, law is a phenomenon of societies with a sovereign : a determinate person or group who have supreme and absolute de facto power—they are obeyed by all or most others but do not themselves similarly obey anyone else. The laws in that society are a subset of the sovereign’s commands : general orders that apply to classes of actions and people and that are backed up by threat of force or “sanction”. This imperatival theory is positivist, for it identifies the existence of law with patterns of command and obedience that can be ascertained without considering whether the sovereign has a moral right to rule or whether their commands are meritorious. It has two other distinctive features. The theory is monistic : it represents all laws as having a single form, imposing obligations on their subjects, though not on the sovereign itself. The imperativalist acknowledges that ultimate legislative power may be self-limiting, or limited externally by what public opinion will tolerate, and also that legal systems contain provisions that are not imperatives (for example, permissions, definitions, and so on). But they regard these as part of the non-legal material that is necessary for every legal system. (Austin is a bit more liberal on this point). The theory is also reductivist , for it maintains that the normative language used in describing and stating the law—talk of authority, rights, obligations, and so on—can all be analyzed without remainder in factual terms, typically as concatenations of statements about power and obedience.

Imperatival theories are now without influence in legal philosophy (but see Ladenson 1980 and Morison 1982). What survives of their outlook is the idea that legal theory must ultimately be rooted in some account of the political system, an insight that came to be shared by all major positivists save Kelsen. Their particular conception of a society under a sovereign commander, however, is friendless (except among Foucauldians, who strangely take this relic as the ideal-type of what they call “juridical” power). It is clear that in complex societies there may be no one who has all the attributes of sovereignty, for ultimate authority may be divided among organs and may itself be limited by law. Moreover, sovereignty is a normative concept. A legislator is one who has authority to make laws, and not merely someone with great social power, and it is doubtful that “habits of obedience” is a candidate reduction for explaining authority. To distinguish genuine obedience from coincidental compliance we need something like the idea of subjects being oriented to, or guided by, the commands. Explicating this will carry us far from the power-based notions with which classical positivism hoped to work. The imperativalists’ account of the character of individual laws is also subject to decisive objections (Hart 1961 [2012: 26–78]; and Hacker 1973). Treating all laws as commands conceals important differences in their social functions, in the ways they operate in practical reasoning, and in the sort of justifications to which they are liable. For instance, laws conferring the power to marry command nothing; they do not obligate people to marry, or even to marry according to the prescribed formalities. Nor is reductivism any more plausible here: we speak of legal obligations when there is no probability of sanctions being applied and when there is no provision for sanctions (as in the duty of courts to apply the law). Moreover, we take the existence of legal obligations to be a reason for imposing sanctions, not a consequence or constituent of it.

Hans Kelsen retains the imperativalists’ monism but abandons their reductivism. On his view, law is characterized by a singular form and basic norm . The form of every law is that of a conditional order, directed at the courts, to apply sanctions if a certain behavior (the “delict”) is performed. On this view, law is an indirect system of guidance: it does not tell subjects what to do; it tells officials what to do to its subjects under certain conditions. Thus, what we ordinarily regard as the legal duty not to steal is for Kelsen merely a logical correlate of the primary norm which stipulates a sanction for stealing (1945 [1961: 61]). The objections to imperatival monism apply also to this more sophisticated version: the reduction misses important facts, such as the point of having a prohibition on theft; the law is not indifferent between, on the one hand, people not stealing and, on the other, stealing and suffering the sanctions. But in one respect the conditional sanction theory is in worse shape than is imperativalism, for it has no way to fix on the delict as the duty-defining condition of the sanction—that is but one of a large number of relevant antecedent conditions, including the legal capacity of the offender, the jurisdiction of the judge, the constitutionality of the offense, and so forth. Which among all these is the content of a legal duty?

Kelsen’s most important contribution lies in his attack on reductivism and his doctrine of the “basic norm”. He maintains that law is a normative domain and must understood as such. Might does not make right—not even legal right—so the philosophy of law must explain the fact that law imposes obligations on its subjects. Moreover, law is a normative system : “Law is not, as it is sometimes said, a rule. It is a set of rules having the kind of unity we understand by a system” (1945 [1961: 3]). For the imperativalists, the unity of a legal system consists in the fact that all its laws are commanded by one sovereign. For Kelsen, it consists in the fact that they are all links in one chain of authority. For example, a by-law is legally valid because it is created by a corporation lawfully exercising the powers conferred on it by the legislature, which confers those powers in a manner provided by the constitution, which was itself created in a way provided by an earlier constitution. But what about the very first constitution, historically speaking? Its authority, says Kelsen, is “presupposed”. The condition for interpreting any legal norm as binding is that the first constitution is validated by the following “basic norm:” “ the original constitution is to be obeyed ”. Now, the basic norm cannot be a legal norm—we cannot explain the bindingness of law by reference to more law without an infinite regress. Nor can it be a social fact, for Kelsen maintains that the reason for the validity of a norm must always be another norm—no ought from is. It follows, then, that a legal system must consist of norms all the way down. It bottoms in a hypothetical, transcendental norm that is the condition of the intelligibility of any (and all) other norms as binding. To “presuppose” this basic norm is not to endorse it as good or just—presupposition is a cognitive stance only—but it is, Kelsen thinks, the necessary precondition for a non-reductivist account of law as a normative system.

There are many difficulties with this, not least of which is the fact that if we are going to accept the basic norm as the solution it is not clear what we thought was the problem in the first place. One cannot say both that presupposing the basic norm is what validates all inferior norms and also that an inferior norm is part of the legal system only if it is connected by a chain of validity to the basic norm. We need a way into the circle. Moreover, it draws the boundaries of legal systems incorrectly. The Canadian Constitution of 1982 was lawfully created by an Act of the U.K. Parliament, and on that basis Canadian law and English law should be parts of a single legal system, rooted in one basic norm: “The (first) U.K. constitution is to be obeyed”. Yet English law is not binding in Canada, and a purported repeal of the Constitution Act by the U.K. would be without legal effect there.

If law cannot ultimately be grounded in force, or in a presupposed norm, on what does its authority rest? The most influential solution is perhaps H.L.A. Hart’s. His solution resembles Kelsen’s in its emphasis on the normative foundations of legal systems, but Hart rejects Kelsen’s transcendentalist, Kantian view of authority in favor of an empirical, Weberian one. For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced, that is, used to guide conduct. Law ultimately rests on custom: customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision, i.e., as sources of law, and how laws may be changed. Of these three “secondary rules”, as Hart calls them, the source-determining rule of recognition is most important, for it specifies the ultimate criteria of validity in the legal system. It exists only because it is practiced by officials, and it is not only that the recognition rule best explains their practice, it is the rule to which they actually appeal in arguments about what standards they are bound to apply. Hart’s account is therefore in one sense conventionalist (see Marmor 1998 and Coleman 2001): ultimate legal rules are social norms, although they are neither the product of express agreement nor conventions in the Schelling-Lewis sense (see Green 1999). Thus for Hart too the legal system is rule-based all the way down, but at its root is a social norm that has the kind of normative force that customs have. It is a regularity of behavior regarding which officials take “the internal point of view:” they use it as a standard for guiding and evaluating their own and others’ behavior, and this use is displayed in their conduct and speech, including the resort to various forms of social pressure to support the rule and the ready application of normative terms such as “duty” and “obligation” when invoking it.

Law, then, has its ultimate basis in the behaviors and attitudes of its officials. In the eyes of some this still seems to imply a mystifying reduction: how can we generate the oughts of the legal world from the is of official consensus? Concerns of this type part motivate Scott Shapiro’s understanding of law and his attempt to break with Hart’s theory: laws, he suggests, should be conceived of as “generalized plans, or planlike norms, issued by those who are authorized to plan for others” (2011: 155). Understanding law on the model of social planning, Shapiro suggests, frees us from misplaced concerns about its metaphysical basis. Just as you or I can adopt a plan for our day just by willing it, so a legal system’s officials can create or recognize plans for its subjects. To the extent there remains an issue, however, it is not clear that the notion of planning itself offers any deeper explanation. To begin with, planning, whether by an individual or a group, involves setting rules with the aim of achieving certain ends. So the ontology of plans folds into and becomes part of the more general ontology of rules on which Hart was rightly focused. Second, it is unclear whether the mechanics of law are accurately captured under the label of planning (is the law against theft, for example, to be thought of as a plan that people not deprive others of their property?—a somewhat implausible reading of the relevant injunction—or is the planning element exhausted by the decision to create the prohibition, in which case the law is not the plan). Nonetheless, Shapiro’s account helpfully reminds us that the theoretical complexity of law as a social kind does not render implausible an understanding of its foundation based in the everyday actions of its agents. In this he joins Hart.

It is an important feature of Hart’s account that the rule of recognition is an official custom, and not a standard necessarily shared by the broader community. If the imperativalists’ picture of the political system was pyramidal power, Hart’s is more like Weber’s rational bureaucracy. Law is normally a technical enterprise, characterized by a division of labor. Ordinary subjects’ contribution to the existence of law may therefore amount to no more than passive compliance, and in an extreme case perhaps less than this. Thus, Hart’s necessary and sufficient conditions for the existence of a legal system are that

those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and…its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials. (1961 [2012: 116])

And this division of labor is not a normatively neutral fact about law; it is politically charged, for it sets up the possibility of law becoming remote from the life of a society, a hazard to which Hart is acutely alert (1961 [2012: 117]; cf. Waldron 1999 and Green 2008).

Although Hart introduces the rule of recognition through a speculative anthropology of how it might emerge in response to deficiencies in a customary social order, he is not committed to the view that law is a cultural achievement. To the contrary, the idea that legal order is always a good thing, and that societies without it are deficient, is a familiar element of many anti -positivist views, beginning with Henry Maine’s criticism of Austin on the ground that his theory would not apply to certain Indian villages. The objection embraces the error it seeks to avoid. It imperialistically assumes that it is always a bad thing to lack law, and then makes a dazzling inference from ought to is: if it is good to have law, then each society must have it, and the concept of law must be adjusted to show that it does. If one thinks that law is a many splendored thing, one will be tempted by a very wide understanding of law, for it would seem improper to charge others with missing out. Positivism releases the harness. Law is a distinctive form of political order, not a moral achievement, and whether it is necessary or even useful depends entirely on its content and context. Societies without law may be perfectly adapted to their environments, missing nothing.

A positivist account of the existence and content of law, along any of the above lines, offers a theory of the validity of law in one of the two main senses of that term (see Harris 1979: 107–111). Kelsen says that validity is the specific mode of existence of a norm. In this sense a valid law is one that is systemically valid in the jurisdiction—it is part of the legal system, and identified as such by virtue of its dependence on the system’s social sources. The idea is distinct from that of validity as moral propriety, i.e., a sound justification for respecting the norm. For the legal positivist, this depends on the norm’s merits. One indication that these senses differ is that one may know that a society has a legal system, and know what its laws are, without having any idea whether they are morally justified. For example, one may know that the law of ancient Athens included the punishment of ostracism without knowing whether it was justified, because one does not know enough about its effects, about the social context, and so forth.

No legal positivist argues that the systemic validity of law establishes its moral validity , i.e., that it should be obeyed by subjects or applied by judges. Even Hobbes, to whom this view is sometimes ascribed, required that law actually be able to keep the peace, failing which we owe it nothing. Bentham and Austin, as utilitarians, hold that such questions always turn on the consequences, and both acknowledge that disobedience is therefore sometimes fully justified. Kelsen insists that “The science of law does not prescribe that one ought to obey the commands of the creator of the constitution” (1960 [1967: 204]). Hart believes that law may generate a prima facie duty to obey, grounded in but also limited by fairness—so there is no obligation to unfair or pointless laws (Hart 1955: 185–186). Raz goes further still, arguing that there isn’t even a prima facie duty to obey the law, not even in a just state (Raz 1979 [2009: 233–249]). The peculiar accusation that positivists believe the law is always to be obeyed is without foundation. Indeed, Hart’s own view is that an overweening deference to law consorts more easily with theories that imbue it with moral ideals, permitting

an enormous overvaluation of the importance of the bare fact that a rule may be said to be a valid rule of law, as if this, once declared, was conclusive of the final moral question: “Ought this law to be obeyed?” (Hart 1958: 75)

The most influential criticisms of legal positivism all flow, in one way or another, from the suspicion that it fails to give morality its due. A theory that insists on the facticity of law seems to contribute little to our understanding that law has important functions in making human life go well, that the rule of law is a prized ideal, and that the language and practice of law is highly moralized. Accordingly, positivism’s critics maintain that the most important features of law are not to be found in its source-based character, but in law’s capacity to advance the common good, to secure human rights, or to govern with integrity.

It is beyond doubt that moral and political considerations bear on legal philosophy. As Finnis says, the reasons we have for establishing, maintaining or reforming law include moral reasons, and these reasons therefore shape our legal concepts (1980 [2011: 266–273] and 1996: 204). But which concepts? If one accepts, as Finnis does, that the existence and content of law can be identified without recourse to moral argument, and that “human law is artefact and artifice; and not a conclusion from moral premises” (1996: 205), it becomes hard to see how the natural law theory he develops rivals rather than accommodates the truth of legal positivism (see Gardner 2001, 225–227). This vitiates also Lon Fuller’s criticisms of Hart (Fuller 1958 and 1964). Fuller has two main points. First, he thinks that it isn’t enough for a legal system to rest on customary social rules, since law could not guide behavior without also being at least minimally clear, consistent, public, prospective and so on—that is, without exhibiting to some degree those virtues collectively called “the rule of law”. It suffices to note that this is consistent with law being source-based. Even if moral properties were identical with, or supervened upon, these rule-of-law properties, they do so in virtue of their rule-like character. Whatever virtues inhere in or follow from clear, consistent, prospective, and open practices can be found not only in law but in all other social practices with those features, including custom and positive morality. And such virtues, if they exist, are minor: there is little, if anything, to be said in favor of a clear, consistent, prospective, public and impartially administered system of racial segregation, for example. Fuller’s second worry is that if law is a matter of fact, then we are without an explanation of the duty to obey. He asks how “an amoral datum called law could have the peculiar quality of creating an obligation to obey it” (Fuller 1958: 656). One possibility he neglects is that it doesn’t. But even if Fuller is right in his unargued assumption, the “peculiar quality” whose existence he doubts is a familiar feature of many practices. Compare promises: whether a society has a practice of promising, and what someone has promised to do, are matters of social fact. Yet promising creates moral obligations of performance or compensation. An “amoral datum” may indeed figure, together with other premises, in a sound argument to moral conclusions.

While Finnis and Fuller’s views are thus compatible with the positivist thesis, the same cannot be said of Ronald Dworkin’s important works (Dworkin 1978, 1986 and 2011). Positivism’s most influential critic rejects the theory on every conceivable level. He denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of political organization, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects. Coercion must not be deployed, he claims,

except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified. (Dworkin 1986: 93)

A society has a legal system only when, and to the extent that, it honors this ideal, and its law is the set of all considerations that the courts of such a society would be morally justified in applying, whether or not those considerations are determined by any source. To identify the law of a given society we must always engage in moral and political argument, for the law is whatever requirements are consistent with an interpretation of its legal practices that shows them to be best justified in light of this animating ideal. In addition to these philosophical considerations, Dworkin invokes two features of the phenomenology of judging, as he sees it. He finds deep controversy among lawyers and judges about how important cases should be decided, and he finds diversity in the considerations that they hold relevant to deciding them. The controversy suggests to him that law cannot rest on an official consensus, and the diversity suggests that there is no single social rule that validates all relevant reasons, moral and non-moral, for judicial decisions.

Dworkin’s rich and complex arguments attracted various lines of reply from positivists. One response denies the relevance of the phenomenological claims. Controversy is a matter of degree, and a consensus-defeating amount of it is not proved by the existence of adversarial argument in the high courts, or indeed in any courts. As important is the broad range of settled law that gives rise to few doubts and which guides social life outside the courtroom (see Leiter 2009). As for the diversity argument, so far from being a refutation of positivism, this is an entailment of it. Positivism identifies law, not with all valid reasons for decision, but only with the source-based subset of them. It is no part of the positivist claim that the rule of recognition tells us how to decide cases, or even identifies all relevant reasons for a decision. Positivists accept that moral, political or economic considerations are properly operative in legal decisions, just as linguistic or logical ones are. Modus ponens holds in court as much as outside, but not because it was enacted by the legislature or decided by the judges, and the fact that there is no social rule that validates both modus ponens and also the Municipalities Act is true but irrelevant. The authority of principles of logic (or morality) is not something to be explained by legal philosophy; the authority of acts of Parliament must be; and accounting for the difference is a central task of the philosophy of law.

Other positivists respond differently to Dworkin’s phenomenological points, accepting their relevance but modifying the theory to accommodate them. So-called “inclusive positivists” (e.g., Soper, Lyons, Coleman, Waluchow (to whom the term is due), Kramer and Himma) argue that the merit-based considerations may indeed be part of the law, if they are explicitly or implicitly made so by source-based considerations. For example, Canada’s constitution explicitly authorizes for breach of Charter rights, “such remedy as the court considers appropriate and just in the circumstances”. In determining which remedies might be legally valid, judges are thus expressly told to take into account their morality. And judges may develop a settled practice of doing this whether or not it is required by any enactment; it may become customary practice in certain types of cases. Reference to moral principles may be implicit in the web of judge-made law, for instance in the common law principle that no one should profit from his own wrongdoing. Such moral considerations, inclusivists claim, are part of the law because the sources make them so , and thus Dworkin is right that the existence and content of law might turn on its merits, and wrong only in his explanation of this fact. Legal validity depends on morality, not because of the interpretative consequences of some ideal about how the government may use force, but because that is one of the things that may be customarily recognized as an ultimate determinant of legal validity. It is the sources that make the merits relevant.

To understand and assess this response some clarifications are needed. First, it is not plausible to hold that the merits are relevant to a judicial decision only when the sources make them so. It would be odd to think that justice is a reason for decision only because some source directs an official to decide justly. It is of the nature of justice that it properly bears on certain controversies. In legal decisions, especially important ones, moral and political considerations are present of their own authority; they do not need sources to propel them into action. On the contrary, we expect to see a source—a statute, a decision, or a convention—when judges are constrained not to appeal directly to the merits (see Raz 2004a). Second, the fact that there is moral language in judicial decisions does not establish the presence of moral tests for law, for sources come in various guises. What sounds like moral reasoning in the courts is sometimes really source-based reasoning. For example, when the Supreme Court of Canada says that a publication is criminally “obscene” only if it is harmful, it is not applying J.S. Mill’s harm principle, for what that court means by “harmful” is that which is regarded by the community as degrading or intolerable. That is a source-based test, not a moral one. This is just one of many appeals to positive morality, i.e., to the moral customs actually practiced by a given society, and no positivist denies that positive morality may be a source of law. Moreover, it is important to remember that law is dynamic and that even a decision that does apply morality itself becomes a source of law, in the first instance for the parties and possibly for others as well. Over time, by the doctrine of precedent where it exists or through the gradual emergence of an interpretative convention where it does not, this gives a factual edge to normative terms. Thus, if a court decides that money damages are in some instances not a “just remedy” then this fact will join with others in fixing what “justice” means for these purposes. This process may ultimately detach legal concepts from their moral analogs (thus, legal “murder” may require no intention to kill, legal “fault” no moral blameworthiness, an “equitable” remedy may be manifestly unfair, etc.). Bearing in mind these complications, however, there undeniably remains a great deal of moral reasoning in adjudication. Courts are often called on to decide what would reasonable, fair, just, cruel, etc. by explicit or implicit requirement of statute or common law, or because this is the only proper or intelligible way to decide. When the law itself licenses such reasoning should we understand it, with the inclusive positivist, to incorporate moral standards, or, as per the views of their rival, the exclusive positivist, only to make reference to moral principles?

Exclusive positivists offer two main arguments for stopping at social sources. The first is due to Raz (1994: 201–37) and has to do with law’s role in practical reasoning (for criticism see Perry 1989, Waluchow 1994, Coleman 2001, Dworkin 2002, Kramer 2004 and Himma 2019). Although law does not necessarily have legitimate authority, Raz suggests it lays claim to it, and can intelligibly do so only if it is the kind of thing that could have legitimate authority. It may fail, therefore, in certain ways only, for example, by being unjust, pointless, or ineffective. But law cannot fail to be a candidate authority, for it is constituted in that role by our political practices. According to Raz, practical authorities mediate between subjects and the ultimate reasons for which they should act. Authorities’ directives should be based on such reasons, and they are justified only when compliance with the directives makes it more likely that people will comply with the underlying reasons that apply to them. But they can do that , he suggests, only if is possible to know what the directives require independent of appeal to those underlying reasons. If law were to incorporate the moral standards to which it refers it would no longer be able to play this mediating role; identifying the law would require identifying the reasons underlying it. Because the nature of law is partly determined by its role in giving practical guidance, Raz concludes, there is theoretical reason for stopping at source-based considerations.

The second argument challenges an underlying idea of inclusive positivism, what we might call the Midas Principle. “Just as everything King Midas touched turned into gold, everything to which law refers becomes law …” (Kelsen 1945 [1961: 161]). Kelsen thought that it followed from this principle that

It is…possible for the legal order, by obliging the law-creating organs to respect or apply certain moral norms or political principles or opinions of experts to transform these norms, principles, or opinions into legal norms, and thus into sources of law. (Kelsen 1945 [1961: 132])

(Though he regarded this transformation as effected by a sort of tacit legislation.) If sound, the Midas Principle holds in general and not only with respect to morality, as Kelsen makes clear. Suppose then that the Income Tax Act penalizes overdue accounts at 8% per annum. In a relevant case, an official can determine the content of a legal obligation only by calculating compound interest. Does this make mathematics part of the law? A contrary indication is that it is not subject to the rules of change in a legal system—neither courts nor legislators can repeal or amend the law of commutativity. The same holds of other social norms, including the norms of foreign legal systems. A conflict-of-laws rule may direct a Canadian judge to apply Mexican law in a Canadian case. The conflicts rule is obviously part of the Canadian legal system. But the rule of Mexican law is not, for although Canadian officials can decide whether or not to apply it, they can neither change it nor repeal it, and the best explanation for its existence and content makes no reference to Canadian society or its political system. In like manner, moral standards, logic, mathematics, principles of statistical inference, or English grammar, though all properly applied in cases, are not themselves the law, for legal organs have applicative but not creative power over them. The inclusivist thesis is actually groping towards an important, but different, truth. Law is an open normative system (Raz 1975 [1990: 152–154]): it adopts and enforces many other standards, including moral norms and the rules of social groups. There is no warrant for adopting the Midas Principle to explain how or why it does this.

As noted above, Dworkin’s arguments against positivism depend upon claims about the phenomenology of adjudication and about the constraints imposed on jurisprudence by legal disagreement. Mark Greenberg’s recent work takes as its starting point many of Dworkin’s claims, but his conclusions are in several ways more radical (see Greenberg 2004 and 2014). Greenberg’s central argument against positivism is methodological: no one, he suggests, would deny that the content of the law depends at least in part upon social facts. However, the question of which facts—the semantic content or intended effect of legislation, for example—cannot be answered by reference to further of the same: “law practices…cannot determine their own relevance” (2004: 185). Appeal must therefore be made to other kinds of considerations—for Greenberg, considerations about the moral import of our social practices. It is positivism’s error to suggest that law could be practice-based all the way down. That the content of law depends upon social sources, however, is a truth borne out by law in general, as opposed to being established within local legal practices. There is a categorical difference between the validity of the sources thesis—a truth about law as a kind of social practice—and the claim that in the UK, for example, statute renders it is illegal to drive above 70 miles an hour on the motorway. In this way the former explains the latter without circularity, and without the need for appeal to morality.

4. Law and Its Merits

It may clarify the philosophical stakes in legal positivism by comparing it to a number of other theses with which it is sometimes wrongly identified, and not only by its opponents (see also Hart 1958, Füßer 1996, and Schauer 1996).

Law does not necessarily satisfy the conditions by which it is appropriately assessed (Lyons 1984: 63; Hart 1961 [2012: 185–186)]. Law should be just, but it may not be; it should promote the common good, but sometimes it doesn’t; it should protect moral rights, but it may fail miserably. This we may call the moral fallibility thesis. The thesis is correct, but it is not the exclusive property of positivism. Aquinas accepts it, Fuller accepts it, Finnis accepts it, and Dworkin accepts it. Only a crude misunderstanding of ideas like Aquinas’s claim that “an unjust law seems to be no law at all” might suggest the contrary. Law may have an essentially moral character and yet be morally deficient. Even if every law always does one kind of justice (formal justice; justice according to law), this does not entail that it does every kind of justice. Even if every law has a prima facie claim to be applied or obeyed, it does not follow that it has such a claim all things considered. The gap between these partial and conclusive judgments is all a natural law theory needs to accommodate the fallibility thesis. It is sometimes said that positivism gives a more secure grasp on the fallibility of law, for once we see that it is a social construction we will be less likely to accord it inappropriate deference and better prepared to engage in a clear-headed moral appraisal of the law. This claim appealed to several positivists, including Bentham and Hart. But while this might follow from the truth of positivism, it cannot provide an independent argument for it. If law has an essentially moral character then it is obfuscating, not clarifying, to describe it as a source-based structure of governance.

At one point, Hart identifies legal positivism with

the simple contention that it is no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so. (1961 [2012: 185–186])

Many other philosophers, encouraged also by the title of Hart’s famous essay, “Positivism and the Separation of Law and Morals”, (1958) treat the theory as the denial that there is a necessary connection between law and morality—they must be in some sense “separable” even if not in fact separate (Coleman 1982). The separability thesis is generally construed so as to tolerate any contingent connection between morality and law, provided only that it is conceivable that the connection might fail. Thus, the separability thesis is consistent with all of the following: (i) moral principles may be part of the law; (ii) law is usually, or even always in fact, valuable; (iii) the best explanation for the content of a society’s laws includes reference to the moral ideals current in that society; and (iv) a legal system cannot survive unless it is seen to be, and thus in some measure actually is, just. All four claims are counted by the separability thesis as contingent connections only; they do not hold of all possible legal systems—they probably don’t even hold of all historical legal systems. As merely contingent truths, it is said that they do not affect the concept of law itself. If we think of the positivist thesis this way, we might interpret the difference between exclusive and inclusive positivism in terms of the scope of the modal operator:

(EP) It is necessarily the case that there is no connection between law and morality.
(IP) It is not necessarily the case that there is a connection between law and morality.

In reality, however, legal positivism is not to be identified with either thesis: both are false. There are many necessary “connections”, trivial and non-trivial, between law and morality. As John Gardner notes, legal positivism takes a position on only one of them; it rejects any dependence of the existence of law on its merits (Gardner 2001). And with respect to this dependency relation, legal positivists are concerned with much more than the relationship between law and morality , for in the only sense in which they insist on a separation of law and morals they must insist also—and for the same reasons—on a separation of law and economics.

To exclude this dependency relation, however, is to leave intact many other interesting possibilities. For instance, it is possible that moral value derives from the existence of law (Raz 1975 [1990: 165–170]). If Hobbes is right, any order is better than chaos and in some circumstances order may be achievable only through positive law. Or perhaps in a Hegelian way every existing legal system expresses deliberate governance in a world otherwise dominated by chance; law is the spirit of the community come to self-consciousness. Notice that these claims are consistent with the fallibility thesis, for they do not deny that these supposedly good things might also bring evils, such as too much order or the will to power. Perhaps such derivative connections between law and morality are thought innocuous on the ground that they show more about human nature than they do about the nature of law. The same cannot be said of the following necessary connections between law and morality, each of which goes to the heart of our concept of law (on which see further Green 2008):

(1) Necessarily, law deals with moral matters.

Kelsen writes,

Just as natural and positive law govern the same subject-matter, and relate, therefore, to the same norm-object, namely the mutual relationships of men—so both also have in common the universal form of this governance, namely obligation . (Kelsen 1928 [1973: 34])

This is a matter of the content of all legal systems. Where there is law there is also morality, and they regulate the same matters by analogous techniques. Of course to say that law deals with morality’s subject matter is not to say that it does so well, and to say that all legal systems create obligations is not to endorse the duties so created. This notion is distinct from Hart’s “minimum content” thesis according to which there are basic rules governing violence, property, fidelity, and kinship that any legal system must encompass if it aims at the survival of social creatures like ourselves (Hart 1961 [2012: 193–200]). Hart regards this as a matter of “natural necessity” and in that measure is willing to qualify his endorsement of the separability thesis. But even a society that prefers national glory or the worship of gods to survival will charge its legal system with the same tasks its morality pursues. Unlike the rules of a health club, law has broad scope and reaches to the most important things in any society, whatever they may be. Indeed, our most urgent political worries about law and its claims flow from just this capacity to regulate our most vital interests, and law’s wide reach must figure in any argument about its legitimacy. (A distinct argument, developed most fully by Raz (1994) and Gardner (2012a), is that law not only occupies itself with moral matters but makes moral claims over us. For criticism see Kramer 1999: 83–9; Duarte d’Almeida and Edwards 2014.)

(2) Necessarily, law is justice-apt.

In view of the normative function of law in creating and enforcing obligations and rights, it always makes sense to ask whether law is just, and where it is found deficient to demand reform. Legal systems are therefore the kind of thing that is apt for appraisal as just or unjust. This is a significant feature of law. Not all human practices are justice-apt. It makes no sense to ask whether a certain fugue is just or to demand that it become so. The musical standards of fugal excellence are pre-eminently internal—a good fugue is a good example of its genre; it should be melodic, interesting, inventive etc.—and the further we get from these internal standards of excellence the more diverse evaluative judgments about it become. While some formalists flirt with similar ideas about law, this seems inconsistent with law’s place amongst human practices. Even if law has internal standards of merit—virtues uniquely its own that inhere in its law-like character—these cannot preclude or displace its assessment on independent criteria of justice. A fugue may be at its best when it has all the virtues of fugacity; but law is not best when it excels in legality; law must also be just. A society may therefore suffer not only from too little of the rule of law, but also from too much of it. This does not presuppose that justice is the only, or even the first, virtue of a legal system. It means that our concern for its justice as one of its virtues cannot be side lined by any claim of the sort that law’s purpose is to be law, to its most excellent degree. Law stands continuously exposed to demands for justification, and that too shapes its nature and role in our lives and culture.

(3) Necessarily, law is morally risky.

It is a curious fact that almost all theories that insist on the essentially moral character of law take law’s character to be essentially good. The gravamen of Fuller’s philosophy is that law is essentially a moral enterprise, made possible only by a robust adherence to its own inner morality. The thought that the law might have an inner immorality never occurred to him. But, as Hart recognized, where there is “a union of primary and secondary rules”—that is to say, wherever there is law—moral risks emerge as a matter of necessity. There are not only newly efficient forms of oppression, unavailable in communities with more diffuse forms of social organization, there are also new vices: the possible alienation of community and value, the loss of transparency, the rise of a new hierarchy, and the possibility that some who should resist injustice may be bought off by the goods that legal order brings. Although law has its virtues, it also necessarily risks certain vices, and this marks a connection between law and morality of a reverse kind.

These three theses establish connections between law and morality that are both necessary and highly significant. Each of them is consistent with the positivist thesis that the existence and content of law depends on social facts, not on the law’s merits. Each of them contributes to an understanding of the nature of law. The once-popular idea that legal positivism insists on the separability of law and morality is therefore significantly mistaken.

The preceding theses together establish that law is not value-neutral. Although some lawyers regard this idea as a revelation (and others as provocation) it is in fact banal. The thought that law could be value neutral does not even rise to falsity—it is incoherent. Law is a normative system, promoting certain values and repressing others. Law is not neutral between victim and murderer or between owner and thief. When people complain of the law’s lack of neutrality, they are in fact voicing very different aspirations, such as the demand that it be fair, just, impartial, and so forth. A condition of law’s achieving any of these ideals is that it is not neutral in either its aims or its effects.

Positivism is however sometimes more credibly associated with the idea that legal philosophy is or should be value-neutral. Kelsen, for example, says, “the function of the science of law is not the evaluation of its subject, but its value-free description” (1960 [1967: 68]) and Hart at one point described his work as “descriptive sociology” (1961 [2012: v]). But a description of what? “Law” is an anthropocentric subject, dependent not merely on our sensory embodiment but also, as its necessary connections to morality show, on our moral sense and capacities. Legal kinds such as courts, decisions, and rules will not appear in a purely physical description of the universe and may not even appear in every social description. (This may limit the prospects for a “naturalized” jurisprudence; though for a defense of the contrary view, see Leiter 1997). Legal positivism, to be sure, is not an “evaluation of its subject”, i.e., an evaluation of the law . And to say that the existence of law depends on social facts does not commit one to thinking that it is a good thing that this is so (nor does it preclude it: see MacCormick 1985 and Campbell 1996). But it does not follow that legal philosophy therefore offers a “value-free description” of its subject. There is a sense, of course, in which every description is value-laden. It selects and systematizes only a subset of the infinite number of facts about its subject. To describe law as resting on customary social rules is to omit many other truths about it including, for example, truths about its connection to the demand for paper or silk. What forms the warrant for our prioritizing the former over the latter? Finnis (1980 [2011: 3–19]) thinks that the only possibility here has to do with the moral reasons we might have for wanting law (that we answer “what?” by answering “why?”) and that the failure of methodological positivism, the failure to achieve a value-free description of the subject, results in the failure of legal positivism. But the question of social significance is not exhausted by our moral register, and especially not only by its positive valence (on which see Dickson 2001). Others point to the notion of conceptual or metaphysical truth as setting the bounds of the question that positivism seeks to answer (for discussion see Raz 2004b). But however these difficult issues are to be resolved, we should not expect legal positivism itself to contribute much. A thesis about the nature of law is not at the same time a thesis about how to understand the nature of law.

It may seem, however, that legal positivism at least requires a stand on the so-called “fact-value” problem. There is no doubt that certain positivists, especially Kelsen, believe this to be so. In reality, positivism may cohabit with a range of views here—value statements may be entailed by factual statements; values may supervene on facts; values may be kinds of fact. Legal positivism requires only that it be in virtue of its facticity rather than its meritoriousness that something is law, and that we can describe that facticity without assessing its merits.

Evaluative argument is, of course, central to the philosophy of law more generally. No legal philosopher can be only a legal positivist. A complete understanding of law requires also an account of what kinds of things could possibly count as the merits of law (must law be efficient or elegant as well as just?); of what role law should play in adjudication (should valid law always be applied?); of what claim law has on our obedience (is there a duty to obey?); and also the more practical questions of what laws we should have and whether we should have law at all. Legal positivism does not aspire to answer these questions (although cf. Murphy 2014: 88–108 for the argument that the theory has important first-order implications for legal practice). Nonetheless, positivism’s claim that the existence and content of law depends only on social facts does give them shape.

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Library of Congress Catalog Data: ISSN 1095-5054

Public International Law: Norms and Sources Essay

Norms of international law, sources of international law, enforcement of international law, works cited.

International laws are rules generally accepted by states or nations to serve as a framework for harmonious international relations. Laws that apply to states are called international public laws, while those that govern conflict between individuals are called private international laws. Norms of international, federal law are based on consistent state practice, opinion Juris , peremptory norms (also referred to as jus cogens ), and codifications or treaties.

Peremptory norms (Jus cogens) are widely accepted principles of international law from which no exemption is allowed. True, there is no universal agreement on precisely what constitutes jus cogens. However, it is generally accepted that jus cogens include a prohibition on all acts of genocide, prohibition on slavery, torture, maritime piracy, and wars of aggression or territorial invasion (Bederman 105).

Opinio Juris sive necessitates simply means an opinion of law or necessity and is the second element in customary international law. Opinio Juris is used alongside state practice (which is more objective) to establish a legal obligation. Opinio Juris is basically a subjective element of belief that state action is carried out of a legal obligation. It means that the effects of a state must not be merely out of political gimmick but rather out of a sense of legal liability. True, it is difficult to prove why a state acted in a certain way. It is even more challenging to determine why it did not work in the first place. Thus, developing a legally binding international law based on the prohibition of practice is impossible (David 57).

A variety of sources are used to provide evidence of the existence of opinion Juris . Such evidence includes government policy, official press releases, official government manuals, international judicial decisions, state ratified treaties, United Nations resolutions, among others. However, these sources only build a logical framework and only apply for customary laws that already have existing norms. It becomes a challenge if a new usual rule emerges.

General principles, common law, international customs, and treaties have been listed under Article 38.1 of the Statute of the International Court of Justice (ICJ) as the primary source of international law. Other causes that have been designated as subsidiary are “judicial decisions and scholarly writings” (Slomanson 80).

National laws can also become international laws by a delegation of federal jurisdiction. A good example is the International Criminal Court (ICC), in which member states have signed a treaty that delegates national sovereignty to supranational tribunals. Therefore sources of international law are diverse and have been influenced by political theories and legal practices (Yun 23).

Most international laws are consent-based, and issues of state sovereignty always come as a priority. Although states can limit such independence by consent when signing treaties or when joining international conventions, they can also easily revoke such consent with no legal repercussions. This is because there is almost no effective mechanism to compel states to comply with treaties they have signed. As a result, international laws and declarations such as the Declaration of Human Rights only remain as idealistic documents. Likewise, more countries continue to flout their obligation with the International Criminal Court. Thus, the reason nations observe international law is not necessarily because they feel obliged under law but instead because of the benefits they get from such acts.

On the international scene, there is no peremptory enforcer of international agreements. International laws are rarely legally binding and can be recanted by states. However, various enforcement mechanisms can be applied by countries either explicitly or implicitly, which guarantee some level of effectiveness (Anthony 58). These enforcement mechanisms are in no way associated with authority, force, or violence. They are instead basic methods that the negotiators apply to encourage compliance. Enforcement methods can be categorized as either positive or negative enforcement mechanisms. Positive enforcement mechanisms involve rewards or incentives which are meant to entice states so they can comply. The incentives can be monetary rewards or can come in the form of socio or federal benefits. On the other hand, harmful enforcement methods are punitive in nature and encourage compliance by threatening or by issuing disincentives.

Negative enforcement tactics include reciprocity, collective action, reparations, and shaming. Reciprocity is a type of enforcement in which one state is certain that if they take measures that offend another state, the other state will retaliate with the same or similar demeanor. Fear of retaliation in equal measure makes countries to think twice about their actions about other states (Frenk 21). If, for example, a country imposes high tariffs on imports from another state, the other state could respond by imposing similar restrictions on the other country’s exports.

Collective action is a measure that several states impose on one country for non-compliance. Economic, social, and political sanctions are the most common forms of punitive collective action. Economic sanctions can be imposed by the United Nations to limit or completely ban importation or exportation of goods by a non-compliant state. Political or social penalties include expulsion or withdrawal of foreign consulates or severing of diplomatic links.

Reparation is an enforcement mechanism based on restorative justice and is common, especially in environmental agreements. Reparations involve some sort of compensation and are usually applied hand in hand with shaming (also known as name and shame). The choice of enforcement mechanism will depend on the situation. Still, most effective agreements apply both positive and negative methods simultaneously in what can be described as a carrot-and-stick manner.

Anthony, Pagden. Application of International Law and Political Thought . New York: Pagden &Thompson Publishers, 2014. Print.

Bederman, David. International Law Frameworks. New York: Foundation Press Publishers, 2015. Print.

David, Harris. Cases and Materials on International Law. California: Sweet & Maxwell Publishers, 2013. Print.

Frenk, Hoffman. The Economics of New International Health Laws. Washington: Rottingen & Wright Publishers, 2011. Print.

Slomanson, William. Fundamental Perspectives of International Law. Boston: Wadsworth Publishers, 2012. Print.

Yun, Michael. The Case of the Optional Protocol to the Convention on Human Rights . Cambridge: Case Law Publishers, 2011. Print.

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Texas’ Immigration Crackdown Recalls Arizona’s Divisive ‘Show Me Your Papers’ Law

The Supreme Court eventually struck down portions of Arizona’s law, which had set off a torrent of fear and anger.

Share full article

Women sit on the ground along a tall border fence.

By Jack Healy

March 19, 2024

The Supreme Court’s decision on Tuesday allowing Texas to arrest and deport migrants resonated deeply in Arizona, which passed its own divisive crackdown against illegal immigration more than a decade ago.

Arizona’s effort, which became known as the “show me your papers” law, set off a torrent of fear and anger after it passed in 2010 and jolted the state’s politics in ways that are still reverberating — offering a lesson of what could lie ahead for Texas.

The law required immigrants to carry immigration documents, and empowered police and sheriffs’ agencies to investigate and detain anyone suspected of being in the country illegally. It made undocumented immigrants fearful to drive or leave their homes. It sparked boycotts and angry protests. A political backlash removed the law’s Republican architect from office. Legal challenges gutted major provisions of the law.

The measure also galvanized a new generation of Latino activists to organize, register voters and run for office, seeding a political movement that has helped to elect Democrats across Arizona and transform a once-reliable Republican state into a purple political battleground.

“It made me realize where I stand in the United States, where my parents stand,” said Valeria Garcia, 21, an undocumented activist who was brought to Arizona from Mexico when she was 4 years old and is now majoring in political science and border studies at Arizona State University. “That was a political awakening.”

Immigration lawyers and immigrant children who grew up under the law, Senate Bill 1070, said it carved pervasive fear and uncertainty into Latino communities across Arizona. Some families hurriedly left the state. Some stopped going to work.

“It really did cause a chilling effect across the state,” said Delia Salvatierra, an immigration lawyer in Phoenix.

The Supreme Court struck down portions of Arizona’s law in a 2012 decision declaring that the federal government, and not states, had the power to set immigration policy. In 2016, voters in Maricopa County ousted Sheriff Joe Arpaio, the hard-line opponent of illegal immigration who had been a strong advocate of a state crackdown.

Now, as the number of illegal border crossings hits record levels, Republicans who control the Arizona State Legislature have again pressed for strict new measures. Earlier this year, they passed the “Arizona Border Invasion Act,” a bill similar to the Texas law that would have allowed local and state authorities to arrest and deport migrants who cross into Arizona illegally. It was vetoed by Gov. Katie Hobbs, a Democrat.

Some who lived through the earlier law say the scars are still there. Denise Garcia, who was born in Phoenix to parents from Chihuahua, Mexico, was still in elementary school when the law went into effect. She vividly remembers how her family changed up their routines to hide from the authorities and felt scared to leave home. She said several immigrant friends from her neighborhood moved back to Mexico. She said life felt like a blur of fear.

“Are my parents going to be deported?” she said. “Am I going to come home to an empty house?”

Jack Healy is a Phoenix-based national correspondent who focuses on the fast-changing politics and climate of the Southwest. He has worked in Iraq and Afghanistan and is a graduate of the University of Missouri’s journalism school. More about Jack Healy

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The Oxford Handbook of Law and Economics: Volume 1: Methodology and Concepts

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22 Law and Social Norms

Emanuela Carbonara, Associate Professor, Department of Economics, University of Bologna

Published: 10 May 2017
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Legal norms are often seen as a means to regulate behaviour when neither self-interest nor social norms produce the desired behaviour in individuals. This suggests, on the one hand, that the law should regulate those areas in which social norms do not exist and provide support and extra enforcement in those areas where social norms exist. It also suggests on the other hand that there seems to be no questioning of the intrinsic efficiency and fairness of existing social norms. This article first looks at the genesis of social norms and the mechanism of their enforcement. This allows a closer inspection of the efficiency and fairness concepts. It then considers the impact that introducing legal norms has in contexts in which social norms already exist and in those that social interaction left unregulated. The main issue here is that the social norms prevailing at some historical moment may be just an equilibrium among multiple equilibriums. Given many possible equilibriums, we need to explain why and how one equilibrium is selected and others are rejected. The scholarship on social norms emphasizes that expressive acts in law can select the equilibrium. Legal norms seemingly reinforce existing social norms, bending them towards the law when discrepancy exists and favouring their creation where social norms do not exist. However, legal regulation can also destroy existing social norms (crowding out) or it can be defeated by them (legal backlash and countervailing effects).

22.1 Introduction

Legal norms are often seen as a means to regulate individuals when self-interest does not produce the desired behavior as measured by efficiency and fairness. 1 As Oliver Wendell Holmes, Jr. (1897) posited, laws are for the “bad man,” a man “who cares nothing for an ethical rule which is believed and practised by his neighbours.” Then, laws should matter when neither self-interest nor social norms provide the right incentives to individuals.

This latter statement paves the way for a twofold argument. On the one hand, it seems to suggest that the law should regulate those areas in which social norms do not exist and provide support and extra enforcement in those areas where social norms exist. On the other hand, there seems to be no questioning of the intrinsic efficiency and fairness of existing social norms.

In this chapter we discuss both issues. First, we look at the genesis of social norms and the mechanism of their enforcement. This allows a closer inspection of the efficiency and fairness concepts. In the study of social norms, “efficiency” has several standard meanings, notably Pareto efficiency, cost–benefit efficiency, and welfare maximization. “Unfairness” also has several possible meanings, but the most frequently discussed today is discrimination based on race, ethnicity, gender, or sexual orientation. In some circumstances, social norms are efficient and fair, requiring no regulation so long as private and criminal law operate in the background. In other circumstances, unregulated social norms waste resources or discriminate against individuals or groups. In principle, regulation can correct these normative failures. In practice, regulations correct failures in social norms or worsen them depending on the politics of regulation—who has power, and who benefits from efficiency and fairness. This leads us to consider the impact that introducing legal norms has in contexts in which social norms already exist and in those that social interaction has left unregulated.

The main issue here is that the social norms prevailing at some historical moment may be just an equilibrium among multiple equilibriums. Given many possible equilibriums, we need to explain why and how one equilibrium is selected and others are rejected. A complete model of law and social norms encompasses the equilibriums and the selection mechanism. As we will show, the scholarship on social norms emphasizes that expressive acts in law can select the equilibrium. Legal norms seemingly reinforce existing social norms, bending them towards the law when discrepancy exists and favoring their creation where social norms do not exist. However, legal regulation can also destroy existing social norms (crowding out) or it can be defeated by them (legal backlash and countervailing effects).

The law and economics analysis of social norms deals with individual preferences and the way in which these are formed. Generally, in other areas of applied economics, individual preferences are given and stable. Social norms instead depend on internalized values, not just external threats. Internalizing a social norm modifies a person’s commitment to values. Commitments to values affect personal identity, and personal identity affects a person’s understanding of his self-interest. Thus, in order to explain how social norms work, a good theory should look at how people develop “preferences,” analyzing socialization, internalization, and identity.

22.2 Conforming with Social Norms: Coordination, Sanctions, Internalization

Why do social norms arise and why do people conform? In the law and economics literature, “social norm” sometimes refers to any regularity in the behavior of people, regardless of its cause. 2 However, the phrase is often used more restrictively. Most scholars, in fact, restrict the phrase “social norms” to behavioral regularities with particular causes. 3

We are going to identify three causes of conformity: a) coordination in a multiple-equilibriums environment; b) fear of non-legal sanctions; c) internalization.

First, some people conform to social norms because they gain from doing the same thing as others. Conforming to the norm serves their interests so long as other people also conform to the norm, which implies that conforming is a Nash equilibrium. For example, most people will drive on the left-hand side of the road if they believe that others will also drive on the left-hand side of the road. In these circumstances, game theorists often call the behavior a “convention.” Thus Young (1993) defines a “convention” as a “pattern of behaviour that is customary, expected and self-enforcing. Everyone conforms, everyone expects others to conform, and everyone wants to conform given that everyone else conforms.”

The second reason for conforming to a social norm is fear of a social sanction. Social norms typically require some individuals to bear costs or forgo benefits. Absent sanctions for non-conformity, the dominant strategies favor violating the social norm (e.g. prisoner’s dilemma-like situations). Many social norms are obligations backed by non-legal sanctions. When violating a social norm serves immediate self-interest, fear of non-legal sanctions can tip the balance of self-interest in favor of conforming. The behavioral regularity described by the social norm may depend on the effective threat of social sanctions.

By analogy with the “imperative theory of law,” according to which a legal rule is an obligation backed by a state sanction, Cooter (2000) defines a social norm as an “obligation backed by a non-legal sanction.” The word “non-legal” in this context refers to the nature of the sanction (like shaming, stigma, shunning, criticizing, refusal to deal) and the kind of people enforcing it (private citizens).

Sanctions are necessary to sustain social norms that are not pure conventions that benefit everyone. Pure conventions help people coordinating and are self-enforcing. The fact that not all social norms are pure conventions explains why people publicly uphold some norms and privately disobey them when unobserved. 4 In his study of the Ik traditions and habits, Turnbull (1972) reports that members of this ethnic group, living in the northeastern mountains of Uganda and suffering from extensive famine, often tried to elude situations where compliance with social norms of reciprocity was expected from them.

Coordination and fear of non-legal sanctions are two reasons why people conform to social norms. In “The Grammar of Society: The Nature and Dynamics of Social Norms,” the philosopher and psychologist Cristina Bicchieri combines these reasons into a definition of social norms. Social norms are “conditional rules” such that individuals prefer to conform when they expect a sufficiently large proportion of the population to conform (coordination or “empirical expectation”), and they believe that a sufficiently large proportion of the population might sanction them if they don’t (fear of sanction or “normative expectation”). The empirical expectation of conformity is the belief that a behavioral regularity exists, and the normative expectation is the belief that social sanctions enforce it.

Coordination and the fear of sanctions are not the only reasons why people conform to social norms. The third cause of conforming to a social norm is internalization of the obligation. Even without fear of legal sanctions, some people do their duty from conviction. They will sacrifice self-interest to do their duty as they perceive it. In economic language, people who internalize an obligation acquire a preference to conform to it. They are willing to pay to conform to a social obligation, just as they are willing to pay for a boat ride on a lake. Performing an internalized duty is like consumption in that a person will pay to do it. Conversely, violating an internalized duty is like work in that a person must be paid to do it.

Coordination, sanction, and internalization are three causes of behavioral regularities in social norms. A definition of “social norms” must comprehend all three causes in order to encompass the models in law and economics. Thus we could define a “perfect social norm” as a behavioral regularity caused by coordination, non-legal sanctions, and internalization. However, we will not labor over the definition. Economics is more concerned with causes than meanings, and so are we. Having explained three causes of individual behavior that sustain social norms, we now turn to how social norms arise and to their efficiency.

22.3 The Efficiency and Fairness of Social Norms

We have just seen that a convention can be a social norm, whereas a social norm is not necessarily a convention, as it may not be self-enforcing.

This raises two different issues. First, how are social norms created and what legitimizes them? Second, are social norms always efficient? These two issues can hardly be separated. Many social norms develop from conventions or religious imperatives. As Sugden (1989) effectively explains, conventions typically spread because of past experience, common background, and analogy. There is no guarantee that the actions that allowed coordination in the past are the most efficient (whichever definition of efficiency we deploy). Most decisions are made in a backward-looking, myopic approach. One example should clarify. Sugden (1989) reports that in a village on the Yorkshire coast, people shared driftwood scattered after a storm following a first-on rule. There is, however, no historical account of the reasons that led to its adoption and, even if the first-on rule satisfies some efficiency criteria (it is indeed a very cheap way to establish property rights over valuable objects), it is just one of many possible rules, some of which may be preferable in some respects. In theory homo oeconomicus is supposed to follow a forward-looking, rational expectation approach. Evidence seems to indicate that this does not happen in practice. On the contrary, backward-looking decisions typically imply systematic errors and may lead to the adoption of a rule, which would then be enforced and kept thereafter. The costs of changing it would be perceived to be too high compared to the benefits, especially in coordination games. This means that, in a multiple equilibriums setting, there is not only the problem of equilibrium selection but also a potential “path-dependency trap,” due to the costs of moving from an equilibrium to another. 5

Similar considerations can be made regarding the fairness of social norms. Many social conventions have turned into strict social norms that limit the rights and the dignity of political and ethnic minorities in conflicts. 6 The interplay of honor, stigma, and the law is often responsible for the perpetuation of such rules. Benabou and Tirole (2011) show how such forces, together with the expressive power of the law, may explain why people resist legal changes that would enhance efficiency and lead to more “effective” laws. Societies tend to renounce cruel and unusual punishments, even if potentially very effective, to express the value they attribute to being civilized. Similar forces may explain the resilience to change discriminatory norms, as this might undermine the current design of institutions or reduce job availability for people belonging to dominant social groups. For instance, an ill-placed attention to “family issues” may explain the resistance to changing social norms that limit freedom and career possibilities for women.

Given path-dependency and resilience, how do social norms change and what drives their evolution? Often, societies seem to lack a mechanism to correct for “bad” social norms. Changes follow great, unexpected, and possibly traumatic historical events. There is, however, the possibility for direct intervention, conceivably paternalistic in nature, by the lawmaker, and we are going to analyze it.

22.4 Changing Social Norms

The change in social norms operates through coordination, sanction, and internalization.

First we discuss change through coordination, as with a pure convention. The essence of a coordination problem is selecting among multiple equilibriums. When a coordination problem is solved for the first time, a social norm emerges. When people change the coordination equilibrium, a social norm changes. As explained, individuals will conform to a coordination equilibrium if they believe that others will conform. Thus creating or changing a coordination equilibrium requires making enough people believe that others will conform to the new social norm.

An entrepreneur, according to Kirzner, is someone who knows future prices, so he can make more profitable investments than others. 7 Similarly, a “norm entrepreneur” ( Ellickson, 2001 ) knows the future coordination equilibrium. Norm entrepreneurs gain by receiving social esteem and empowerment from others. Since a norm entrepreneur foresees the future, he can induce others to believe that they will gain from complying with a new norm.

For coordination norms, the entrepreneur induces people to select a new equilibrium. This possibility implies the existence of multiple equilibriums. The ease of selecting a different equilibrium depends on disequilibrium dynamics. Change from one norm to another is particularly fast when the old norm is unstable and the new norm is stable. Consequently, a disturbance that moves people away from the unstable norm will cause them to converge towards the stable norm.

Sunstein (1996) considers convergence to one stable norm as a “bandwagon” or “cascade” effect. People hide their true preferences for fear of getting a social sanction if their belief is different from the social norm. Carbonara et al. (2008) consider instead a theory encompassing more possible outcomes, and explaining a wider variety of possible reactions to legal innovation. Instead of converging to a single social norm, another possibility is that different groups of people converge to different social norms. Here there are different stable equilibriums, and individuals in one group proceed towards one of them, while individuals in another group proceed towards another one. Individuals cluster around different beliefs and multiple social norms coexist in the community, one for each cluster. At the limit, society may end up very polarized, with people clustering around opposite social norms.

We have been discussing cases where change to a new social norm is easy because the initial social norm is unstable. Conversely, change from an old norm to a new one is difficult when the old norm is stable. Given a stable equilibrium, small disturbances have no lasting effect—the system departs temporarily from the old equilibrium and subsequently returns to it. Thus social norms are often described as “sticky” or “conservative.” Changing a sticky norm requires a large disturbance that takes the system far from the stable region.

The intervention of the norm entrepreneur would be particularly useful when either many competing social norms regulate behavior in a given society (for example, because society is fragmented into several groups, often in conflict) or when a unique, inefficient, and stable social norm exists.

A social norm can be changed also by changing a social sanction. In many economic models, the threat of sanctions determines the level of conformity to the norm. To illustrate, assume that individuals must decide whether to do A or B, where A and B are substitutes. “A” might refer to conforming to a social norm, and “B” might refer to violating it. Purely self-interested individuals will choose the act with the higher pay-off. In these circumstances, the willingness of more people to sanction wrongdoers will result in more conformity with the social norm.

These facts have important consequences for norm leadership by entrepreneurs and charismatic figures. A norm leader may change behavior also by convincing more people to sanction norm breakers, besides convincing more people to conform to the norm. Willingness to punish non-conformity affects the equilibrium as much as willingness to conform.

These facts have important consequences for norm leadership by entrepreneurs and charismatic figures. A norm leader may change behavior primarily by convincing more people to sanction norm breakers, rather than by convincing more people to conform to the norm.

So far we have been discussing the change in social norms that can be produced by norm entrepreneurs, without specifying whether they have a public or political role, or they are private citizens engaging in social activities and opinion leadership. Social norms can be changed also through law. The law, in fact, possesses the power to “express” the values that a society has or should have and can be used to reinforce or change existing social norms. Caution is, however, needed when the law operates in the presence of contrary social norms, since the two types of norms may interact in an unexpected fashion, leading to undesired outcomes. We now turn to the analysis of the complex interaction of law and social norms.

22.5 The Connection of Social Norms and State Laws

Expressive law theories stress the ability of formal rules to reinforce, bend, and modify social norms and consequent behavior. The expressive effect of the law operates independently of sanctions, meaning that even sanctionless rules will be internalized and obeyed by individuals. If the rule is also accompanied by a sanction, the expressive effect will be stronger and the presence of the external incentive will simply speed up internalization.

However, legal regulation can also destroy existing social norms (crowding out) or it can be defeated by them (legal backlash and countervailing effects).

22.5.1 The Expressive Function of the Law

As mentioned, the law carries the power to express social values. This is what scholars define as “the expressive power of the law,” which has the ability to signal what society expects from its members and to mold individual preferences.

In contexts in which a social norm does not exist or where multiple norms coexist, lawmakers may be willing to “manage” social norms, creating new ones or bending existing ones towards what they reckon to be more acceptable behavior. This is likely when existing norms are considered either inefficient or unfair towards parts of the society. In their “management” activity, lawmakers can use the “expressive” function of the law ( Sunstein, 1996 ; McAdams, 1997 ; Cooter, 1998 , 2000 ): by enacting a law, the government makes a “statement” that strengthens the desired norms embodied in the law while weakening undesired ones.

The expressive power of the law exerts its effect through different channels.

Legal innovation can change the social meaning of given actions and behavior;

New laws help create “focal points,” attracting attention towards certain actions and changing individuals’ expectations about other people’s behavior, favoring coordination;

Legal norms can change preferences, prompting individuals to “internalize” the values embodied in the law.

We are now going to discuss these channels in turn. It is, however, interesting to notice that, through each of these channels, the law can influence behavior independently of the sanction it imposes ( McAdams, 2000a ).

Let us consider first the link between the law and social meaning. To understand this link, some anecdotal evidence can be useful. In the United States, the ban on public smoking has reduced the number of young black Americans who smoke by changing the social meaning of smoking from rebellion to dirtiness and foolishness. Legal innovation can therefore be used to change the social meaning of given actions and behavior.

Social meaning is the semiotic content, or symbolism, attached to a particular action or gesture. Specifically, it is the way individuals belonging to a particular society or community understand and interpret a given action (or inaction). 8 Once individuals are aware of social meaning, they can use it, as they can be “tools—means to a chosen end.” 9 There are many examples of such selective use of actions: clothing, the selection of certain words in special contexts, insults, and so forth. What is most interesting for our argument is that social meanings can be used by everyone, either groups or single individuals, and can be used by governments, too. For instance, if the majority of the population follows traditional religious beliefs, the government can use “family values” to advance state goals; if the majority has health concerns, the government can leverage them to impose a ban on smoking in public places. Laws expressing existing social meanings have greater chances to generate compliance.

Social meaning can be built and changed through law. An enlightening example is provided by Lessig (1996) and is related to possible techniques used to eliminate dueling. While prohibiting duels in itself is neutral for social meaning, the sanction provided to punish violators does affect it and might improve substantially the efficacy of the prohibition. Consider two possible legal strategies: imprisoning duelers and inflicting a sanction that, in addition to imprisonment, prevents duelers from holding public office. Both techniques have the effect of increasing the cost of dueling but have very different impacts on social meaning. The first type of sanction simply increases the cost of dueling, raising its expected harm. The meaning of the act, however, remains unaltered: duelers are gentlemen defending their honor and that of their community. Disqualifying duelers from public office not only increases the cost for duelers but it also changes the meaning of the act and, more precisely, the meaning of disobeying the law.

Assume in fact that the regulation imposes imprisonment: complying with the law means that the dueler is not willing to defend his community’s honor because the cost of doing so is too high. He may well be seen as a coward, someone willing to escape his duty to serve his community. Consider the alternative case, in which the sanction is disqualification from public office. Now, if someone refuses to duel, it might either be because she refuses the challenge and is therefore a coward, or because she privileges another type of public duty that the law has put in competition with the duty of defending the community’s honor.

The second type of sanction “ambiguates” the meaning of refusing to duel, changing the possible meaning of the act and therefore reducing its cost, rendering compliance with the law more attractive.

The idea that a social meaning is attributed to actions and behavior is particularly important in case of the so-called “top-down” lawmaking. As the previous example well illustrates, legal innovation that openly challenges current social meaning might reinforce a given behavior rather than reduce its prevalence. Manipulation of social meaning by the legislator has therefore to be rather subtle, creating new incentives that counteract the ones provided by the original social meaning. In this sense, the lawmaker has to act as a clever “norm entrepreneur.”

Changing a social meaning through lawmaking is a paternalistic act that legislators might sometimes want to perform to produce merit goods. More often, a legislator will choose to embed the existing social meaning into a law, which therefore becomes an imperative expression of social meaning. If social meaning already exists and is shared in a community, why do we need to express it also by law? In other words, why do we need the expressive power of the law?

This leads us straight to the second channel of the expressive power of the law, namely the creation of focal points. The expressive power of the law plays a major role in situations characterized by coordination problems ( McAdams, 2000a ). For instance, by stating that drivers should keep to the right, the law creates a “focal point,” solving a coordination problem. Moreover, laws legitimized by a democratic voting process are usually positively correlated with “popular attitudes” ( McAdams, 2000b ) and thus provide a signal of those attitudes, helping individuals to form beliefs about what others will think of their behavior. Given that people normally care about being approved or disapproved by others, the law can influence behavior even without a legal sanction.

Another example of situations requiring coordination due to multiple equilibriums are potentially conflicting situations in which individuals have to share resources or, more generally, yield to others. 10 A possible equilibrium would be to yield when the other does not yield or vice versa. The worst possible scenario occurs when no one yields. A law might help in this case, because it might allocate entitlements, specifying who has to yield and under which circumstances. 11

Possibly the strongest effect of expression is the change in preference that the law might produce in individuals, which is the third channel of expressive power. Particularly, the law might induce individuals to internalize the values it embodies (Cooter, 1998 , 2000 ). To see how that happens, consider that obeying a norm is a costly act (money, opportunities, etc.) and individuals are willing to obey if and only if they derive some kind of benefit from it. There might be an extrinsic value from obeying (say, I keep my promise because I want to be perceived a trustworthy person, which would enhance my business opportunities). More importantly, there might be an intrinsic value: obeying benefits me inasmuch as I have internalized the norm and I feel a warm glow when conforming to my moral imperative. Intrinsic values are the psychological equivalent of “tastes” or “preferences.” People who have a taste for obeying a norm are prepared to bear the costs of compliance independently of any resulting advantage or disadvantage. What is the role of the law in such a scenario? If people believe it a moral duty to comply with legal norms ( Tyler, 1990 ), their willingness to pay for compliance increases. The taste for obeying the law can also explain compliance with legal rules that are not aligned with current morality and social norms, since it increases the cost of disobedience and enhances internalization. More precisely, people tend to align their concept of morality with the law ( Tyler, 1990 describes such a process with respect to law; and Tyler and Huo, 2002 extend the argument to the decisions of authorities).

Understandably, the closer the content of the law to existing social norms, the greater its legitimacy. Tyler (1990) and Sunshine and Tyler (2003) argue that the public’s perceptions of legitimacy influence people’s compliance with the law.

As we will see below, laws can have unexpected effects on behavior when they interact with social norms, no matter whether the law and norms are aligned. Such unexpected effects counteract the expressive power of the law and might require heavy sanctioning to induce the desired behavior in people.

22.5.2 Crowding Out and Crowding In

Legal norms seemingly reinforce existing social norms, bending them towards the law when discrepancy exists and favoring their creation where social norms do not exist (expressive law theories).

However, legal regulation can also destroy existing social norms (crowding out).

More generally, legal norms and sanctions especially are often proven to curb cooperative behavior and destroy social norms of cooperation. Frey and Jegan (2001) and Frey and Oberholzer-Gee (1997) argue this might occur because the law crowds out intrinsic motivation, by hitting on individuals’ self-determination and self-esteem. Somehow, the legal rule is perceived as a lack of acknowledgment of individuals’ intrinsic motivation and as a lack of trust. It may also happen that individuals adopt cooperative behaviors and comply with social norms of cooperation when they want to signal their trustworthiness and intrinsic motivations to others. If a law prescribes cooperation, it becomes impossible to distinguish whether somebody is being cooperative for fear of sanction or for intrinsic motivation. This might discourage their cooperation.

In his famous example of blood donors, Titmuss (1970) argues that providing incentives to blood donors may reduce blood supply, as purely altruistic donors are demotivated by the reward. It may also reduce the quality of the donated blood. Hepatitis rates from blood transfusions significantly decreased when the blood was donated rather than purchased. When monetary incentives are not involved, people supplying blood are donors who have no reason to hide an illness. Interestingly, Costa-Font, Jofre-Bonet, and Yen (2011) find that the nature of the rewards matters. They collected data on blood donations in fifteen European countries in 2002, showing that monetary rewards may indeed crowd out blood donations, whereas non-monetary rewards do not.

Similar effects can be found in case of norms of cooperation, in particular with norms of cooperation favoring an entire community. Frey and Oberholzer-Gee (1997) present a field experiment on the implementation of a nuclear waste facility in a Swiss town. Citizens were asked whether they would vote in favor of the establishment of the facility in their community. More than half of them agreed. However, they were later offered monetary compensation to allow the waste facility and were asked to vote again. The level of support for the project dropped by more than 50%. Several explanations could be offered for this phenomenon. On the one hand, by refusing to agree on the public project when offered compensation, citizens might be simply trying to raise their stakes, like in an anticommons scenario. 12 They expect that their refusal might trigger an increase in the compensation offered by the government. Alternatively, an offer for compensation might be perceived as a signal that the facility implies serious risks for public health, risks that citizens were not able to consider at the time of their first vote. Whatever the explanation, this is considered clear evidence that the positive feeling that citizens develop when they support public projects benefiting an entire community (in this case, the entire Switzerland) is crowded out by the offer of monetary compensation. The explanation is, however, important if the legislator is willing to enact a law avoiding such crowding effects. If the first explanation prevails, crowding out can be avoided by making it clear that compensation cannot be renegotiated and that there will be no increase following a refusal. If the second prevails, an information campaign stressing how safe waste facilities are might be the preferable option.

22.5.3 Legal Backlash and Countervailing Effects

We have seen that legal norms can shape social norms and the behavior driven by them via the expressive function and by crowding in. However, legal norms can have a detrimental effect on social norms (crowding them out), defeating a system of private enforcement and totally shifting its costs onto the public sector. Legal norms can have even worse effects, not only defeating possibly virtuous social norms but polarizing societies, exacerbating possible social conflicts, and even worsening individual behavior, increasing the prevalence of actions that the law intends to limit.

Before looking at these undesired effects of laws, it is interesting to mention that, in the presence of very strong social norms, legal rules may be irrelevant. That is to say that “norms control individual behaviour to the exclusion of law” (see McAdams, 1997 , p. 347). Consider, for instance, Ellickson (1991) , who argues that the way neighbors resolved disputes in Shasta County was independent of the property regime adopted, since a unique social norm governed, irrespective of the legal norm. On a different key, Kahan (2000) points to the existence of social norms so strongly embedded in common behavior that enforcers fail to enforce laws contrary to such norms (the “sticky-norm” problem). The sticky-norm problem affects laws that depart too much from current social norms and has the consequence of reinforcing current social norms. Not sanctioning the behavior prohibited by the legal norm but admitted by the social norm reasserts the behavior the law was trying to change, encouraging and possibly perpetuating it.

When a new law is enacted, it has a coordination and internalization effect, which attracts individual opinions towards the value embodied in the law. Such effect is stronger the closer the law is to existing social norms. Otherwise, there is the possibility that countervailing effects arise, where legal intervention contrary to existing social opinions repels those who hold strong contrary beliefs. The final impact depends on the relative strength of such two forces, with the countervailing effects more likely to dominate the farther away the law is from the prevailing social norm (Carbonara et al., 2008a , 2008b ).

What happens when a new law is enacted where either segmentation or polarization of social norms exists? The easiest case to consider is a new law with a strong internalization and coordination effect. This reduces the attractiveness of social norms that lie far away from the new law. Such norms will be abandoned in favor of social norms closer to the new law and, if the attraction exerted by the latter norms is strong enough, we might witness a convergence to a unique social norm very close, if not identical, to the law. This is what happened after smoking was banned from public spaces in many countries around the world. Even smokers complied with the law because they felt it was embodying a widespread belief about the health hazards of smoking. The social norm changed through internalization of the values expressed by the law.

The opposite would occur in a case where the opinions expressed in disagreement with the new law acted as strong attractors, thus offsetting the coordination and internalization power of the law. Social norms far off the new law are reinforced, and this might result in different groups within a society following different norms: some of them might violate the legal prohibition, some might adopt stricter rules than the law, and finally, some might comply with the law. In the worst-case scenario, society might end up very polarized and social conflicts might possibly arise. Even if polarization does not occur, and violation of the law is the prevalent behavior, the law would anyway be ineffective in forging a pattern of behavior consistent with the law: society would converge to a unique social norm contrary to the law.

So far we have considered how the law impacts on social norms, possibly changing them in unexpected and undesirable directions. Legal rules in the presence of countervailing social norms may not only impact existing social norms but also drive behavior in directions opposite to that intended by the lawmaker. Carbonara, Parisi, and von Wangenheim (2012) present a model explaining in what circumstances this might happen. According to this model, the incentives to comply with a law depend on the magnitude of the sanction, the expressive power of the law, and the degree of perceived legitimacy. While the first two elements push towards compliance, when perceived legitimacy is low people may be dragged into disobedience.

Perceived legitimacy may be low when the legal rule has little expressive power and the values embodied in the law clash with society’s shared values. A new law that is contrary to current social values or more restrictive than people deem fair triggers opposition, where such opposition can take the form of either open protest or civil disobedience. An enlightening example is the reaction by the Internet community to the severe punishments that were adopted against copyright infringers in the past few years. Internet users often reacted to the huge sanctions raised against private citizens who downloaded music from the Internet illegally. They protested fiercely, boycotted entertainment majors, and even engaged in fundraising to fully cover fines. 13 The result of such protests was a steady increase in the number of users of peer-to-peer technologies, notwithstanding increasingly severe sanctions. 14 Moreover, there is experimental evidence that sanctions reinforce the norms prevailing in the file-sharing community, producing polarization. 15 Protest indicates social disapproval of the legal rule and induces individuals to expect that society will approve or tolerate infringement, thus “subtracting” from the legal sanction (as in the case of fundraising to cover the fines of music pirates). If such effect is strong enough to compensate for the expressive power and for the incentive effect of the sanction, outcomes opposite to those intended by the lawmaker might ensue. Similarly, countervailing effects may be observed when society perceives a legal norm as too lenient relative to the pre-existing social norm. In that case, individuals may be inclined to “add” social sanctions to the behavior (disapprobation, further punishment, etc.).

Countervailing effects may be particularly strong if protest reacts faster than actual behavior and if the reaction to legal innovation depends also on the relative change in the strictness of the law. Protest has the opportunity to react faster (or, at least, earlier) than behavior whenever a new law is announced or debated before it is enacted. This affects opinions and protest before actual incentive effects on behavior are possible. Countervailing effects are thus exacerbated, since protest may result in a reinforced social norm. When the law is finally enacted, it is counterbalanced by a much stronger contrary social norm and countervailing effects are more likely to occur.

Similarly, protest tends to react both to the absolute strictness of a law and to the change relative to a previously existing law (or to “a zero sanction”, if no law regulating a certain matter existed before). Then, if the sanction for music piracy is raised from $100 to $10,000, much more protest is likely to arise than in the case where the sanction increases from $100 to $500. The implication of this is a possibly huge reaction when a new law is passed that departs very much from current social values, which can make contrary social norms extremely strong. After some time, people are likely to get used to the new law and protest may subside. However, the initial reaction may reinforce contrary social norms so much that countervailing effects may endure in the long run, even after the initial effect subsides.

In general, the existence of countervailing effects indicates that laws intending to induce substantial shifts from current norms may have to be introduced gradually, in small, consecutive steps allowing for adaptation of individual values to the content of the law. More interestingly, countervailing effects of social reaction could be used to induce legal deterrence by means of a reduction in the strictness of the law. When facing a low sanction, people might not object to its application, thus magnifying its deterrence effect.

22.6 Conclusions: Substitutes, Complements, Antagonists?

The analysis in the previous sections shows that the impact of legal innovation on social values and behavior depends on several, often contrasting factors. Particularly, they should balance extrinsic incentives (sanctions reducing the net benefit from action), the expressive power, and possible crowding-out and countervailing effects. First of all, absent a strong expressive power (which implies a reduced ability of individuals to internalize the values embodied in the law), laws differing substantially from prevailing social norms should be introduced gradually, to allow individuals to adapt their values to the content of the law. Notice that phenomena like crowding-out and countervailing effects in particular reduce the power of extrinsic incentives, to the point that it may be counterproductive to impose a very high sanction. Internalization then becomes the crucial variable for successful legal innovation. This leads to another interesting and apparently paradoxical insight. Legal deterrence could increase if the strictness of the law is reduced.

What, then, is the relationship between legal and social norms? Are they substitutes or complements? Expressive law theories point to the possible complementarity of legal and social norms. The law can reinforce existing social norms by helping internalization, reinforcing compliance within a particular social group, and spreading them among individuals that do not belong to that social group but interact with it regularly. When law and social norms are aligned, their coexistence magnifies their respective power to change behavior.

Things change quite substantially if legal and social norms are not aligned and the law tries to change behavior sustained by social norms. Furthermore, the ability of legal and social norms to reinforce each other is questioned every time legal innovation crowds out existing virtuous social norms.

Interestingly, Zasu (2007) argues that social norms and the law tend to be complements when societies are not well “connected,” so that social sanctions are hardly applied. Conversely, if social norms are consistent with welfare maximization, social and legal norms are substitutes and costly legal norms are not required, as they risk crowding out “virtuous” social norms. This process of erosion of social values is described also by Posner ( 1998 , 2000 ).

Legal and social norms tend to be antagonists whenever they pursue conflicting objectives (e.g. when legal norms tend to maximize overall social welfare and social norms perpetuate a predatory behavior by one group against another) and when they are heavily misaligned. In such cases, not only do they not reinforce each other, but also the introduction of the law may well be totally counterproductive, in particular when a legal sanction is applied. When law and social norms are antagonists, social norms tend to prevail and costly legal intervention is wasted.

That is why other instruments, different from sanctions, may be preferable. For instance, taxes might be a better option, as they are perceived as a “price” that individuals are free to pay if they want to indulge in a given, socially costly, behavior (like polluting). Also, positive incentives, like rewards and prizes, may be more effective. For instance, rewarding compliance may be a good idea in case of tax evasion. 16

The literature on social norms and the law is vast, the effects of their interaction diverse and difficult to predict. In this work, we have tried to provide a systematic view of the subject, to help interested scholars and lawmakers to disentangle the forces involved in this process and understand the circumstances in which each of them could prevail.

Acknowledgment

This chapter greatly benefited from comments and suggestions by Robert D. Cooter, who generously shared with me his profound knowledge on the interaction between the law and social norms.

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See McAdams and Rasmusen (2007) , p. 1575.

See Ellickson (1991) .

See, among others, Cooter (1996) , Ellickson (1991) , McAdams ( 1997 , 2000a , 2000b ).

In such a case, public lies serve the purpose to avoid sanctioning, and private behavior follows beliefs about the real “rule” followed by the majority of the people in the society. An example of this could be adherence to religious prescriptions or adultery. See also Kuran (1997) .

On the efficiency of social norms, see Posner (1996) and Mahoney and Sanchirico (2000) .

See McAdams (1995) and Carbonara and Pasotti (2010) .

Kirzner (1995) .

See Lessig (1995) .

Lessig (1995) , p. 956.

The typical coordination game we refer to in this case is the hawk–dove (also known as the “chicken”) game. See Sugden (2004) .

See Carbonara and Pasotti (2010) .

On anticommons, see Heller (1998) .

See Oksanen and Välimäki (2007) .

See Depoorter and Vanneste (2005) .

Depoorter, Parisi, and Vanneste (2005) .

See Fabbri (2015) .

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22 Law and Social Norms

22.1 Introduction

22.2 Conforming with Social Norms: Coordination, Sanctions, Internalization

22.3 The Efficiency and Fairness of Social Norms

22.4 Changing Social Norms

22.5 The Connection of Social Norms and State Laws

22.5.1 The Expressive Function of the Law

22.5.2 Crowding Out and Crowding In

22.5.3 Legal Backlash and Countervailing Effects

22.6 Conclusions: Substitutes, Complements, Antagonists?

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