The contribution of norms to social welfare: Grounds for Hope or Pessimism?

Legal Theory

Volumn 7, Issue 2, 2001, Pages 159-177

  Horne, Christine ^a  

^a BRIGHAM YOUNG UNIVERSITY   (United States)

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EID: 84937346253     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325201072020     Document Type: Article

References (48)

1. For a review of the sociological literature on norm emergence, see Christine Horne, Sociological Perspectives on the Emergence of Norms, in SOCIAL NORMS (Michael Hechter & Karl-Dieter Opp, eds., 2001).
2. Recent symposia include Symposium, Law, Economics, and Norms, 144 U. PA. L. REV. 1643 (1996); Symposium, Law and Society and Law and Economics, 1997 WIS. L. REV. 375 (1997); Symposium, The Nature and Sources, Formal and Informal, of Law, 82 CORNELL L. REV. 947 (1997). For examples of other work, see Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J.LEGAL STUD. 115 (1992); ROBERT C. ELLICKSON, ORDER WITHOUT LAW (1991); Eric A. Posner, The Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action, 63 U. CHI. L. REV. 133 (1996); Cass R. Sunstein, Norms in Surprising Places: The Case of Statutory Interpretation, 100 ETHICS 803 (1990).
3. See, e.g., George A. Akerlof, A Theory of Social Custom, of which Unemployment May Be One Consequence, 94 Q. J. ECON. 749 (1980).
4. See, e.g., Cristina Bicchieri, Learning to Cooperate, in THE DYNAMICS OF NORMS 17 (Cristina Bicchieri, Richard Jeffry, & Brian Skyrms eds., 1997); DAVID GAUTHIER, MORALS BY AGREEMENT (1985); EDNA ULLMANN MARGALIT, THE EMERGENCE OF NORMS (1977).
5. See, e.g., ROBERT AXELROD, THE EVOLUTION OF COOPERATION (1984); RUSSELL HARDIN, COLLECTIVE ACTION (1982); ROBERT D. PUTNAM, MAKING DEMOCRACY WORK: CIVIC TRADITIONS IN MODERN ITALY (1993).
6. Robert C. Ellickson, Law and Economics Discovers Social Norms, 27 J. LEGAL STUD. 537, 539-540.
7. McAdams identifies three important debates: how norms are enforced, the extent to which norms promote group welfare, and whether the state should regulate norms (Richard H. McAdams, Comment: Accounting for Norms, 1997 WIS. L. REV. 625, 634-635 (1997)).
8. See, e.g., ELLICKSON, McAdams identifies three important debates: how norms are enforced, the extent to which norms promote group welfare, and whether the state should regulate norms = note 2.
9. Among legal scholars, see, e.g., McAdams, McAdams identifies three important debates: how norms are enforced, the extent to which norms promote group welfare, and whether the state should regulate norms = note note 7, at 635; Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH. L. REV. 338, 412-419 (1997); and Eric A. Posner, Law, Economics, and Inefficient Norms, 144 U. PA. L. REV. 1697 (1996). Among sociologists, see, e.g., JON ELSTER, THE CEMENT OF SOCIETY: A STUDY OF SOCIAL ORDER, 138-51 (1989).
10. For examples of such research, see ELLICKSON, Among legal scholars note 2; and Mark D.West, Legal Rules and Social Norms in Japan's Secret World of Sumo, 26 J. LEGAL STUD. 165 (1997). See generally Bernstein, Among legal scholars note 2; 21 J. LEGAL. STUD. 115 (1992); Lisa Bernstein, Merchant Law in a Merchant Court: Rethinking the Code's Search for Immanent Business Norms, 144 U. PENN. L. REV. 1765 (1996); Janet T. Landa, A Theory of the Ethnically Homogeneous Middleman Group, 10 J. LEGAL STUD. 349 (1981).
11. Posner, for example, in comparing efficiency arguments made for the evolution of the common law and for the emergence of norms, states that “[t]he efficiency arguments for norms seem weaker… perhaps because norms are even more difficult to identify and describe than common law doctrines. So it is difficult to test the norms against a model of efficient behavior” (Posner, Merchant Law in a Merchant Court: Rethinking the Code's Search for Immanent Business Norms note 9, at 1707).
12. Among legal scholars, see, e.g., ELLICKSON, So it is difficult to test the norms against a model of efficient behavior” note 2; Posner, So it is difficult to test the norms against a model of efficient behavior” note 9, at 1699. Among sociologists, see, e.g, JAMES S. COLEMAN, FOUNDATIONS OF SOCIAL THEORY (1990).
13. See, e.g., Robert D. Cooter, Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant, 144 U. PENN. L. REV. 1643, 1661-1664 (1996).
14. For examples of sociological work making this argument, see GEORGE C. HOMANS, THE HUMAN GROUP 266 (1950); Karl-Dieter Opp, The Evolutionary Emergence of Norms, 21 BRIT. J. SOC. PSYCHOL. 139 (1982).
15. See, e.g., WILLIAM GRAHAM SUMNER, FOLKWAYS (1979); MAX WEBER, ECONOMY AND SOCIETY 755 (Guenther Roth and Claus Wittich eds., 1978).
16. See, e.g., Jodi Kraus, Legal Design and the Evolution of Commercial Norms, 26 J. LEGAL STUD. 377 (1997). For an example of sociological work making this point, see WEBER, MAX WEBER note 15.
17. WEBER, Legal Design and the Evolution of Commercial Norms note 15, at 754-755.
18. See Opp, Legal Design and the Evolution of Commercial Norms note 15 note 14, for a discussion of some possibilities.
19. McAdams, Legal Design and the Evolution of Commercial Norms note 15 note 14 note 9, at 413.
20. McAdams, Legal Design and the Evolution of Commercial Norms note 15 note 14 note 9 note 9, at 366.
21. These remarks are drawn from Knight's discussion of Hume and the emergence of social institutions (JACK KNIGHT, INSTITUTIONS AND SOCIAL CONFLICT at 5-6 (1992).
22. Satoshi Kanazawa & Mary C. Still,The Emergence of Marriage Norms: An Evolutionary Psychological Perspective, Id. note 1, at 278.
23. See, e.g., Robert Cooter, Normative Failure Theory of Law, 82 CORNELL L. REV. 947, 950; ELLICKSON, The Emergence of Marriage Norms: An Evolutionary Psychological Perspective note 2.
24. ELLICKSON, Normative Failure Theory of Law note 2, at 177-182.
25. Similar questions arise regarding the mechanisms that contribute to the purported efficiency of the common law. For a statement of this claim, see RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (1972). For discussions of potential mechanisms, see Paul H. Rubin, Why is the Common Law Efficient, 6 J. LEGAL STUD. 51 (1977); see also Paul H. Rubin & Martin J. Bailey, The Role of Lawyers in Changing the Law, 23 J. LEGAL STUD. 807 (1994).
26. Coleman Similar questions arise regarding the mechanisms that contribute to the purported efficiency of the common law. note 12.
27. Such norms also are referred to as “meta-norms” (see, e.g., Robert Axelrod, An Evolutionary Approach to Norms, 80 AM. POL. SC. REV. 1095 (1986).
28. See ELLICKSON Such norms also are referred to as “meta-norms” note 2, at 132-136, for a complete taxonomy.
29. While I describe the approaches to organizing responses to deviance in abstract terms, the institutions described have strong similarities to control institutions existing in society. That is, these abstract descriptions may be seen as ideal types. For example, a central agent has characteristics of a legal system in that many of its costs are paid through taxes and it acts primarily in response to demands made by citizens. See Donald Black, The Mobilization of Law, 2 J. LEGAL STUD. 125 (1973); HARRY W. JONES, THE EFFICACY OF LAW (1969); Roscoe Pound, The Limits of Effective Legal Action, 27 INT'L J. ETHICS 150 (1917).
30. The agent is seen here as being responsive to the demands of group members. That is, the agency problem is treated as solved, at least to some degree. (For a discussion of this problem, see Stephen A. Ross, The Economic Theory of Agency: The Principal's Problem, 63 AM. ECON. REV. 134 (1973)). Thus when individuals make requests of the agent, it will attempt to respond. As it does so, its costs go up and it may raise taxes in order to cover its increased expenses.
31. For another discussion of this distinction, see Christine Horne, Community and the State: The Relationship between Normative and Legal Controls, 16 EUR. SOC. REV. (2000).
32. McAdams, For another discussion of this distinction note 7, at 635.
33. For work suggesting that cohesion contributes to order, see HOMANS, For another discussion of this distinction note 7 note 14, and Christine Horne, The Enforcement of Norms: Group Cohesion and Meta-Norms, SOCIAL PSYCHOLOGY QUARTERLY (forthcoming); see also Robert Sampson, Stephen W. Raudenbush & Felton Earls, Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, 227 SCIENCE 918 (1997); but see Andreas Flache and Michael W. Macy, The Weakness of Strong Ties: Collective Action Failure in a Highly Cohesive Group, 21 J. MATH. SOC. 3 (1996). For discussion of cohesion and dependence, see Richard M. Emerson, Power-Dependence Relations, 27 AM. SOC. REV. 31 (1962); Richard M. Emerson, Exchange Theory, Part II: Exchange Relations and Networks, in SOCIOLOGICAL THEORIES IN PROGRESS, vol. 2 (Joseph Berger, Morris Zelditch, Jr., and Bo Anderson eds., 1972).
34. See Emerson, For work suggesting that cohesion contributes to order note 34.
35. For examples of discussions of the strengths of experimental methods, see STEVEN R. BROWN AND LAWRENCE E. MALAMED, EXPERIMENTAL DESIGN AND ANALYSIS (1990); Vernon Smith, Theory, Experiment and Economics, in PAPERS IN EXPERIMENTAL ECON. 783, 784 (Vernon Smith ed. 1991).
36. For an example of such an attempt to measure social protest norms in Germany, see Guillermina Jasso and Karl-Dieter Opp, Probing the Character of Norms: A Factorial Survey Analysis of the Norms of Political Action, 62 AM. SOC. REV. 947 (1997).
37. ELLICKSON, For an example of such an attempt to measure social protest norms in Germany note 2, at 129.
38. For an example of an early sociological study making this point, see RICHARD LaPIERE, A THEORY OF SOCIAL CONTROL (1954). For a discussion of problems in measuring internal states, see Robin M. Dawes and Tom L. Smith, Attitude and Opinion Measurement, in HANDBOOK OF SOCIAL PSYCHOLOGY 509, 561 (3rd ed., Gardner Lindzey and Elliott Aronson eds., 1985); Michael Hechter, et al., Do Values Matter? An Analysis of Advance Directives for Medical Treatment, 15 EUR. SOC. REV. 405 (1999).
39. In practice many scholars conflate behavior and norms. See, e.g., Kraus, For an example of an early sociological study making this point note 16.
40. See, e.g., ELLICKSON, practice many scholars conflate behavior and norms. note 2, at 128.
41. For a discussion of scope conditions, see LINDA D. MOLM, COERCIVE POWER IN SOCIAL EXCHANGE (1997); Murray Webster, Jr. and John B. Kervin, Artificiality in Experimental Sociology, 8 CAN. REV. SOC. & ANTHROP. 263 (1971).
42. COLEMAN, For a discussion of scope conditions note 12; ELLICKSON, For a discussion of scope conditions note 2; see also AXELROD, For a discussion of scope conditions note 5.
43. ELLICKSON, For a discussion of scope conditions note 12; ELLICKSON note 2, at 177.
44. In order for individuals to become aware that there is consensus about a behavior, they must have information about the extent to which that behavior occurs (McAdams, For a discussion of scope conditions note 12; ELLICKSON note 2,ELLICKSON note 9, at 362-363).
45. ELLICKSON, order for individuals to become aware that there is consensus about a behavior, they must have information about the extent to which that behavior occurs note 2, at 180-181.
46. “When a theory performs well you… think, ‘Are there parallel results in naturally occurring field data?’ You look for coherence across different data sets because theories are not specific to particular data sources” (Vernon Smith, Theory, Experiment, and Economics, in PAPERS IN EXPERIMENTAL ECONOMICS 783, 784 (1991)).
47. If subjects were truly rational, they would not exchange in the low-cohesion condition. Of course, we know that individuals are not perfectly rational (for discussion of this issue, see, e.g., Daniel Kahneman, New Challenges to the Rationality Assumption, 3 LEGAL THEORY 105 (1997)). While pre-testing the experiment I learned that, in fact, subjects do engage in exchange in the weak-cohesion condition, trying different strategies to trick other participants into giving them points. In addition, in setting up the experiment I wanted to create as large a difference between the high-and low-cohesion conditions as possible without having to spend large amounts of money in payments to subjects in the high-cohesion condition. For these reasons, I decided to set the exchange ratio as low as possible (1:1) in the low-cohesion condition. That subjects do not behave exactly as predicted by a rational choice model is to be expected. The question is whether the assumption produces predictions about group-level outcomes that are consistent with what actually occurs.
48. See, e.g., ELLICKSON, If subjects were truly rational, they would not exchange in the low-cohesion condition. note 2; McAdams, If subjects were truly rational, they would not exchange in the low-cohesion condition. note 7, at 635-636; Posner, If subjects were truly rational, they would not exchange in the low-cohesion condition. note 2; Cass R. Sunstein, On the Expressive Function of Law, 144 U. PENN. L. REV 2021 (1996).