Social Norms

Social norms grow out of social value and both serve to differentiate human social behavior from that of other
species. The significance of learning in behavior varies from species to species and is closely linked to processes
of communication. Only human beings are capable of elaborate symbolic communication and of structuring their
behavior in terms of abstract preferences that we have called values. Norms are the means through which values
are expressed in behavior.

Norms generally are the rules and regulations that groups live by. Or perhaps because the words, rules and
regulations, call to mind some kind of formal listing, we might refer to norms as the standards of behavior of a
group. For while some of the appropriate standards of behavior in most societies are written down, many of them
are not that formal. Many are learned, informally, in interaction with other people and are passed "that way from
generation to generation.

The term "norms" covers an exceedingly wide range of behaviour. So that the whole range of that behaviour may
be included. Sociologists have offered the following definition. Social norms are rules developed by a group of
people that specify how people must, should, may, should not, and must not behave in various situations.

Some norms are defined by individual and societies as crucial to the society. For example, all members of the
group are required to wear clothing and to bury their dead. Such "musts" are often labeled "mores", a term coined
by the American sociologist William Graham Sumner.

Many social norms are concerned with "should "; that is, there is some pressure on the individual to conform but
there is some leeway permitted also. The 'should behaviors' are what Sumner called "folk-ways"; that is,
conventional ways of doing things that are not defined as crucial to the survival of either the individual or the
society. The 'should behaviors' in our own society include the prescriptions that people's clothes should be clean,
and that death should be recognized with public funerals. A complete list of the should behaviors in a complex
society would be virtually without end.

The word "May" in the definition of norms indicates that, in most groups, there is a wide range of behaviors in
which the individual is given considerable choice. To continue the illustration, in Western countries girls may
select to wear dresses or halters and jeans. Diets may be done through trainers at the gym or through the benefit
of Medifast coupons, some people may even prefer diets advertised on tv. Funerals may be held with or without
flowers, with the casket open or closed, with or without religious participation, and so on. We have confined our
examples to just three areas, but students should be able to construct their own examples from all areas of life.

The remainder of the definition, including the 'should-not' and the 'must-not' behaviours, probably does not
require lengthy illustration because such examples are implicit in what has already been said. One should not
belch in public, dump garbage in the street, run stop signs, or tell lies. One must not kill another person or have
sexual intercourse with one's sister or brother.

Social norms cover almost every conceivable situation, and they vary from standards where almost complete
conformity is demanded to those where there is great freedom of choice. Norms also vary in the kinds of
sanctions that are attached to violation of the norms. Since norms derive from values, and since complex
societies have multiple and conflicting value systems, it follows that norms frequently are in conflict also.

Taking the illustration of American sex norms, two proscriptive norms prohibit premarital intercourse and
extramarital intercourse. But many boys also have been taught that sex is good and that they should seek to
"score" with girls whenever possible. Somewhat similarly, girls have been taught that promiscuous intercourse
before marriage is bad; but they have also been taught that sex is acceptable within true love relationships.
Members of both sexes, then, find themselves faced with conflicting demands for participation in sex and for
abstinence from it. They also discover that there are sanctions associated with either course of action.

Normative conflict is also deeply involved in social change. As statistical norms come to differ too blatantly from
existing prescriptive norms, new prescriptive norms give sanction to formerly prohibited behaviour and even
extend it. Recent changes in the sex norms of teenage and young adult groups provide examples. The change is
more apparent in communal living groups where sometimes there is an explicit ideology of sexual freedom and
the assumption that sexual activities will be shared with all members of the group. In less dramatic fashion, the
change is evident among couples who simply begin to live together without the formality of a marriage ceremony.

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Social norms are the explicit or implicit rules specifying what behaviors are acceptable
within a society or group. This sociological and social psychological term has been further
defined as "the rules that a group uses for appropriate and inappropriate values, beliefs,
attitudes and behaviors. They have also been described as the "customary rules of behavior
that coordinate our interactions with others."[1] Social norms are rules that define the
behaviour that is expected or acceptable in particular circumstances.

Social norms are neither static nor universal; they change with respect to time and vary with
respect to culture, social classes, and social groups. What is deemed to be acceptable dress,
speech or behavior in one social group may not be acceptable in another.

Deference to social norms maintains one's acceptance and popularity within a particular
group. Social norms can be enforced formally (e.g., through sanctions) or informally (e.g.,
through body language and non-verbal communication cues). By ignoring or breaking social
norms, one risks becoming unpopular or an outcast.

As social beings, individuals learn when and where it is appropriate to say certain things, to
use certain words, to discuss certain topics or wear certain clothes, and when it is not. Thus,
knowledge about cultural norms is important for impression management,[2] which is an
individual's regulation of their nonverbal behaviour. One also comes to know through
experience what types of people he/she can and cannot discuss certain topics with or wear
certain types of dress around. Typically, this knowledge is derived through experience (i.e.
social norms are learned through social interaction).

Contents
 [hide] 

 1 Overview
 2 Development of social norms
 3 Transmission of social norms
 4 Terms related to social norms
 5 Example of a norm
 6 Game-theoretical analysis of social
norms
 7 See also
 8 Bibliography
 9 References
 10 External links

[edit] Overview
Social norms can be viewed as statements (both implied and explicitly stated) that regulate
behavior and act as social controls. They are usually based upon some degree of consensus
within a group and are maintained through social sanctions. Three models explain normative
rule content:
 Focus on the actions of one's personal ego
 Focus on ego's reactions to actions of alternative
 Negotiation between ego and alternative.

[edit] Development of social norms

Groups may adopt norms in two different ways. One form of norm adoption is the formal
method, where norms are written down and formally adopted (e.g., laws, legislation, club
rules). However, social norms are much more likely to be informal, and emerge gradually
(e.g., not wearing socks with sandals).

Norms can exist as both formal and informal rules of behaviour. Informal norms can be
divided into two distinct groups:

 Folkways: Informal rules and norms whose violation is not offensive, but expected to be
followed. It's a kind of adjusting, accommodating type of habits. It does not invite any
punishment or sanctions, but some reprimands or warnings.
 Mores: They are also informal rules that are not written, but result in severe punishments
and social sanction upon the individuals like social and religious exclusions.

Individuals who fail to comply with formally- or informally-sanctioned social norms are
reprimanded in a number of ways. For example, noncompliant individuals may be criticized
by others [3], denied food, or any number of other negative sanctions.

[edit] Transmission of social norms

Groups internalize norms by accepting them as reasonable and proper standards for behaviour
within the group. Once firmly established, a norm becomes a social fact, and thus, a part of
the group's operational structure, and is difficult to change. With that being said, newcomers
to a group can change a group's norms. However, it is much more likely that the new
individual entering the group will adopt the group's norms, values, and perspectives, rather
than the other way around.

Also, norms that are counter to the behaviours of the overarching society or culture may be
transmitted and maintained within small subgroups of society. For example, Crandall (1988)
noted that certain social groups (e.g., cheerleading squads, dance troupes, sports teams,
sororities) have a rate of bulimia that is much higher than society as a whole.

[edit] Terms related to social norms

A descriptive norm refers to people's perceptions of what is commonly done in specific
situations. An injunctive norm refers to people's perceptions of what is commonly approved
or disapproved of within a particular culture.[4]

Prescriptive norms are unwritten rules that are understood and followed by society. Everyone
does these every day without thinking about them.

Proscriptive norms are unwritten rules that are known by society that one shouldn't do, or
follow. These norms can vary from culture to culture.
Deviance is "nonconformity to a set of norms that are accepted by a significant number of
people in a community or society (Appelbaum, 173)." In simple terms it is behavior that goes
against norms.

The 'looking glass-self' is how one sees themselves by interacting with others, how others
perceive oneself, what others expect, and how one should behave.

[edit] Example of a norm

Norms affect the way one behaves in public. When one enters an elevator, it is expected that
one turns around to face the doors. An example of a social norm violation would be to enter
the elevator and remain facing the rest of the people.

[edit] Game-theoretical analysis of social norms

A general formal framework that can be used to represent the essential elements of the social
situation surrounding a norm is the repeated game of game theory.

A norm gives a person a rule of thumb for how they should behave. However, a rational
person only acts according to the rule if it is optimal for them. The situation can be described
as follows. A norm gives an expectation of how other people act in a given situation (macro).
A person acts optimally given the expectation (micro). For a norm to be stable, people's
actions must reconstitute the expectation without change (micro-macro feedback loop). A set
of such correct stable expectations is known as a Nash equilibrium. Thus, a stable norm must
constitute a Nash equilibrium.[5]

From a game theoretical point of view, there are two explanations for the vast variety of
norms that exist throughout the world. One is the difference in games. Different parts of the
world may give different environmental contexts and different people may have different
values, which may result in a difference in games. The other is equilibrium selection not
explicable by the game itself. Equilibrium selection is closely related to coordination. For a
simple example, driving is common throughout the world, but in some countries people drive
on the right and in other countries people drive on the left (see coordination game). A
framework called comparative institutional analysis is proposed to deal with the game
theoretical structural understanding of the variety of social norms.

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Functions of Social Norms.

Sociology Overview: The Functions of Social Norms

The coercive force of norms serves positive and constructive purposes.

1. Social norms make it possible for the human organism to survive. The newborn infant does
not enter the world with the full equipment and capacity to respond appropriately to
everything it will encounter in its environment. It would not survive without the social norms
that influence adults to take care of it.

2. Social norms are the means by which society is maintained and the needs of its members
are fulfilled. Unrestrained, our biological needs and inclinations would encourage or perhaps
guarantee anarchy. When norms control behavior, individual participants in a culture are
constrained to fulfill societal needs, sometimes at the expense of their nature drives. Our
culture demands that every newborn infant have a personal and family identity, hence we do
not tolerate indiscriminate procreation. We require registration of births by personal and
family names. We also require adherence to a sociological system of rules setting forth the
rights and obligations of parents and the duties and privileges of their children.

3. Social norms make it possible for much of individual behavior to become automatic,
greatly reducing the number of personal decisions to be made. In the process of internalizing
the norms of his society, an individual learns countless time-tested procedures for the
maintenance fo life, health, comfort, and propriety. Once learned, they can be applied
automatically in appropriate situations. You do not reflect, each time you wish to greet a
friend, on whether to extend your right or left hand. When driving a car, you no longer stop to
consider whether to stay in the right or left traffic lane. These procedures were decided for
you and you are habituated to them. As Cooley (1964) remarks:

The standards which conformity presses upon the individual are often elaborate and valuable
products of cumulative thought and experience, and whatever imperfection they may have
they are, as a whole, an indispensable foundation for life; it is inconceivable that any one
should dispense with them. If I imitate the dress, the manners, the household arrangement of
other people, I save so much mental energy for other purposes. (pp. 296-297).

We would not want all our procedures predetermined for us, but a great deal of time and
energy are conserved when routine behavior becomes automatic, leaving us freer than we
would otherwise be to decide on a number of other procedures calling for individual thought
and choice. By accepting and following a cultural pattern, Cooley (1964) says, we get "The
selected and systematized outcome of the past" (p. 297).

The strain for conformity, then, is frequently accompanied by no real feeling of strain. The
coercion is not felt in many instances because the person is fully accustomed to responding to
it. A man who does not want to contribute to charity may feel coerced when a persistent
canvasser presses him for a donation. However, if he is someone who has fully internalized
his culture's standard concerning donating to charities, he does not feel under duress, for he
genuinely would like to contribute and will do so to the extent he considers within his means.
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I - Social Norms
With sufficient reason it has been said, ‘like cows, social norms are easier to recognize than
to define’ (Basu 1998). Social norms are the motley of informal, often unspoken rules, guides
and standards of behavior the authority for which is vague if not diffuse, and the communal
sanction for which can be swift and cutting. These nonlegal rules and obligations are
followed and fulfilled in part because failure to do so brings upon the transgressor such social
sanctions as induced feelings of guilt or shame, gossip, shunning, ostracism, and not
infrequently, violence. In one sense, to be sure, their authority and power is that of ‘the
group,’ i.e., relations between individuals, multiplicity of relations, and relations among those
relations (cf. Caws 1984). And that group is phenomenologically captured with ‘the Look’ of
‘the Other,’ the Look symbolizing those sanctions for norm violation that entail a disparaging
glance or expression of disapproval or disgust, often as a prelude to shunning, ostracism or
violence. This is one reason effective norms typically have strong roots in the soil of small
groups and communities, as sanctions are ready at hand and swiftly applied. And yet, as
Philip Pettit argues, sanctions or rewards for norm noncompliance or compliance need not
involve intentional expression through word or deed: ‘…[P]eople are rewarded by being
thought well of, and punished by being thought badly of, whether or not those attitudes are
intentionally expressed. And I can know that I am rewarded or punished in such a manner by
others—I can bask in their good opinion or smart under their bad opinion—without their
actually doing anything’ (Pettit 2002, pp. 280-81). The feeling of guilt or shame may make
the external enforcement of internalized norms unnecessary. Among the tangible and
intangible rewards attached to the compliance with social norms one finds increased esteem,
trust and, most importantly, cooperation.

From table manners to rites of passage (from birth to death) marked by routine, solemnity or
celebration, conformity to social norms can bring in their wake social order and successful
collective action, while creating and maintaining cultural meaning(s). Similar to the Sartrian
notion of the practico-inert (Caws 1984, pp. 155-88), social norms can appear inscribed with
the necessities of nature, their exigencies unavoidable and ubiquitous, emblematic of both
obstacle and opportunity. Historically, and at least up until the modern period, norms have
changed rather slowly; yet our own time retains something of the stability and persistence of
norms: ‘Where faddism is the norm, the rapid succession of fads indicates norm stability not
instability’ (Posner and Rasmusen 1999, p. 379). Still, norms can and often do rapidly
change, a comforting thought when considering norms of a perverse or pernicious variety
(e.g. the duel or vendetta). Norm entrepreneurs responsible for initiating bandwagon effects
and norm cascades (Sunstein 1997, p. 38), for example, can change norms for better and
worse.

Some social norms are universal (e.g., the prohibition of incest), while others are more
localized, what Elster (1989) calls ‘group specific:’ owning a Volvo station wagon among
middle class ‘soccer moms’ in Santa Barbara, California (at any rate, before the advent of the
luxury SUV), or workers and managers with differing views on what constitutes ‘fair
distribution’ (p. 99). Social norms, as such, are neither good nor bad, but rather become
benefit or burden insofar as they facilitate or constrain behavior guided by moral values,
practical reasons or instrumental ends: ‘Social norms do coordinate expectations. They may
or may not help people to achieve cooperation’ (p. 97). The behavior guided by these norms
may be strongly reinforced by self-interest, as is the case with group norms of ‘exclusion’ and
‘difference’ (Hardin 1995). Russell Hardin argues that self-interest is in fact paramount in
those self-enforcing universalistic norms sustained by dyadic and small number interactions,
like promise-keeping and truth-telling, wherein one will have a long-term interest in
maintaining the relationship served by the norm. Moreover, universalistic norms without
dyadic sanctions or enforcement are often comparatively weak, as would be a norm of
trustworthiness in a large society.

One is hard-pressed to argue with C. Fred Alford’s (1994) contention that ‘to exclude,
ridicule, ignore, belittle, or criticize an outsider is a time-honored way of creating cohesion
within a group’ (p. 29). And questions of the dynamics of group relations, toward enhancing
cohesion or otherwise, might interest us if only because

impressive clinical evidence indicates that regardless of the individual’s maturity and psychological
integration, certain group conditions tend to bring on regression and activate primitive
psychological levels. Small, closed, and unstructured groups—as well as groups that are large,
minimally structured, and lacking clearly defined tasks to relate them to their environment—tend
to bring about immediate regression in the individual, a regression that consists in the activation
of defensive operations and interpersonal processes that reflect primitive object relations
(Kernberg 1998, p. 7).

The role of social norms vis-à-vis such fine-grained group-psychological dynamics is largely
terra incognita in the legal literature.

The operation of social norms often takes place, as it were, behind our backs, with some
degree of self-consciousness regarding norms surfacing in cases of egregious or frequent
norm violation or, for instance, when a subcultural group, such as a gang, draws attention to
itself through its regular and flagrant (or flamboyant) violation of popular or culturally
predominant norms, thereby remaining true to the dominant norm within their group. As Cass
Sunstein (1997) notes, in their own way, individual members of such groups ‘may be the
most committed of conformists.’ Collective awareness or reflexivity regarding many social
norms thus appears, in the first instance, dependent upon norm violation. Brennan and Pettit
(2004) accordingly speak of

norms that most of us are barely conscious of taking our guidance from, since they are not often
supported in a surrounding discourse of general commendation and critique and are not reflected
in levels of common or mutual awareness. They may include the norms that govern turn taking in
conversation, the use of eyes in relation to others, the distance at which one stands in speaking to
another, and a host of such unnoticed but not merely mechanical regularities (p. 282).

And while the internalization of social norms may take place below the surface of
consciousness, what bears repeating is the proposition suggested at the outset by Pettit and
reiterated here by the economist Kaushik Basu (1998): ‘It is worth adding that at times social
norms can get internalized to the extent that they do not need social enforcement, and are
adhered to by individuals of their own accord’ (p. 2). The absence of social enforcement is a
form of direct motivation, whereas the use of sanctions is a form of indirect motivation for
norm compliance. We have sufficient warrant at this juncture to draw a tentative conclusion
to the effect that (in some sense) social norms are capable of choreographing much of our
lives in the daily round: the intriguing question revolving around the identification of who or
what, in the end, is the choreographer? Who is authorized or qualified to change the
choreography? Are all choreographies of equal significance or worth? What are the relevant
criteria for assessing various choreographies?

Social norms are in fact omnipresent: from the bedroom to the boardroom, and often obdurate
and opaque: after all, traditions might be thought of as those social norms that have the
‘sanction of time.’ But accounting for the tenacity and opacity of traditions has proven
conspicuously elusive to social scientists and professional philosophers. While it serves some
purposes to distinguish social norms from tradition (Elster 1989), it’s often quite difficult to
make hard and fast categorical distinctions between traditions and customs on one hand, and
social norms on the other, as there’s clearly a strong (Wittgensteinian) family resemblance if
not genetic relation between all three phenomena.

II – Legal Theory and Social Norms

Heretofore, and perhaps by default, the study of social norms has largely been the prerogative
of anthropologists and sociologists. Today, however, legal theorists, including law-and-
economics devotees, have engaged in trans-disciplinary cognitive border raids and trades, one
consequence of which is that by ‘the mid-1990s, norms became one of the hottest topics in
the legal academy’ (Ellickson 1998). Legal scholars in the areas of constitutional law, tort
law, contract law, and criminal law have all looked to social norms as a possible means to
address significant or recalcitrant problems in their respective areas specialization (see
Massaro in Bandes 1999). In part this interest in social norms was a direct consequence of
learning the range of utility for rational choice models in the law-and-economics genre. In
little over a decade’s time, the interest in social norms has noticeably cooled, conspicuously
in criminal law, the one legal domain where the descriptive findings of social norm models
may have had the least presumptive relevance for proposals designed to change targeted
behaviors. In this instance, programmatic engineering or tinkering with social norms has
proven ineffective if only because ‘criminal law typically enters where social norms’ hold is
strongest among nonoffenders but is, for complex reasons, not powerful enough to deter
offenders’ (Massaro in Bandes 1999, p. 91). Robert Weisburg (2003) makes the selfsame
point in an especially pellucid article: ‘in its loose eclecticism, norms analysis is peculiarly
incongruent with the realm of criminal law, because the criminals society most and most
rightly fears, exhibit both a pathological indifference to, and a compulsive inability to obey,
the social norms that supposedly guide good behavior’ (p. 470).

Legal minds still infatuated with social norms that rely on a relatively weak grasp of the
mechanisms of complex emotions, would do well to heed an argument from Martha
Nussbaum in Hiding from Humanity: Disgust, Shame and the Law (2004). Nussbaum finds
that one of the emotions criminal law theorists have given inordinate attention to, namely
shame, ‘is likely to be normatively unreliable in public life, despite its potential for good’ (p.
15). Indeed, those who have predicated their proposed criminal law reforms upon putative
shaming mechanisms have conspicuously failed to realize ‘how labile, complex, and ill
understood this basic emotion is’ (Massaro in Bandes 1999, pp. 91-92). Even John
Braithwaite’s (1989) fairly nuanced criminological theory of ‘reintegrative shaming,’ which
Nussbaum is otherwise sympathetic to, is criticized for failing to sufficiently distinguish guilt
from shame. She would in fact simply re-classify his proposal within the (Kantian) ‘universe
of guilt punishments’ (pp. 240-41). In short, although some forms of shame undoubtedly have
positive ethical value, cognizance of the various pathologies that may be prompted by social
shaming should preclude facile reliance on this emotion in the propagation of social norms
designed to be conducive to individual flourishing and the common good (cf. Markel, 2001
and 2007).

And while Nussbaum does explore some cross-cultural issues in the study of such emotions
as disgust and shame, much of the literature on social norms has a rather parochial and
provincial quality to it. This of course need not be a liability insofar as the legal order is
likewise parochial or provincial, but in an era of globalization, with transnational (e.g. the
European Union) and international legal orders, arbitrary or ill-considered national and
cultural circumscription of the social scientific and scholarly work in this regard may render
this literature irrelevant to many of our more salient or urgent economic, political, and
environmental issues and problems. Moreover, beginning with the seminal studies of
Solomon and de Sousa, and most recently evidenced, for example, in works by Ben-Ze’ev,
Elster, Goldie, and Nussbaum, there is a growing body of excellent philosophical and
psychological studies of the emotions. Unfortunately this literature has yet to systematically
treat the relation between the emotions and social norms in a manner both befitting the
concerns of legal practitioners and reflective of the clarity indispensable for any legal theory
with philosophical integrity. No doubt the disciplinary division of labor and the trends toward
increased cognitive specialization can be invoked as prominent explanatory variables. In this
respect, Nussbaum’s Hiding from Humanity, alongside the work of Robert Solomon (below),
is uncommon and timely, perhaps portending more studies along these lines capable of
meeting such desiderata

A rather succinct description of the generation of social norms is found in Brennan and
Pettit’s The Economy of Esteem: An Essay on Civil and Political Society (2004): “Norms
materialize as regularities in social life, because there is general approval for the pattern of
behavior involved, disapproval for the failure to elicit that behavior, or the expectation of
such general approval or disapproval” (p. 267). In this account, social norms are created and
persist with the ‘intangible hand’ of an ‘economy of esteem,’ a hand whose prints are distinct
from both the ‘invisible hand of the marketplace’ and the ‘iron hand of the state.’ That said,
we are reminded that ‘both the institutions of the market and the law themselves presuppose
and depend upon a regime of robust supportive norms’ (p. 265). While Brennan and Pettit
present us with a more than plausible picture of the generation (the how and why) of social
norms, they don’t really endeavor to explain the processes by which these norms are
internalized. This explanatory lacuna has, however, been courageously addressed in an article
by Robert Cooter (1996), well and succinctly summarized here by his sometime collaborator,
Melvin Eisenberg (1999):

[Cooter] focuses on three processes by which social norms are internalized: a Freudian process, in
which the repressed memory of parental sanctions for childhood transgressions becomes
transmuted into an adult superego; a Piagetian process, in which children perfect their ability to
internalize norms as they acquire the capacity for general reasoning; and a Weberian process in
which actors internalize the norms of social roles (pp. 15-16).

I leave it to others to assess the cogency of Cooter’s explanatory account of the

internalization of social norms, an account of merit owing to its recognition of the need for
some sort of social-psychological explanation in the process of norm internalization,
consolidation, and persistence.
As much of human behavior is subject to norm constraints and the penalties attached to their
violation (be it shame, guilt, shunning, exclusion, ostracism, or emotional and physical
violence), or the rewards attached to their compliance (increased esteem, trust, cooperative
behavior), it helps to distinguish between moral, social and legal norms. For our purposes,
we’ll elide the differences between the first two (i.e., ignoring moral norms as such),
assuming that some social norms are at the same time moral norms or contain moral
principles, and focus instead on the distinction between social norms in general and legal
norms in particular, highlighting the contrast between social norms and those legal norms
directly or indirectly associated with the institutions or prerogatives of the State.

Whilst the distinction between social and legal norms may be transparent with respect to the
functions and responsibilities of the State, it is the interaction or precise relation between
these two kinds of norms that are the particular foci of legal theorists. The precise locus of
theoretical concern is analogous to the differences in contemporary Anglo-American political
philosophy between the Rawls of a Theory of Justice (1971) and the Nozick of Anarchy,
State, and Utopia (1974). Thus libertarians (Nozick) by temperament are inclined to
appreciate that set of collective action problems seemingly solved by social norms apart from
or irrespective of the State, while contemporary liberals (Rawls) call upon the State and its
legal norms to—so to speak—fill in the gaps left by insufficient or inefficient norm
compliance (yet both Rawls and Nozick draw upon this or that feature of Kantian ethics, and
both are Liberals in the philosophical and historical sense).

However, economists of a libertarian bent, like neoclassical economists in general, rely on a

rational choice methodology (on which, see Amadeae 2003, Cox 2004, Hausman 2003, Sen
2002, Green and Shapiro 2005, and Udehn 2003) that privileges preferences produced by
‘rational self-interest’ and thus is not, in general, well-suited to an appreciation of social
norms (yet see Eric Posner below). There is increasing recognition of this fact from within
economics:

Although sociologists and anthropologists have long understood the central role played by norms,
economists have traditionally viewed them as peripheral to economic decisions (notable exceptions
are Thomas Schelling, George Akerlof, and Robert Sugden). The fact is, however, the norms
influence terms of employment, the amount that people save and consume, attitudes toward debt,
decisions about when to retire, and a host of other economic variables. Even property rights are
governed to a considerable extent by social expectations about who is entitled to what [references
omitted] (Young 2005).

Whatever the limitations of rational choice methodology—and those are perhaps more
apparent in political science and sociology than in economics—it is hard to quibble with
Elster’s conclusion that ‘the continued dominance of neoclassical theory is ensured by the
fact that one can’t beat something with nothing’ (Elster 1986, p. 27).

The theoretical debate here is chock full of practical implications and consequences for
public policy, as all sides well realize. The fundamental point from a public policy
perspective is that any theory of institutional design or regulation must minimally consider
two questions: 1) what existing social norms work with or against our regulatory (legal)
purposes, and 2) the likelihood that a regulatory regime will give rise to yet new norms or
increase the salience of otherwise weak or dormant norms (Pettit 2002). Needless to say,
these are not tasks for the sociologically timid or politically faint of heart, but remain the
sorts of questions legal theorists are constitutionally equipped—with the requisite
transdisciplinary sophistication—to consider.
A social norm may arise or persist because of its contribution to solving a co-ordination problem,
for instance when it supports or facilitates a ‘convention’ (Lewis 1969) wherein members of a
group realize a benefit by conforming to a behavioral regularity (thereby achieving the equilibrium
so enchanting to neo-classical economists). Norms that reinforce self-interest (e.g., everyone
driving on the right side of the road, or the left as the case may be), while assisting in the
formation of equilibrium, are what Basu terms, appropriately enough, ‘equilibrium-selection
norm[s].’ Such norms are the bailiwick of economists, given their behavioral affinity with the
exiting topical foci of neo-classical economics. It is sometimes difficult to ascertain exactly which
norms support or go against self-interest, for what at first may appear to be an instance of the
latter, may turn out on closer inspection to be yet another example of the former:

a person in need can expect help from other members of the tribe or the village, the explicit
understanding being that the help will be reciprocated at other times when fortunes are
reversed. This norm can be thought of as a rationality-limiting norm [Basu using ‘rationality’
here in the constricted sense of the economist] since the person who helps out the destitute
seems to do so against his self-interest. But we can take a long-term perspective on this and
argue that if an individual refuses to help when it is his turn, the whole system can collapse.
And so, in a manner akin to the repeated Prisoner’s Dilemma, the norm of reciprocity may be
an equilibrium-selection norm (Basu 1998, p.5).

Insofar as social norms have permeated virtually every nook and cranny of collective
behavior, their significance for solving collective action problems is not surprising. It is the
precise delineation of that role and its mechanisms vis-à-vis the law, however, that causes all
the trouble, as a comparison between the work of Cass Sunstein and Eric Posner will make
clear below. Stefan Sciaraffa (2005) here explains how social norms are germane to
application of the negligence standard in tort law:

Most cases in tort law are governed by the negligence standard. Under this standard, a defendant
is liable for injury to another only if the injury resulted from her ignorance. Negligence is a failure
to meet a standard of reasonable care. In some contexts, courts have held that actions in
conformity with a prevailing social norm meet, as a matter of law, the standard of reasonable care
(the per se rule). In other contexts, the courts have held that the fact that the defendant has
followed the prevailing social norms is evidence for the jury to consider in determining whether the
defendant has met the standard of reasonable care (the evidentiary rule). In yet other contexts,
courts have held that the defendant’s following the prevailing social norms has no evidentiary
value whatsoever (the no-evidence rule). The modern rule of custom rejects the per se rule in
favor of the evidentiary rule save for one major exception—cases of medical malpractice (and
perhaps other cases of professional malpractice). A medical professional’s conformity to or failure
to follow the norms of the medical community constitutes per se reasonable care or negligence,
respectively.

And in addition to the fact that it is not easy to draw a sharp distinction between social norms
and law, the relation between them is not simply or only a matter of preferring one over the
other (non-coercion v. coercion), as roles (father, merchant, citizen, etc.) and their attendant
norms can be (and frequently are) fortified by legal requirements: indeed, some roles ‘may
even owe their existence to law’ (Sunstein 1997, p. 43). So law may, indirectly or
circuitously, contribute to the creation and maintenance of social norms, not simply replace
them, as was the case historically with some norms of retribution, such as the blood feud.

In addition to the creation, maintenance or elimination of social norms, and the direct
invocation of social norms (as in the example above from tort law), the law may also serve as
a medium of sublimation: ‘often violent demands for vengeance may be sublimated and
satisfied by law’ (Solomon in Bandes 1999, p. 124). This is a provocative thesis,
distinguishable from the aforementioned concerns of Massaro and Weisburg. Robert
Solomon, prominent among a select group of philosophers responsible for making the study
of the emotions respectable in contemporary analytic philosophy (beyond its prior obsession
with epistemology and philosophy of language) persuasively argues that ‘vengeance is not
just the desire to harm but the desire to punish for good reason and to the right measure’ (p.
142). Solomon elaborates:

In many cultures (let us not leap to label them ‘primitive’), vengeance and avenging wrongs are a
matter of personal and family honor. In civil society, vengeance and avenging wrongs are a matter
of personal and family honor. In civil society, vengeance and avenging wrongs become matters of
common justice and law, but they are not thereby rendered irrelevant to the proceedings (p. 129).

And why are they not irrelevant? ‘It is the heart of vengeance as well as the basis for criminal
law, the idea that the punishment should “fit” the crime’ (p. 137). Solomon concludes that
while vengeance admittedly is a ‘powerful and therefore dangerous passion,’ its sublimation
in both civil and criminal law helps us to appreciate its ‘capacity for rationality, prudence,
and cultural shaping’ as well (p. 144).