You are on page 1of 12

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. XXXXXXXXXXXXXXXXXXXXX

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).


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. Home Sociology Overview: An Introduction to the Discipline of Sociololgy--An Online Course Sociology Overview: The Normative System of Society Sociology Overview: The 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.


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 othersI can bask in their good opinion or smart under their bad opinionwithout 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 Alfords (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 individuals maturity and psychological integration, certain group conditions tend to bring on regression and activate primitive psychological levels. Small, closed, and unstructured groupsas well as groups that are large, minimally structured, and lacking clearly defined tasks to relate them to their environmenttend 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--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), its often quite difficult to make hard and fast categorical distinctions between traditions and customs on one hand, and social norms on the other, as theres 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-andeconomics 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 decades 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 Braithwaites (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-Zeev, 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, Nussbaums 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 Pettits 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 dont 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 Cooters 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, well 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 toso to speakfill 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 methodologyand those are perhaps more apparent in political science and sociology than in economicsit is hard to quibble with Elsters conclusion that the continued dominance of neoclassical theory is ensured by the fact that one cant 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 equippedwith the requisite transdisciplinary sophisticationto 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 Prisoners 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--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 defendants 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 exceptioncases of medical malpractice (and perhaps other cases of professional malpractice). A medical professionals 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).