We might think of the underlying laws as exercises in norm management—and extremely inexpensive ones at that. They are inexpensive in the sense that taxpayer resources may be unnecessary to produce compliance. And in the best cases, expressive law might even start, shatter, or fuel a cascade. Once compliance begins and is widely seen as such (especially from “fashion leaders”), there might well be compliance cascades, spurred by both informational and reputational influences. In the context of sexual harassment and smoking, law does seem to have caught a wave—and to have enlarged it significantly (though not nearly enough).7
A key point here is that the law was ahead, but not too far ahead, of the public at large. If the law were not ahead of the public, it would add nothing and in that sense have no effect at all. But if the law moved too far ahead of the public, it could not be effective without aggressive enforcement activity. And a law that is too far ahead of the public is unlikely, for that very reason, to be aggressively enforced; prosecutors and jurors are unlikely to punish people when the public does not support punishment. Law may be most effective when it goes beyond existing social values but remains close enough that it can claim to draw on them.
Thus far I have emphasized the situation from the point of view of the would-be violator. But a law has effects on private enforcers as well. In the absence of a legal ban, people who object to smoking in public places might well be timid about complaining, even if they find cigarette smoke irritating or worse. The same people are likely to be energized by a supportive enactment, which suggests both that they are right and that their beliefs are generally shared. With law on their side, they are less likely to appear to be noisy intermeddlers invoking a parochial norm. They can point to a kind of violation. People who complain about speeding, drunk driving, sexual harassment, or smoking in public are far more likely to believe they have a legitimate complaint if the law requires the behavior they seek. Equally important, they are more likely to think that other people will believe they have a legitimate complaint. That can embolden them.
Now of course this is not all of the picture. Among some people, the law has a high degree of moral authority, greatly exceeding the shared but unenacted view of many people. If this is the case, the law’s authority will extend well beyond that of Asch’s unanimous confederates and probably beyond that of Milgram’s experimenter as well. But we cannot fully appreciate law’s moral authority without seeing it as intertwined with the informational and reputational factors that I have been emphasizing.
The Preconditions of Norm Management
When will norm management work without significant enforcement activity? When will it fail? Begin with the case of a rational person who is considering whether to comply with the law. Among the relevant considerations are (a) the likelihood of enforcement; (b) the magnitude of the punishment in the event of enforcement; (c) the reputational costs of violation; (d) the reputational benefits of violation; (e) the intrinsic benefits of compliance (perhaps a refusal to smoke will have health benefits); and (f) the intrinsic costs of compliance (perhaps it is extremely pleasant to smoke and extremely unpleasant not to smoke). By adjusting any of the variables over which it has control, government might be able to achieve greater compliance. For present purposes, my emphasis is on (c) and (d). I have referred to the case of smoking, but we could use any number of examples: driving while drunk, texting while driving, discriminating on the basis of age, using unlawful drugs, or stealing.
To know whether a legal pronouncement will be effective, a key point involves the nature and extent of private enforcement. Recall that in the Asch experiments, the level of error is significantly decreased when people’s answers are given anonymously and also when people are given a financial incentive to answer correctly. These findings suggest that seemingly modest changes in social context counteract the pressure to conform. Consider in this light the close empirical association between visibility and compliance without enforcement. Parking in places reserved for the handicapped and smoking in public are easy to see, and in both cases private enforcement is likely. Drivers do not much like it when nonhandicapped people park in places reserved for the handicapped. By contrast, tax violations and sex offenses tend to be invisible, and hence violators need not worry so much, at the time of violation, about the risk of public opprobrium.
To know whether there will be compliance, it is important to specify the signal sent by compliance and noncompliance. The mere enactment of law can alter the signal that accompanies people’s conduct. For example, enactment of law might make an actor’s conduct seem honorable where it previously seemed cowardly or accusatory or otherwise provided a socially damaging signal. Consider, for example, a teenager who wants to buckle his seatbelt but fails to do so because he does not want to signal his cowardice. A law that requires people to buckle their belts can make a decision to buckle a reflection of compliance with law, rather than a generalized fear. A law that forbids people from driving and drinking, or from texting while driving, might be effective for similar reasons.
In short, the mere existence of the law can alter the “meaning” of compliance, to suggest that those who comply are simply law abiders. Similarly, those who violate the law, under the new circumstances, are no longer courageous but instead (technically) criminals. We can imagine circumstances in which this shift actually increases the level of violations. Some people like to be rebels, and if they violate the law, all the better. But in most communities most of the time, the legal enactment—the statement made by the law—will tend to shift behavior in the desired direction. Consider here the behavioral finding that if people are informed of a social norm, they tend to comply with it. This finding has been applied to increase tax compliance, to reduce use of illegal drugs, and even to encourage doctors to reduce excessive opioid prescriptions.8
At the same time, law’s expressive function can be reduced or even counteracted if there is private support for violations. “People will defy dominant norms or laws, despite considerable risks of punishment, when they enjoy the social support of a ‘deviant subculture’ that continues to endorse the validity of condemned behavior.”9 In such cases, prospective violators are roughly in the position of peer-supported subjects in the Milgram experiment—at least if they have strong reason, based on principle or self-interest, not to comply. If you are a smoker or a drug user, surrounded by smokers or drug users, you might continue to smoke or to use drugs, even if the law prohibits you from doing so. And if the law is perceived as senseless, private support for violations can operate in the same way as a voice of reason in the Asch experiments.
Hence it is possible to find “deviant subcultures” in which violations of law are effectively rewarded, through admiration and even a general increase in stature. It is also possible to find subcultures in which those who comply with the law can be heavily “taxed,” through ridicule, ostracism, or even violence. Drug use is the most obvious example; gang violence sometimes occurs simply because it is expected and rewarded by peers. Laws that are infrequently enforced will, in such communities, be highly ineffective, because private enforcement is lacking, and indeed private forces push hard against compliance. It is even possible to imagine noncompliance cascades; such cascades can involve information, as people witness the violations of prominent others, perhaps including dissident “fashion leaders.” They can also involve reputation, as people learn that in the relevant community, there will be no loss in the good opinion of others, and possibly some gain, for violations.
In this light, it is easy to see why there is a great deal of compliance with legal bans on parking in handicapped spaces and on smoking in public places, whereas there is far less compliance with legal bans on certain sexual behavior and (in certain domains) the Internal Revenue Code. And it is also possible to understand the phenomenon of civil disobedience. When those engaged in civil disobedience are able to reach a critical mass, the relevant law (perhaps it calls for racial segregation) loses its authority, both
as evidence of what should be done and as evidence of what (reasonable) people think should be done. The authority of the law is overcome by the authority of those who disobey the law. Here conformity pressures, cascade effects, and group polarization strongly favor disobedience.
How might government handle the troublesome situations in which violations are both invisible and widespread? One possible remedy would be to let people know (if it is true) about high levels of voluntary compliance. Because people like to do what others do, large effects can come from reminders that most people obey the law or avoid harmful conduct. In fact, there is evidence that taxpayers are far more likely to comply with the tax law if they believe that most people pay their taxes voluntarily and far less likely to do so if they believe that noncompliance is widespread.10 A similar example may be drawn from college campuses. Students with a penchant for “binge drinking” tend to believe that the number of binge drinkers is higher than it actually is. When informed of the actual numbers, they are less likely to persist in their behavior.11 These examples suggest that an understanding of group influences, and of the information conveyed by the acts of others, might be enlisted in efforts to reduce conduct that is unlawful or otherwise dangerous to self and others.
Let us now turn to issues of institutional design. As we have seen, the likelihood and consequences of conformity, cascades, and group polarization very much depend on institutional choices. Recall in particular that people are far more likely to reveal their own information if they are rewarded for a correct group decision rather than for a correct individual decision.
I begin with a brief note on the relationship between dissent and war, with the suggestion that conformity, and suppression of dissent, can undermine military preparedness. I also explore some of the institutions of the U.S. Constitution, suggesting that the founders’ largest theoretical contribution consisted in their enthusiasm for diversity and the “jarring” of diverse views in government. Turning to contemporary issues, I discuss the role of group influences on federal judges and the dispute over “diversity” as a justification for affirmative action in higher education.
Dissent and War
We have seen that an understanding of social influences increases appreciation of the social role of whistleblowers and dissenters, many of whom sacrifice their own self-interest and simultaneously benefit the public. Perhaps the most general point here involves the role of diversity and dissent within democratic institutions. Consider the account of Luther Gulick, a high-level official in the Roose-velt administration during World War II. In 1948, shortly after the Allied victory, Gulick delivered a series of lectures, unimaginatively titled “Administrative Reflections from World War II,” which offered, in some detail, a set of observations about bureaucratic structure and administrative reform.12 In a brief epilogue, Gulick set out to compare the war-making capacities of democracies with those of their Fascist adversaries.
Gulick began by noting that the initial evaluation of the United States, among the leaders of Germany and Japan, was “not flattering.”13 The United States was, in their view, “incapable of quick or effective national action even in [its] own defense because under democracy [it was] divided by [its] polyglot society and under capitalism deadlocked by [its] conflicting private interests.”14 The adversaries of the United States said that it could not fight, and they believed what they said. And dictatorships did seem to have real advantages. They were free of delays, inertia, and sharp internal divisions. They did not have to reckon with the opinions of a mass of citizens, some with little education and little intelligence. Dictatorships could rely on a single leader and an integrated hierarchy, making it easier to develop national unity and enthusiasm, to master surprise, and to act vigorously and with dispatch. But these claims about the advantages of totalitarian regimes turned out to be “bogus.”15
The United States and its allies performed far better than Germany, Italy, and Japan. Gulick linked their superiority directly to democracy itself and in particular “to the kind of review and criticism which democracy alone affords.”16 In a totalitarian regime, plans “are hatched in secret by a small group of partially informed men and then enforced through dictatorial authority.”17 Such plans are likely to contain fatal weaknesses. By contrast, a democracy allows wide criticism and debate, thus avoiding “many a disaster.”
In a totalitarian system, criticisms and suggestions are neither wanted nor heeded. “Even the leaders tend to believe their own propaganda. All of the stream of authority and information is from the top down,” so that when change is needed, the high command never learns of that need. But in a democracy, “the public and the press have no hesitation in observing and criticizing the first evidence of failure once a program has been put into operation.”18 In a democracy, information flows within the government—between the lowest and highest ranks—and via public opinion. Of course dissent can be muted in wartime, and for reasons I have discussed, this muting is a mixed blessing. If everyone seems to be on the same page, morale may be strengthened. But if disagreement is reduced, beneficial ideas—involving the nature, scope, justice, and wisdom of war—may be absent.
With a combination of melancholy and surprise, Gulick noted that the United States and its allies did not show more unity than Germany, Japan, and Italy. “The gregarious social impulses of men around the world are apparently much the same, giving rise to the same reactions of group loyalty when men are subjected to the same true or imagined group threats.”19 Top-down management of mass morale, by the German and Japanese leaders, actually worked. Dictatorships were less successful in the war, not because of less loyalty or more distrust from the public but because leaders did not receive the checks and corrections that come from democratic processes.
Gulick is offering a claim here about how institutions perform better when challenges are frequent, when people do not stifle themselves, and when information flows freely. Of course Gulick is providing his personal account of a particular set of events, and we do not really know if success in war is a product of democratic institutions. The Soviet Union, for example, fought valiantly and well, even under the tyranny of Stalin. But Gulick’s general theme contains a great deal of truth. Institutions are far more likely to succeed if they contain mechanisms that subject leaders to critical scrutiny and if they ensure that courses of action will be subject to continuing monitoring and review from outsiders—if, in short, they use diversity and dissent to reduce the risks of error that come from social influences.
Constitutional Design
These points very much bear on the design of the U.S. Constitution, which attempts to create a deliberative democracy, that is, a system that combines accountability to the people with a measure of reflection and reason-giving. In recent decades, many people have discussed the aspiration to deliberative democracy. Their goal has been to show that a well-functioning system attempts to ensure not merely electoral responsiveness but also an exchange of reasons in the public sphere. The emphasis on reason-giving can be seen as a rebuke to purely populist accounts of democracy, which suggest that majorities should rule, regardless of the justifications they give for what they would like to do. Deliberative democrats are acutely aware of the risks of conformity, cascades, and group polarization. They want to protect liberty as well as self-government.
In a deliberative democracy, the exercise of public power must be justified by reasons, not merely by the will of some segment of society and indeed not merely by the will of the majority. Both the opponents and the advocates of the U.S. Constitution were firmly committed to political deliberation. They also considered themselves “republicans,” committed to a high degree of self-government. But deliberative democracies can come in many different forms. The framers’ greatest innovation consisted not in their belief in deliberation, which was uncontested at the time, but in their fear of homogeneity, their enthusiasm for diversity, and their effort to accommodate and to structure that diversity. In the founding period, a large
part of the nation’s discussion turned on the feasibility of maintaining a deliberative democracy—a republic—in a nation with its heterogeneous citizenry.
The antifederalists, opponents of the proposed Constitution, thought that this was impossible. Thus Brutus, an especially articulate advocate of the antifederalist view, spoke for the classical tradition when he urged, “In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will be constant clashing of opinions; and the representatives of one part will be continually striving against those of the other.”20
The advocates of the Constitution believed that Brutus had it exactly backward. They welcomed the diversity and the “constantly clashing of opinions” and affirmatively sought a situation in which “the representatives of one part will be continually striving against those of the other.” Alexander Hamilton spoke most clearly on the point, urging that the “differences of opinion, and the jarring of parties in [the legislative] department of the government . . . often promote deliberation and circumspection; and serve to check the excesses of the majority.”21 From the standpoint of political deliberation, the central problem is that widespread error and social fragmentation are likely to result when like-minded people, insulated from others, move in extreme directions simply because of limited argument pools and parochial influences. A constitution that ensures the “jarring of parties” and “differences of opinion” will provide safeguards against unjustified movements of view. The authors of the U.S. Constitution had an intuitive understanding of group polarization and cascade effects, because they had observed both of these before, during, and after the revolutionary period.
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