It is important in this regard that social norms are often a function of existing information. If people start to believe that smoking is dangerous to themselves and to others, it becomes more likely that social norms will discourage smoking. Certainly there has been a dramatic norm cascade in the last fifty years with respect to smoking, a cascade fueled in large part by judgments about adverse health effects. Shifts in norms governing behavior may well be produced by new information about risk (although norms can shift in both directions; sometimes a perception of dangerousness increases the attractiveness of behavior). One can imagine similar information-induced norm cascades with respect to diet, sugar consumption, exercise, and unsafe sex. In fact, people often try to bring norms into accord with existing information.
Because the provision of information, a kind of nudge, is the least intrusive regulatory strategy, it should be the preferred option. Other nudges may also help. Whether more aggressive strategies make sense depends on their costs and benefits (see part II).
Money
A complex network of social norms governs the acceptable uses of money. This is so in two different respects. First, some social norms impose sanctions on using money as a reason for action. Here people are not supposed to engage in certain acts if their reason for doing so is financial gain. Second, some social norms make different kinds of money nonfungible: that is, the prevailing norms require different kinds of money to be used for different purposes.9 These sets of norms raise many complexities. They are also entangled with the expressive function of law. Finally, they suggest that it is sometimes inappropriate to infer general valuations from particular choices, because those choices are a function of norms that are limited to the context in which they are made.
Let us begin with norms punishing the use of money as a reason for action. An instructive article by Joel Waldfogel, The Deadweight Loss of Christmas,10 will help to introduce the point. Waldfogel finds no less than four million dollars in annual deadweight losses from the fact that people give in-kind presents rather than mere cash on Christmas Day. Waldfogel’s analysis is simple. For those who give presents, the cost of Christmas is higher than it would be if they gave cash instead. The cost of gift-giving includes not just the expenditure of money but also the time and effort devoted to deciding what gifts to give. And for those who receive presents, the benefit is typically lower than it would be if they received cash. Many people don’t like what they get, and even if they do like it, they don’t like it a lot. Recipients would be better off if they received cash, which they could use as they wished—just as food stamps are worth less than their dollar value because, unlike cash, they can be spent only on food. The four-million-dollar “waste” is a result of these sorts of considerations.
Waldfogel’s findings are intriguing, but he neglects the role of social norms. In many contexts, norms severely discourage the giving of cash rather than, say, a tie, a book, or a sweater. Under existing norms, a cash present—from a husband to a wife or a father to a son, for example—may reflect contempt or indifference. It might even seem to be a joke. This is precisely because cash is both impersonal and fungible. A tie or a book—whether or not it is a wonderful tie or a wonderful book—fits well with norms that call for a degree of individualized attention on the part of the donor. Waldfogel devotes too little attention to the cluster of Christmas-related norms and the social meaning of diverse forms of gift-giving.
What can be said for Christmas can be said for many areas of social life in which money is deemed an inappropriate basis for action. If someone asks an adult neighbor to shovel his walk or to mow his lawn in return for money, the request will often be regarded as an insult, because it is based on an inappropriate valuation of the neighbor. The request embodies a conception of neighborliness that is, under existing norms, judged improper; a neighbor is not a servant. The norm is in place even if the offeree would in some sense be better off if he received the money in return for undertaking the task.
Quite generally it is inappropriate to offer money to one’s friends in return for hurt feelings, disappointments, tasks, or favors. If you have been unkind, offering a friend an apology is a good idea; offering a check is not. In fact, the universe of cases in which norms disallow monetary exchange is very large, and unremarked upon only because it is so taken for granted. It would be quite strange to give an adult a certain sum of money after hearing that his parent had died or to ask a colleague to clean up your office for, say, $250. This is so even though favors are of course common, and even though there can be in-kind implicit transactions between friends, neighbors, and even spouses.
There is often a connection between norms that block exchanges and ideas about equal citizenship. The exchange can be barred by social norms because of a perception that, though there may be disparities in social wealth, the spheres in which people are very unequal ought not to invade realms of social life in which equality is a social norm or goal. The prohibition on vote trading is one example. So too with certain social taboos on the use of wealth to buy services or goods—for example, organ donation—from other people. (I do not mean to resolve the question whether such taboos are a good idea.) Some part of the intricate web of norms covering the exchange of money among both friends and strangers is connected with the principle of civic equality. Monetary exchange would reflect forms of inequality that are not legitimate in certain spheres.
Familiar objections to “commodification”11 are part and parcel of social norms banning the use of money. The claim is that people ought not to trade sexuality or reproductive capacities on markets, because market exchange of these “things” is inconsistent with social norms identifying their appropriate valuation. The claim is not that markets value sexuality “too much” or “too little”; rather, it is that markets value these activities in the wrong way. Under existing practice, social norms of course affect the adoption of children and impose severe sanctions on any effort (literally) to sell children even to willing and loving parents. The fact that the adoption market is accompanied by safeguards making any “sale” at most implicit is meant to reaffirm existing norms.
This point very much bears on law. In many ways, law tries to fortify norms regulating the use of money and to prevent new social practices from eroding those norms. This is an important domain for the expressive use of law. It is connected with the effort to create separate social spheres—some in which money is appropriately a basis for action, some in which money cannot be used. Thus the law bans a wide range of uses of money. Votes cannot be traded for cash; the same is true of body parts. In many places, prostitution is illegal. There is a sharp social debate about surrogate motherhood, and those who seek legal proscriptions are thinking in expressive terms. One of their goals may be to fortify existing social norms that insulate reproduction from the sphere of exchange. Or their argument may be less instrumental. They may seek to make a “statement” about reproduction without also seeking to affect social norms.
Equality
Norms of partiality12 are an important part of social inequality. Social norms may require women to perform the most domestic labor; in some places, women who refuse to do so may incur social sanctions and may even feel guilty or ashamed. The social meaning of a woman’s refusal may be a rejection of her appropriate gender role, and the refusal may be interpreted by others as a signal of a range of undesirable traits. In the areas of both race and gender, prevailing norms help constitute inequality. And here, as elsewhere, collective action is sometimes necessary to reconstitute existing norms.
Private norm entrepreneurs may be able to accomplish a great deal. With respect to the division of domestic labor between men and women, private efforts at norm management have played an important role. Individual acts that are expressive in character—a refusal to clean clothes or to make dinner, for example—are an important part of modern feminism. But the expressive function of law is especially important here, and it can move to the fore in public debates. If a discrimi
natory act is consistent with prevailing norms, there will be more in the way of discriminatory behavior. If discriminators are ashamed of themselves, there is likely to be less discrimination. A large point of law may be to shift social norms and social meaning (see chapter 1).
Recall in this connection that many restaurant owners and innkeepers supported the Civil Rights Act of 1964, which would have prevented them from discriminating. Why would people want the state to act against them? The answer lies in the fact that the law helped shift social norms and the social meaning of nondiscrimination. Whereas nondiscrimination would formerly signal a willingness to act on a race-neutral basis—and hence would trigger social norms that call for discrimination on the basis of race—it would henceforth signal a willingness to obey the law and hence fail to trigger adverse social norms.
Social norms help constitute a wide range of qualitatively different kinds of valuation, and these diverse valuations much affect behavior and the social meaning of behavior. These norms are omnipresent and are usually taken for granted. Imagine, for example, that Jane values a plant in the same way that most people value their children or that Sandy values her car like most people value art or literature. Antidiscrimination law is often designed to change norms so as to ensure that people are treated with a kind of dignity and respect that discriminatory behavior seems to deny.
The point is not limited to race and sex equality. Consider, as an especially interesting example, the movement for animal welfare and animal rights. Some people think that animals should be treated with dignity and respect and not as if they exist solely for human consumption, play, and use. This view is very much about social norms; it need not entail the further claim that animal life is infinitely valuable. It is best taken as a recommendation for a shift in norms governing the treatment of animals, accompanied by a judgment that the new norms will have good consequences for what human beings do. The recommendation may be based on the view that if we see animals (and nature in general) in this way, we will solve collective action problems, ecological in nature, faced by human beings; it may be based on a noninstrumental effort to extend ideals of basic dignity to all living things. In its most powerful form, the goal is to ensure that other living creatures are treated with kindness and respect, and not as if they are mere things. The expressive function of law can be important in making that more likely.
Qualifications
The discussion thus far has certainly not been exhaustive. There are many areas in which law is used in an expressive way, largely to manage social norms. Criminal law is a prime arena for the expressive function of law; as we have seen, the debate over flag burning has everything to do with the statement that law makes. I hope I have said enough to show the wide range of possible “expressions” via law and to see how the law might plausibly be used to manage social norms.
I now qualify the basic argument. The first set of qualifications stems from a hard question: What if the statement seems right but the consequences are unfortunate? The second set of qualifications emerges from the need to impose constraints on the expressive function of law.
Consequences
I have suggested that some expressivists are concerned with norm management, whereas others are concerned with the “statement” law makes entirely apart from its consequences. Expressivists can be both fanatical and ineffectual—a most unfortunate combination.
For those who endorse the expressive function of law, the most important testing cases arise when (a) people support laws because of the statement made by such laws but (b) the effects of such laws seem bad or ambiguous, even by reference to the values held by their supporters. How should such cases be understood? My basic proposition is that any support for “statements” via law should be rooted in plausible judgments about their effects on social norms and hence in “on balance” judgments about their consequences. Here we can bridge the gap between consequentialists and expressivists by showing that good expressivists are consequentialists too. They want to make the world better, not just to say things. If saying things makes the world better, then things should be said; if not, then not.
Consider, for example, the debate over emissions trading in environmental law. With such trading, polluters are allowed to buy and sell pollution rights, with the goal of reducing pollution to the right degree, and at the right cost. Some of the most pervasive objections to emissions trading are expressive in nature.13 Critics claim that emissions trading has damaging effects on social norms by making environmental amenities seem like any other commodity: a good that has its price, to be set through market mechanisms. They contend that emissions-trading systems may have damaging effects on social norms by making people see the environment as something unobjectionable and without special claims to public protection. To some extent, the suggestion might be taken as an empirical prediction and evaluated as such. Will emissions-trading systems have substantial effects on social norms associated with the environment?
On that issue, we may be able to make some progress. We have an empirical question that is subject, in principle, to empirical resolution. If emissions-trading programs could be shown to have bad effects on social norms, they might be rejected notwithstanding their other virtues; perhaps the overall effects on such programs would be bad. (Compare this to the question whether to require recycling; mandatory recycling might well have better effects on norms than curbside charges.) But in the area of emissions-trading programs, we should be skeptical about the expressivist’s concern. There is no evidence that such programs weaken people’s commitment to clean air and water. Public attitudes toward the environment do not depend much on whether government has a command-and-control system or instead relies on emissions trading or other economic incentives.
Some people appear to think that it is intrinsically problematic to “say,” through law, that environmental amenities are ordinary goods with appropriate prices. Is this a convincing objection to emissions-trading programs if (as we might suppose) such programs can save billions of dollars in return for the same degree of environmental protection? It is hard to see the force of the objection if, in fact, costs are lower, jobs are saved, the air is cleaner, norms are held constant, and fewer people are poor. On what basis should the “statement” made by law be taken to be cause for concern?
Or consider the question whether the minimum wage should be significantly increased. A possible justification for such increases is expressive in nature. Many people think that the government ought to make a statement to the effect that human labor is worth, at a minimum, $X per hour; perhaps any amount less than $X seems like an assault on human dignity. But suppose too that the consequence of the minimum wage is to increase unemployment among the most vulnerable members of society. Why should we care about mere statements, if the overall effects are bad? If a significant increase in the minimum wage would really drive vulnerable people out of the workplace in significant numbers, it is not easy to see why people should support it. I do not mean to take a final stand on the question whether the minimum wage should be significantly increased; that depends on the consequences. The point is that expressive approaches to law verge on fanaticism where effects on norms are unlikely and where the consequences of the “statement” are bad.
Constraints
What barriers should there be to governmental efforts at managing social norms? The simplest answer is simple: the same barriers that apply to any other kind of governmental action.
Thus, for example, government should not be permitted to invade rights, whatever our understanding of rights may be. The rights constraints that apply to government action generally are fully applicable here as well. If government tried to change social norms, through legislation, so as to ensure that women would occupy domestic roles, and men would not, it would violate the Equal Protection Clause. If government tried to change social norms, through legislation, to ensure that everyone would be Protestant, it would violate the right to religious liberty. At least these conclusion
s would make sense if government action is coercive.
Quite apart from the question of rights, there is always a risk that efforts at norm management will be futile or counterproductive. When government attempts to move social norms in a particular direction, it may fail miserably (see chapter 9). It is necessary to ensure that those who engage in norm management are trusted by the people whose norms are at issue. For this reason, it may be best for government to attempt to enlist the private sector to ensure that people with authority in relevant communities are participating in the process.
Some people would go further than this. From one view, any effort at norm management is illegitimate; this is a project that is off-limits to government. But it is hard to see how this argument might be made persuasive. Effects on social norms are not easily avoided; any system of government is likely to affect norms, including through the creation of the basic systems of contract, tort, and property. With respect to prevention of violent crime, intentional norm management is a conventional and time-honored part of government. To be sure, we could imagine abuses, even unspeakable ones. But the proper response is to insist on a wide range of rights-based constraints on the management of social norms through law.
No system of law can avoid that managerial role. Even markets themselves—which are very much a creation of law—are exercises in norm management. In these circumstances it is best for government to proceed pragmatically and contextually, seeing which norms are obstacles to well-being and using law when it is effective in providing correctives.
Notes
1. 163 US 537, 544 (1896) (noting that segregation laws “do not necessarily imply the inferiority of either race to the other”).
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