On the Nature of Norms: Biology, Morality, and the Disruption of Order
For a long time – and through the now-quaint division of disciplines – morals and norms have been set apart from other behaviorbiasing phenomena. They have also been set apart from each other. Morals are generally ceded in full to philosophers. Norms have been ceded to sociologists. In retrospect, it is not clear why this should be so. Reality is notoriously impervious to taxonomy, and the axis supposedly distinguishing morals from other norms is, after all, arbitrary. Moreover, behavior-biasing phenomena interact in important ways, making the study of parts – without more – just the study of parts. But one thing is clear. To the extent that understanding morals and norms is important to law, studying the two apart from other behavior-biasing phenomena creates a problem. This problem arises because of opportunity costs. Whenever a topic – such as morality – is both relevant to law and without a uniquely legal theoretical foundation, legal thinkers must rely (at least initially) on disciplines claiming expertise. But in a world in which the academy has divided reality into disciplinary slices – which, having once been sundered, are neither differently divisible nor easily recombined – there is an ever-present risk to law of disciplinary capture. As, for example, when legal thinkers may too hastily elevate the pronouncements of one discipline, perhaps the one most hypertrophied or shouting loudest, over another.