The Origin, Development, and Regulation of Norms

For decades, sociologists have employed the concept of social norms to explain how society shapes individual behavior. In recent years, economists and rational choice theorists in philosophy and political science have started to use individual behavior to explain the origin and function of norms. For many in this group, the focus of study is the interaction of law and norms, of formal and informal rules. Exemplified by Robert Ellickson’s Order Without Law, this literature uses norms to develop more robust explanations of behavior and to predict more accurately the effect of legal rules. Norms turn out to matter in legal analysis for many reasons. Sometimes norms govern behavior irrespective of the legal rule, making the choice of a formal rule surprisingly unimportant. Sometimes legal rules facilitate or impede the enforcement of a norm, and the selection of the formal rule matters in entirely new ways, the exact consequence depending on whether the formal rule strengthens or weakens a desirable or undesirable norm. Indeed, in some cases, new norms arise in the presence of different legal rules, making the relevant policy choice one between two or more law-norm combinations. Roughly speaking, by norms this literature refers to informal social regularities that individuals feel obligated to follow because of an internalized sense of duty, because of a fear of external nonlegal sanctions, or both. Law-and-norms scholars view these informal rules as ubiquitous. Though relatively recent, the economics literature uses norms to explain an incredible variety of positive and normative issues: the informal resolution of property disputes among rancher neighbors in Shasta County, California, the preference of the diamond industry for nonlegal means of contract enforcement, the stability of racial discrimination in competitive markets, the effectiveness of various anti-dueling statutes from the previous century and safe-sex education efforts from this one, the reason people vote, the transitional difficulties in moving from a Marxist to a market economy, the general efficiency of the common law, and the operation of the elder share regime governing sumo wrestling in Japan.