Law and Social Norms - Hardcover

Posner, Eric A.

Hardcover

ISBN 10: 0674001567 ISBN 13: 9780674001565

Publisher: Harvard University Press, 2000

Synopsis

What is the role of law in a society in which order is maintained mostly through social norms, trust, and nonlegal sanctions? Eric Posner argues that social norms are sometimes desirable yet sometimes odious, and that the law is critical to enhancing good social norms and undermining bad ones. But he also argues that the proper regulation of social norms is a delicate and complex task, and that current understanding of social norms is inadequate for guiding judges and lawmakers. What is needed, and what this book offers, is a model of the relationship between law and social norms. The model shows that people's concern with establishing cooperative relationships leads them to engage in certain kinds of imitative behavior. The resulting behavioral patterns are called social norms.

Posner applies the model to several areas of law that involve the regulation of social norms, including laws governing gift-giving and nonprofit organizations; family law; criminal law; laws governing speech, voting, and discrimination; and contract law. Among the engaging questions posed are: Would the legalization of gay marriage harm traditional married couples? Is it beneficial to shame criminals? Why should the law reward those who make charitable contributions? Would people vote more if non-voters were penalized? The author approaches these questions using the tools of game theory, but his arguments are simply stated and make no technical demands on the reader.

About this title

About the Author

Eric A. Posner is Professor of Law at the University of Chicago.

From Kirkus Reviews

In the tradition of the Chicago School of law and economics, Posner (Law/Univ. of Chicago) offers an insightful study of the relationship between legal regulation and social norms. Game theory has transformed the study of market behavior, but it has had little impact as yet on legal theory. Posner starts by observing that most forms of collective behavior occur independently of legal rules: indeed, without a system of law, people would still engage in cooperative and selfish behaviors. Posner uses game theory and empirical studies to establish a model of nonlegal collective behavior, arguing that much social interaction consists of a kind of “signaling game,” in which people convey their willingness to conform to social norms and demonstrate their desirability as potential partners in social enterprises. According to Posner, people will conform to such norms (and may even suppress individual preferences or cheating behavior) as rational decisions made in order to receive long-term benefits (economic and otherwise), independent of any consideration of legal incentives. With mixed success, the author then examines the usefulness of this model for an understanding of particular issues in contracts and commercial law, torts, criminal law, and politics. For instance, Posner attempts to use the signaling model to explain why courts enforce commercial contracts but not gratuitous promises (he speculates, with no historical evidence, that this doctrine developed when common law courts deferred to “nonlegal mechanisms” on promise enforcement) and why shaming punishments don’t work (they may become badges of merit in communities that mistrust the government). Finally, Posner critically examines the relationship between social norms and policymaking (especially government attempts to change social norms). Posner argues that law can often be understood as an attempt to use social norms, and he discerns a gradual trend toward displacement of nonlegal by legal regulation (which, he contends, “should not be deplored, as is currently fashionable, but celebrated”). A stimulating application of game theory to law, equally valuable for social scientists and those interested in legal theory. -- Copyright © 2000 Kirkus Associates, LP. All rights reserved.

About this edition

• Publisher: Harvard University Press
• Publication date: 2000
• ISBN 10: 0674001567
• ISBN 13: 9780674001565
• Binding: Hardcover
• Edition number: 1
• Number of pages: 272