E-Book Overview
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.
E-Book Content
law and social norms
Copyright © 2000 The President and Fellows of Harvard College
Copyright © 2000 The President and Fellows of Harvard College
Law and Social Norms eric a. posner
鵺
Harvard University Press Cambridge, Massachusetts London, England
Copyright © 2000 The President and Fellows of Harvard College
Copyright © 2000 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Second printing, 2002 First Harvard University Press paperback edition, 2002 Library of Congress Cataloging-in-Publication Data Posner, Eric A. Law and social norms / Eric A. Posner. p. cm. Includes bibliographical references and index. ISBN 0-674-00156-7 (cloth) ISBN 0-674-00814-6 (pbk.) 1. Sociological jurisprudence. 2. Law and economics. 4. Collective behavior. 5. Game theory. I. Title. K370.P67 2000 340'.115—dc21
3. Social norms.
99-088226
Copyright © 2000 The President and Fellows of Harvard College
To my parents 鵺
Copyright © 2000 The President and Fellows of Harvard College
Copyright © 2000 The President and Fellows of Harvard College
Contents
1
Introduction: Law and Collective Action
part one 2 3
4 5 6 7 8 9
11 36
Legal Applications
Gifts and Gratuitous Promises Family Law and Social Norms Status, Stigma, and the Criminal Law Voting, Political Participation, and Symbolic Behavior Racial Discrimination and Nationalism Contract Law and Commercial Behavior
part three 10 11 12
Models of Nonlegal Collective Action
A Model of Cooperation and the Production of Social Norms Extensions, Objections, and Alternative Theories
part two
1
49 68 88 112 133 148
Normative Implications
Efficiency and Distributive Justice Incommensurability, Commodification, and Money Autonomy, Privacy, and Community
169 185 203
Notes References Acknowledgments Index
225 237 253 255
Copyright © 2000 The President and Fellows of Harvard College
Copyright © 2000 The President and Fellows of Harvard College
law and social norms
Copyright © 2000 The President and Fellows of Harvard College
Copyright © 2000 The President and Fellows of Harvard College