Norms and criminal law, and the norms of criminal law scholarship.

• Author: Weisberg, Robert

1. INTRODUCTION

   1. THE ALLURE OF SOCIAL NORMS

      The last decade has seen the emergence of what is now commonly called the study of law and social norms. (1) This cluster of legal commentary has been unusually confident in purporting to offer a fresh perspective on the relationship between law and social behavior. Most broadly put, this school addresses informal social and moral standards and rules which regulate the group and individual behavior to which law attends, and which do so as pervasively as, or perhaps even more pervasively than, the law itself. (2) In its programmatic work, the norms school argues that a useful strategy for lawmakers is to accommodate, ally with, and exploit these social norms to achieve legal goals more efficaciously. (3) In its analytic mode, this school often seeks to redeem microeconomic approaches to law from excessive abstraction,4 to draw on corrections to rigid rational choice theory supplied by experimental psychology, (5) to enrich rational choice theory with the deep strategic logic of game theory, (6) and, occasionally, in its focus on the phenomenon of "social meaning," to pay some fealty to cultural anthropology or the Humanities. (7)

      This article will largely address one important part of the norms school--its application to criminal law. The norms school has been at its most aggressive, in both explanatory (8) and programmatic ways, (9) in dealing with criminal law. This may be no surprise, since criminal law is the area of social regulation where norms of behavior are most invested with moral judgment and political contention, where the reference to "norms" most strongly suggests that those who do not comply with norms are "deviant." Indeed, in the last few decades of American politics, criminal law has been the most attractive and exploited medium by which lawmakers have purported to offer solutions to cultural disorder or antisocial behavior. (10) For another, criminal law has been a relatively open academic market for the norms school, since the explanatory and programmatic scholarship of economics, critical legal studies, and other fields have attended far more to private law and to other forms of public law than to criminal law. (11) In any event, the law-and-norms school has often turned to criminal law to support some of its basic tenets: that social actors are governed less by formal laws than by patterns of behavior which have accrued normative, if not obligatory force; that norms often govern in a manner indifferent to legal rules, sometimes helping or impeding the enforcement of rules; that norms are immanent with social meaning which lawmakers would do well to heed, and which they can usefully exploit; and that people are susceptible to the conforming force of charismatic individuals or majoritarian patterns of behavior.

      The law-and-norms school has faced heavy criticism for its premises and implementation. Much of that criticism has challenged the norms school for failing to meet the standards of rigor for social science. Other criticism has challenged the norms school for failing to deliver on its promise of a new kind of interpretive method, an adaptation of social science analysis that incorporates a kind of social anthropologist's feel for identifying, and tracing the changes in, cultural values. In this article, I examine those criticisms and conclude that on the whole the problems these critics have uncovered are especially evident in the field of criminal law.

      The new law-and-social norms school echoes, in ways both obvious and unacknowledged, parts of the enterprise of the old Legal Realism of the 1930's. (12) One strand of the Realist School, for example, oscillated somewhat nervously between, on the one hand a kind of cultural anthropology, by which both legal institutions and the social behavior which law sought to regulate were patterns of custom and habit, induced by both material and nonmaterial culture and both biological and social inheritance, and, on the other, a more ambitious scientism that sometimes led to formal elaboration and aspirations toward mathematical precision. (13) By contrast, modern law-and-norms scholars have smoothly, and sometimes too glibly, elided the conflicts among disciplinary methods.

      For one thing, instead of struggling in frustration to achieve scientific rigor, the criminal law norms scholarship has occasionally claimed an immunity from formal social science standards. For another, this school has developed an additional set of methods and principles as well--a kind of cultural studies interpretivism--that raises problems parallel to those on the social science side. Though lacking clear grounding in humanistic method, some norms-school scholars implicitly claim an almost vatic ability to discern the temper of the times and the values of political entities (ranging from so-called "communities" all the way up to the nation as a whole). The norms school thus runs the risk of wielding a kind of academic populism that can both authorize programmatic prescriptions and issue broad cultural and even political dicta.

      The law-and-norms school finds a deceptively useful level of generalization about social behavior to coordinate our understanding of individual and group conduct. But it does so with little distinct theory other than a few general concepts like conformity and esteem-seeking and a sense of fairness, and some borrowings from behavioral cognitive theory and game theory. As means to understand individual behavior, these concepts add little to conventional psychology but often claim explanatory power beyond the judiciously limited applications proffered by most behaviorists. As means to understand group behavior, these concepts are too disembodied to take account of religion, ethnicity, class, or even the more abstracted notions of social groups treated by sociology. And, I argue, in its loose eclecticism norms analysis is peculiarly incongruent with the realm of criminal law, because the criminals society most, and most tightly fears, exhibit both a pathological indifference to, and a compulsive inability to obey, the social norms that supposedly guide good behavior. As a result, in its quest for ways to engineer social behavior to avoid crime, the norms school may have little utility outside minor areas of crime committed by otherwise socially sensitive individuals. Though it purports to take on larger questions about social behavior, the norms school is gravely limited in its ability to usefully address serious matters of crime and criminal law, and it tends to disrespect the more substantial questions of the social costs and benefits of the conventional criminal punishments which are sure to remain the currency of our criminal justice system.

   2. THE UNCERTAIN DISCIPLINARY LOCATION OF SOCIAL NORMS

      I will first briefly treat the more general kind of social norm analysis, both to lay out the background for the criminal law work, but also to suggest the capacities, limitations, and risks of the general law-and-norms enterprise. The more self-consciously economics-oriented norms work has been sensibly cautious in claiming grand theoretical or practical implications. Instead, it makes some useful corrections or adjustments to rational choice theory, and respectfully suggests how other disciplines can usefully, if indirectly, enrich understanding of the interaction of law and norms. In fact, it is only when some legal academics who draw on behavioral economics and norms overreach to very large claims of moral theory or psychological interpretation that they lapse into some of the conclusory writing to which norms writing is susceptible.

      As new as the norms school is, its critics are already numerous, attacking it for false claims of originality, and lack of analytic rigor in its general pronouncements, (14) or for the unsoundness of its programmatic recommendations in specific legal areas. (15) Perhaps the gist of the criticism has been that the "norms" school has not clearly offered a new Realism at all, but rather a new and vague vocabulary that might at best appear to provide a new synthesis of, or compromise between, law and economics and the social constructivism once associated with critical legal studies and now with postmodernist approaches to law. Indeed, the more acerbic critics have attacked the norms school for (a) an unwarranted confidence in claiming to have discovered the rather obvious fact that social norms influence the behavior it seeks to regulate, and (b) insufficient attention to the traditions and disciplines of the social sciences that have long known about the relation of law and norms in complex ways that the new norms school does not appreciate. (16) One line of criticism for example, chastises the norms school for barely mentioning a half-century tradition of social psychology about norms. (17) Norms, this line of criticism suggests, are, ironically, both more deep-seated and more ephemeral than the law-and- norms writing acknowledge. In this view, the shock-force of random social or political, or economic crises will often overwhelm the effect of norms, leaving many of the law-and-norms claims either false or tautological. (18)

      I will conclude that in the area of criminal law, the school of social norms has prematurely claimed to identify a distinct and definable interpretive method or predictive apparatus. (19) It has encountered, and failed to meet, the challenge of refining rational choice and microeconomic analysis of law by coordinating causal analyses of social behavior and law with the interpretive understandings of law supplied by law-and-humanities scholarship. In its applications to criminal law, the law and norms scholarship has oscillated between claiming to refine rational choice theory while staying within the boundaries of social science, and, on the other hand, implicitly and often clumsily appropriating notions of social constructivism and literary...