“Making sense of norms vs laws”
I throw around the word “norm” a lot. It sounds a little pretentious. I know. However, I think it’s an important concept to understand for anyone interested in social science or politics. Most easily, a norm is a type of rule that governs appropriate behavior in some particular setting. Without really acknowledging it, we are aware of and being responsive to thousands of norms each day, and, in some cases, we may even be unconsciously reinforcing/policing these norms by punishing those who don’t follow them. I know that this may seem vague, so I’d like to flesh it out with an example.
A few weeks ago, I was standing in line at a takeout restaurant at 1 am. My friends and I had gone out and were getting fried chicken before heading back to the house. After standing in line for 10 minutes, some guy walked past the whole crowd and went to second in line. Everyone in the line, including myself, was pretty visibly angry at this person. But why? Cutting in line isn’t illegal. He isn’t really hurting anyone physically.
In this scenario, the whole crowd had all agreed to some norms about what’s okay to do in this situation which this person was violating. We all unconsciously agreed to stand in this line, and wait for our turns so that no one had to wait any longer or shorter for their turn than anyone else. Although that norm isn’t explicit and no one really verbalizes it — people could come to this in many different ways — the result was unanimous: here the right thing is to do is wait your turn. This sort of norm isn’t typical in many countries. Mostly western countries follow this rule of the queue.
Now in this situation, no one got violent. And though there was a police officer there, he didn’t do anything. After all, the guy didn’t do anything illegal. But the crowd starting yelling and the woman standing behind him lit him up. Before the person in front of him finished ordering, he was so redfaced from shouting back at the people that he just left the restaurant entirely. The crowd even kind of cheered. The norm was enforced. Justice was sort of served.
It sounds sort of absurd and dumb and petty, but most people would react the same way if they were in that situation — drunk, tired, hungry, at the end of a long night. This highlights a few things that are very important about norms. (1) They are implicity shared by people in a community, and they are passed to people through enculturation. When refugees move to the UK, for instance, many refugee agencies will explicitly teach them about this norm and how it is important to follow when being part of the UK. Those immigrants might not understand it at first, after all they may have very different norms about lines and ordering, but they may learn it and internalize it to the point where they also enforce it out of some sense of justice. (2) Norms are often extralegal and mainly policed by the people within the community through things like gossip, status, honor, reputation, and just straightforward verbal punishment. In my situation, verbal abuse from the crowd was effective in upholding this norm, but, along with that, things like reputation may have also been at play. For instance, this guy may have worried about being spotted by these people in his day-to-day life outside of this crowd. Would the reputation of being a line-cutter, a norm violator, follow him so that he continues to receive punishments in the form of nasty looks and insults? Or worse, would his friends see it or hear about it and would he lose status from being known as someone who cuts lines?
Now, of course, line cutting is not that big of a deal and many of these repercussions wouldn’t happen, but think about more serious extralegal norm violations that may be extralegal. Hate speech is a great example. In the US hate speech is not punishable under the law. But within modern political culture, we have very strong norms against any form of hate speech. And these norms are well policed by most people. You see this all the time, someone will be called out for some past tweet where they said something racist or misogynistic. They violated community norms of decency andjustice, and now they are (sometimes rightly sometimes wrongly) punished by people in the community. People gossip about them. People figure out ways to degrade their honor or status or reputation in the field. So while hate speech itself is not illegal, the community policing of hate speech norms makes it so that people have very strong social incentives to follow the norms of the community.
Now that we have sort of fleshed out some key parts of a norm, I’d like to bring up laws. None of this is close to complete, people spend their lives on making and refining these definitions. I won’t pretend like this is perfect, but it’s funto try and probe our intuitions about laws and norms in order to get a better hold on something we unconsciously understand and employ every moment of our life.
Just like with norms, I believe that many of us haven’t really thought much about what a law really is. So lets start at the most basic. Just like a norm. A law is some rule for action in certain situations. Clear enough. I think you diverge from norms when you start thinking about how a law is created, learned, and enforced.
Unlike a norm, which is arguably created and revised through the status quo and growth of traditions within some community, a law is put into place by the state. There are of course many ways in which the state can institute a law, but my necessary and sufficient conditions can only be limited to it (1) being from the state and (2) it being specifically codified. Just like we said before, norms are implicitly understood and used. No one says specifically that, for example, it’s not okay to stand within 1 foot of someone else, or that you have to wait your turn when ordering in a line, or that it’s inappropriate to cuss in situation x and y and z but it is okay to cuss in situation t, etc. However, the law specifically says what it is, how it will be enforced, and what consequences people can expect if they break that law.
Learning norms is tricky. Humans are pretty damn good at learning them and internalizing and employing them. And if you take a really broad definition of what a norm is — to the point where you think there are norms to explain actual bodily action and language use (more on that in a later article) — norms could be the source of learning nearly everything. But here I am focusing on norms of social action within some community, and there are many well documented ways in which someone can fail to learn certain norms or be completely unable to follow the norms. The best examples of that are folks with ASD (difficulty learning certain norms, basic deficits in certain mechanisms that allow norm enforcement and adherence to be pleasurable), people with frontal lobe damage and sociopaths (ability to identify and explicitly recognize social and moral norms but an inability to be rewarded by norm adherence and sometimes an inability to control impulses to break said norms), and people with trauma during critical phases of socialization (feral kids studies point at how humans can fail to learn the tools to identify, learn, and use social norms). There’s a lot here, but it can be mostly broken down to “if you’re part of some community then you learn norms through interactions within the community that point to what is appropriate behavior in what particular situations.” This contrasts well with laws which are almost never explicitly taught to people. I think a lot of people assume that certain important norms are just going to be part of the law (like not killing, not stealing, etc.), but I can guarantee you that most people would be surprised by how many things are not actually written into law (like hate speech) and how many absurd things are written into law (like what drugs someone is allowed to ingest). Because the community and public is not the source of laws, laws are not well understood by most people, and don’t necessarily always reflect the values and needs within a community.
To me, the most important difference between a norm and a law is enforcement or policing. Take our previous example. The community enforced the norm through public shaming, verbal abuse, and possible threats to the honor, status, and reputation of that person. So norms can be enforced through the public in all of these different ways that are all mostly aimed at impacting that person’s status and/or playing to innate human tendencies that are built for norm adherence (namely praise being rewarding, and insults being unrewarding). There are a lot of tricky aspects to this. Pretend that the aforementioned line cutting situation played out, but instead of some random guy cutting in line, Barack Obama cuts in line. How would the scenario change? Well, no one would care. People would swoon. The norm wouldn’t be enforced. In other words, the status and power of the person who violates the norm greatly impacts how the norm is enforced and whether it is enforced at all.
Laws are, of course, policed very differently. They are policed, well, through police. Some person within a community is given a state sanctioned monopoly on violence that they are then allowed to use to enforce the law. This all comes about in different ways, and there are always a lot of variations in how the police work within the law. Most people intuit that laws are supposed to be less voluntary and they are supposed to be applied equally to all people. In its purest form, I think that’d probably be right. But policing isn’t perfect. Some laws are never enforced, some are over enforced and weaponized against whoever the police don’t like (look at how misdemeanor disorderly conduct can be used to give a record to anyone a police doesn’t like without any explanation). Law policing follows norm policing in some unexpected trends. On one hand, norms can be enforced by anyone in a community while laws are supposed to only be enforced by designated police, but both norms and laws are unevenly enforced and their enforcement is often uneven depending on the power of the individual who is violating the norm/law. This is shown through the over enforcement of drug laws on POC when compared to white people who use drugs at the same rate, but are busted at a much lower rate.
I will edit this over the next few weeks. But for now, I think this sets some base ideas for future posts that I will have on “theories of policing,” “the limits of the law,” “the limits of norms,” “guidelines for what ought to be law,” “innate requirements for norm responsiveness,” “changing norms through changing culture,” and more.