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Law And Social Norms / Edition 1

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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.

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Editorial Reviews

New Republic

Eric Posner wishes to improve the economic analysis of law by incorporating into it a more rigorous understanding of the impact on behavior of the social meaning of action. In his lucidly written and sharply argued book on the relation between law and 'non-legal mechanisms of cooperation,' Posner contends that many conceptual confusions and embarrassing puzzles that have been generated by the economic analysis of law can be cleared up, and the research paradigm as a whole can be advanced, by taking account of the pervasive and powerful role of social norms."
— Peter Berkowitz

Washington Post

Posner, in seeking to establish the central importance of what he calls 'social norms,' gives the example of Christmas fruit cake: People bake fruit cakes, exchange them and sometimes try to eat them. No law requires this. And few enjoy it (as Posner stipulates). Yet people still manufacture them; such, Posner concludes, is the power of social norms which function as signals that players have won an advantage in the competitive 'game' of life...[Posner's] book concludes that social norms have evolved as arbitrarily as peacock's tails have, and with much the same purpose—to signal their holders' desirability as partners for strategic cooperation. Failure to conform to social norms reveals unreliability, even though—or, more precisely, because—such norms are fundamentally arbitrary and costly to maintain."
— M.N.S. Sellers

New Republic - Peter Berkowitz
Eric Posner wishes to improve the economic analysis of law by incorporating into it a more rigorous understanding of the impact on behavior of the social meaning of action. In his lucidly written and sharply argued book on the relation between law and 'non-legal mechanisms of cooperation,' Posner contends that many conceptual confusions and embarrassing puzzles that have been generated by the economic analysis of law can be cleared up, and the research paradigm as a whole can be advanced, by taking account of the pervasive and powerful role of social norms."
Washington Post - M.N.S. Sellers
Posner, in seeking to establish the central importance of what he calls 'social norms,' gives the example of Christmas fruit cake: People bake fruit cakes, exchange them and sometimes try to eat them. No law requires this. And few enjoy it (as Posner stipulates). Yet people still manufacture them; such, Posner concludes, is the power of social norms which function as signals that players have won an advantage in the competitive 'game' of life...[Posner's] book concludes that social norms have evolved as arbitrarily as peacock's tails have, and with much the same purpose--to signal their holders' desirability as partners for strategic cooperation. Failure to conform to social norms reveals unreliability, even though--or, more precisely, because--such norms are fundamentally arbitrary and costly to maintain."
Ian Ayers
Eric Posner has written a bold and provocative thesis about one of the most important and fastest developing areas of legal scholarship. He has a powerful structure that states his thesis elegantly, acknowledges alternative views, applies his theories to a host of legal fields, and collects normative legal implications. Law and Social Norms should become one of the standard references to norm theory.
Robert Cooter
Eric Posner discusses the leading issues on the agenda for research on law and social norms, providing detail and references that many scholars will value...Law and Social Norms aims at insights into a broad array of moral behavior based upon an economic vision of man, and it is a valuable source for hypotheses and insights about many normative facts and institutions.
Richard H. McAdams
With its innovative use of signaling models, Law and Social Norms makes a significant contribution to economic and legal theory. Using a parsimonious account of human behavior, Eric Posner pushes the domain of economics to include subjects recently considered only by sociologists, anthropologists, and psychologists. At a time when economics is struggling over how best to explain group solidarity, conformity, and social norms, this book promises to be influential in determining the path economic theorists take.
Library Journal
In this excellent book, Posner (law, Univ. of Chicago) raises such fundamental questions as why people conform to social norms and why they generally refrain from antisocial behavior even when the law is absent. He then proposes a methodology for the systematic analysis of social norms. Posner uses models of nonlegal collective action to show the possibilities underlying cooperative behavior. He demonstrates how varied dimensions of nonformal, i.e., nongovernmental, strategies can resolve many types of social conflicts. Posner considers numerous theoretical and practical problems in the current study of relationships between social norms and law, offering new avenues toward understanding these relationships. His book uses a game-theory approach to revise lawyers' and scholars' views about the relationships between social norms and the law. This interesting and novel analysis is highly recommended for academic libraries.--Steven Puro, St. Louis Univ. Copyright 2000 Cahners Business Information.\
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.
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Product Details

  • ISBN-13: 9780674008144
  • Publisher: Harvard University Press
  • Publication date: 3/8/2002
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 272
  • Sales rank: 1,396,775
  • Product dimensions: 0.61 (w) x 6.00 (h) x 9.00 (d)

Meet the Author

Eric A. Posner is Kirkland and Ellis Professor of Law at the University of Chicago Law School.
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Table of Contents

1. Introduction: Law and Collective Action

I. Models of Nonlegal Collective Action

2. A Model of Cooperation and the Production of Social Norms

3. Extensions, Objections, and Alternative Theories

II. Legal Applications

4. Gifts and Gratuitous Promises

5. Family Law and Social Norms

6. Status, Stigma, and the Criminal Law

7. Voting, Political Participation, and Symbolic Behavior

8. Racial Discrimination and Nationalism

9. Contract Law and Commercial Behavior

III. Normative Implications

10. Efficiency and Distributive Justice

11. Incommensurability, Commodification, and Money

12. Autonomy, Privacy, and Community

Notes

References

Acknowledgments

Index

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