Document Type

Article

Publication Date

Winter 2002

Keywords

Law and Social Norms, Empirical legal studies, Law and economics, Behavioral law and economics, Rational choice theory, Richard McAdams, Jon Elster, Eric Posner, Economic models of social norms

Disciplines

Applied Statistics | Behavioral Economics | Law and Economics | Legal Theory

Abstract

The question of how societies secure cooperation and order in the absence of state enforced sanctions has long vexed law and economics scholars. Recently the concept of social norms--informally enforced rules of behavior--has occupied the attention of a large number of these theorists, who are concerned with understanding why economically rational actors would bother to follow rules whose costs seem to outweigh their benefits. Because of the prestige (or at least trendiness) of law and economics, it seems that now everyone in the legal academy is talking about social norms. This burgeoning scholarship is closely related to a wider concern in law and economics, namely the attempt to develop a "behavioral" law and economics that integrates into economic models some of the findings from empirical social science research.

Behavioral analysis attempts to account for standard objections often raised to law and economics, such as the imperfect rationality of fallible human beings and the importance of considerations that cannot be reduced to self-interest--for example loyalty, solidarity, community, altruism, and other moral values. Although behavioral law and economics and the economic analysis of social norms address the problem from different directions, they are both concerned with the same jurisprudential issue, namely how a theory of human behavior ought to be developed that is relevant to the design of legal institutions.

This Article is an attempt to evaluate the methodological claims of theorists of social norms. For this reason, its aim is primarily metatheoretical. It uses the tools of conceptual analysis--that is, moral and political philosophy and the philosophy of the natural and social sciences--to arbitrate between a long-running dispute between two warring camps, rational choice scholars and their critics from the law and society movement and other disciplines.

Comments

This article pre-dates the author’s tenure at Cornell Law School

Publication Citation

Published in: Indiana Law Journal, vol. 77, no. 1 (Winter 2002).

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