Regulation, Social Norming and Tocqueville’s ‘Majority’

There is a well-known model of behavior modification, a taxonomy of sorts of regulatory mechanisms, due to Lawrence Lessig, which lists four modalities of regulation: the law, the market, social norms and architecture. The law provides punitive sanctions, actively restrains by making visible its power, and points in the desired direction; the market provides economic penalties and incentives, and thus promises to immiserate or enrich; architected spaces can, with varying degrees of force, prevent some actions from being taken; and social norms introduce the disincentive of public obloquy.

It is perhaps idle to wonder which one of these is the most effective mechanism of all, though each is bound to have particular domains in which it finds notable traction. The modalities of the law and of market forces are perhaps most familiar to us in contemporary times largely because of their prominence in theoretical and political discourse. That said, from some perspectives, social norming might be seen as the most influential one of all.

For one, norms are plausibly understood as significantly informing the law’s impingement on behavior. This last point is a familiar one: it forms the dual to the view that law has hortatory, expressive impact.  It suggests the law is a collection of particular social norms backed up by sanctions more elaborate than those made possible by the following of convention. This power of norming is, of course, related to the power of the social and political majority, an influence upon human action that has been noted often in theory and political history. For instance, in Alexis De Tocqueville‘s Democracy in America, Part One, he notes:

The majority has an entire control over the law when it is made and when it is executed;….The authority of a king is purely physical, and it controls the actions of the subject without subduing his private will; but the majority possesses a power which is physical and moral at the same time; it acts upon the will as well as upon the actions of men, and it represses not only all contest, but all controversy….the majority raises very formidable barriers to the liberty of opinion.

Tocqueville’s primary concern here is with political freedom: to hold diverse political opinions, to express them, and to act on them. And the majority he is concerned with is a straightforwardly numerical one. But the opinions and the actions need not be expressly political, they may be concerned with rather more ‘mundane’,  personal sectors of lives: diet, our choice of vice, sexual preferences and so on. Majority norms can significantly attenuate and influence these; they can push and prod us along trajectories that appear ever more desirable precisely because they seem to enjoy such resonance and sympathy with a class already dimly understood as influential. Conformity to tradition is the result of the temporal extension of such momentary pressures, and ideology may perhaps be understood (in part) as the systematic, persistent, theoretical codification of such informal influence.

All too often, the norm can be mightier than the sword.

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