Henry Farrell has a very thoughtful post on the role social norms play in the enforceability of laws, focusing on the an argument that social norms about public smoking were extremely fragile and therefore subject to quick reversal by legal intervention:
I haven’t seen any research on this (if someone knows of any, let me know in comments), but my best guess in the absence of good evidence would be that the success of the ban reflected instabilities in previously existing informal norms about where people could or could not smoke. Laws that work against prevailing social norms face an uphill battle in implementation – unless people come to a general belief that non-compliers are highly likely to be sanctioned by the public authorities, they are likely to carry on doing what they always do. ... Laws that broadly fit with prevailing informal norms, will, obviously, have few implementation problems.
But what we may have seen (if my guess is right) with smoking bans is an unusual case in which prevailing norms (that ... people can smoke in pubs to their hearts’ content, and that others will just have to put up with it) were much more fragile than they appeared to be, and that the change in law made it easier for those disadvantaged by the prevailing norms to challenge smokers and to shame them into stopping smoking in certain places, hence creating a new set of robust norms. I’ve no evidence beyond anecdote and personal observations to support this claim – but I do think that it is hard to imagine that norm fragility isn’t involved somewhere along the causal chain, given that state enforcement capacities are obviously insufficient to push something like this through.
Some thoughts: (1) As far as I'm concerned, the seminal work on the relatoinship between law and norms remains Robert Ellickson's Order without Law: How Neighbors Settle Disputes
(2) Norms vary radically in their strength. When fragile norms are subjected to a strong exogneous shock, you can get a cascade effect in which the norm changes very quickly. The seminal piece in the legal literature on this issue is Cass R. Sunstein, Social Norms and Social Roles, 96 Colum. L. Rev. 903 (1996). Sunstein argues that:
Existing social conditions are often more fragile than might be supposed, because they depend on social norms to which -- and this is the key point -- people may not have much allegiance. What I will call norm entrepreneurs -- people interested in changing social norms -- can exploit this fact. If successful, they produce what I will call norm bandwagons and norm cascades. Norm bandwagons occur when small shifts lead to large ones, as people join the “bandwagon”; norm cascades occur when there are rapid shifts in norms.
Farrell's description of the change in smoking behavior is consistent with such a cascade.
(3) Sunstein further argues that legal change can produce just such a cascade:
Many laws have an expressive function. They “make a statement” about how much, and how, a good or bad should be valued. They are an effort to constitute and to affect social meanings, social norms, and social roles. Most simply, they are designed to change existing norms and to influence behavior in that fashion.
Of course human goods are valued in different ways; people have a wide variety of evaluative stances toward relationships and goods. Laws with expressive functions are often designed to promote a certain way of valuing certain goods. Many such laws are intended to say that specified goods should be valued in a way that deters thinking of them as mere objects for use. Laws forbidding the purchase and sale of certain goods can be so understood.
It may well be the case that smoking bans are an example of a successful effort to use law in this expressive mode. Richard H. McAdams's article, A Focal Point Theory of Expressive Law, 86 Va. L. Rev. 1649 (2000), for example, offers an extensive game theory analysis of smoking bans, which argues they can have powerful social effects. In an article in the same symposium (at 1603), Robert Scott explained that pooper-scooper laws and smoking bans in airports are "the favorite examples used by norms scholars to describe the expressive and internalization effects of law." He continued:
Pooper-scooper laws, even without effective enforcement by the state, change the incentives of individuals facing a preference conflict between a taste for clean yards and a taste for allowing “dogs to be dogs.” No smoking ordinances in airports not only solve coordination problems but resolve a cooperation problem as well: the preferences of those who prefer clean air over those who prefer to smoke. The law in either case informs those with the preference that favors clean air or clean yards that general local sentiment supports their preference. This raises the benefits and lowers the costs of shaming violators. Similarly, the violator is informed of the prospect of informal sanctions and of the character of any shaming interaction, and thus the costs of the forbidden activity are increased.
(4) I remain skeptical that norm entrepreneurship works very well when norms are less fragile. I explained in my article Stephen M. Bainbridge, Mandatory Disclosure: A Behavioral Analysis , 68 U. Cin. L. Rev . 1023 (2000), that:
Some scholars contend that law can create or destroy norms. By raising the cost of compliance with a social norm, law can destroy the norm, albeit without changing individual value systems or utility functions. Alternatively, however, by expressing social values, law may be able to destroy (or create) a norm by changing individuals' preferences. ...
There are a number of objections to this thesis, however. First, query whether legal reform would precede cultural change, especially in the teeth of rent-seeking by special interest groups. The objection is especially pertinent in [those contexts in which] the interest group whose norms are to be reshaped ... wield significant political power with respect to changes that affect their interests.
Second, the thesis reflects an optimism about the ability of law to effect social change that may not be warranted. Much (probably most) social intercourse is carried on with little regard to legal rules. Here we must take into account Robert Ellickson's observation that “large segments of social life are located and shaped beyond the reach of law.” Ellickson famously studied the way in which residents of Shasta County, California resolved disputes over trespassing cattle. He found that laypersons had only rudimentary knowledge of trespass law and that what little they did know was partly erroneous. Strikingly, in some respects legal specialists (lawyers and insurance adjusters) knew even less trespass law than did laypersons. To be sure, the use of law in a securities disclosure regime driven by public enforcement differs from the use of law in private dispute resolution, but Ellickson's finding nonetheless casts doubt on the ability of law to reshape cultural norms. At the very least, just as one proverbially must hit the mule over the head to get its attention, law may have to use a heavy hand in order to change behavior determined by social norms.
(5) Like Megan McArdle, I still think smoking bans are bad policy.
Update: Jonathan Adler discusses the Farrell post in connection with his own analysis of recent legislation authorizing the FDA to regulate tobacco. Of the new bill, Adler opines:
For reasons I explain in this NRO article, I am not convinced the legislation does much for public health, let alone the public good. Among other things, the legislation could frustrate the development and marketing of reduced-risk tobacco products, impose troubling limitations on commercial speech, and cement Philip Morris' position as the tobacco industry's dominant player. Is it any wonder Philip Morris was a big backer of the bill?
As for the social norms issue, Adler poses and then discusses the interesting question of "What would happen were such bans to be repealed? "
Go read the whole thing.
