How Law Influences Behavior: Interest, Obligation, Commitment
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Law often claims a normative preeminence; whatever obligations an individual faces must, in case of conflict, yield to those imposed by law. Occasionally law makes a more encompassing claim of normative exclusivity: an individual faces only those obligations imposed by law. In a monolithic society, law might succeed in realizing these imperial claims. Society, though, is rarely, if ever, monolithic. Individuals within a society often have multiple normative commitments that arise from their membership either in smaller communities within the larger society as a whole or in communities that extend beyond the larger society. A resident of the United States, for example, though subject to its laws, has other, occasionally conflicting, commitments and loyalties: to her religion, to her workplace or her union, to her family and to her friends. This multiplicity of normative systems poses several questions for the study of law and society. A central question of the philosophy of law, for instance, concerns the relation between legal and moral obligation: Must a legal obligation necessarily be moral as well? Does law define “conventional morality?” Or does “conventional morality” determine which behaviors the law will condemn? Analogous questions arise with respect to every other source of obligation; what, for instance, is the relation between legal obligation and the informal obligations that arise among neighbors? Does the law simply embody the “customary” practices of individuals? Or does it form these practices? A second set of questions concerns the role that these various normative systems play in the determination of individual action. This question has both theoretical and practical import as it lies at the center of much debate about civil disobedience: When the law requires what one's god or one's conscience prohibits, how does one act? The question, however, arises in more mundane contexts as well because the law's requirements may conflict not only with one's obligations but also with one's interest. Studies of criminality must untangle the effects that norms within particular communities play in the determination of legitimate behavior from the economic incentives that individuals have to engage in that behavior. Similarly, the study of settlements in the “shadow of the law” must consider both the role of self-interest and of notions of equitable treatment and fair play. In the law and society literature, these questions concerning the interaction of multiple systems of norms recur in various guises. The literature on legal pluralism, for instance, began with the observation that conquest resulted not in the replacement of indigenous law with imperial law but in a complex interaction between them. The literature (surveyed in Griffiths 1986 and Merry 1988) then expanded to include the study of the relation among legal and nonlegal normative systems. While this literature has provided much insight into the role of law in society, it has not paid sufficient attention to how an individual acts when she is subject (or committed) to multiple normative systems. This oversight derives in part from a failure adequately to distinguish between the expressed content of norms and the institutional arrangements that create, interpret, and enforce them. The literature on private governance (surveyed in Macauley 1986) has also broached these issues either through the explicit comparison of legal and alternative methods of dispute resolution or through extended studies of nonlegal but formal systems of governance. This literature has tended to see nonlegal normative systems as placing a limit on the extent of social control that the law may exert. This perspective ignores other ways that systems of private governance might influence the content of the legal order. In this essay, I outline a framework for understanding the relation among normative systems and how an individual, faced with the demands of multiple normative systems, might act. Section 2 begins with a simple distinction between the “textual” and “institutional” aspects of any normative system and concludes with a crude classification of types of normative systems. Section 3 sketches some different ways in which law may accommodate (or fail to accommodate) other normative systems. Section 4, the core of the essay, distinguishes preference theories of action from obligation theories of action; these two classes of theories resolve the conflicts among normative systems and between normative systems and individual interest differently. Section 5 briefly considers the possibility that self-interest might explain the content of a normative order. Section 6 extends the argument by suggesting how the prior analysis applies to the study of actors within a normative regime. Section 7 discusses some implications of the multiplicity of normative systems for the analysis of power. Section 8 addresses the implications of normative pluralism for the evaluation of legal institutions. Section 9 offers some concluding remarks.
Source Publication
Justice and Power in Sociolegal Studies
Source Editors/Authors
Bryant G. Garth, Austin Sarat
Publication Date
1998
Recommended Citation
Kornhauser, Lewis A., "How Law Influences Behavior: Interest, Obligation, Commitment" (1998). Faculty Chapters. 1041.
https://gretchen.law.nyu.edu/fac-chapt/1041
