How Change Happens

by Cass R Sunstein

  In the 1980s, the enormously lengthy and heated debate over whether flag burning is protected by the Constitution was permeated by expressive concerns. By seeking to outlaw flag burning, people wanted to make a statement about patriotism and love of country. If we ask whether the debate is about how best to deter flag burning, we will find the debate unintelligible. In the 1980s, the number of people who burned the American flag was not exactly high, and it is reasonable to suppose that a constitutional amendment making it possible to criminalize flag burning would have among its principal consequences a dramatic increase in annual acts of flag burning. In fact, adopting a constitutional amendment may be the best possible way to promote the incidence of flag burning: people might burn the flag to show that they abhor the amendment!

  In these circumstances, it seems clear that those who supported the amendment were motivated not so much by consequences as by expressive concerns. They wanted to make a statement about the venality of the act of flag burning—perhaps to affect social norms, perhaps because they thought that making the statement is intrinsically good. For a more recent example, consider President Donald Trump’s efforts to encourage the National Football League to punish its players for refusing to kneel during the national anthem. To be sure, Trump did not argue that the refusal to kneel should be a crime. But he did want the players to be punished. The debate over his efforts was intensely expressive. Did the refusal to kneel show a disrespect for one’s country? Or was it an acceptable way of protesting injustice?

  In many nations, the debate over regulating hate speech is similar. It is above all about the social meaning of such regulation. Do bans on hate speech “mean” that victims of hate speech require special paternalistic protections, are weak and thin-skinned, and are unable to take care of themselves? Or do they “mean” that bigotry is utterly unacceptable in a liberal society? Debates of this kind could not plausibly be focused on consequences, for the stakes are usually low (we are not dealing with action, after all) and thus cannot justify the amount of time and energy devoted to the issue. In this way, debates over flag burning and debates over hate speech have a great deal in common: they are expressive in character.

  Consider, too, a subject far afield from constitutional law but bearing directly on the role of law in a democracy: risk regulation. In environmental protection, public debate often is focused on the perceived social meaning of law. Thus the Endangered Species Act has a special salience as a symbol of a certain conception of the relationship between human beings and their environment. Efforts to “weaken” the Endangered Species Act may or may not have large consequences for endangered species; but people who oppose such efforts are insisting on certain values. In the same way, mandatory recycling (as opposed to curbside charges, which seem far better from an economic standpoint) may well receive public support on expressive grounds. In the legal profession, the same may also be true of mandatory pro bono work (as opposed to compulsory donations from lawyers who refuse to do such work).

  In this chapter, I explore the expressive function of law—the function of law in “making statements” as opposed to controlling behavior directly. Statements can be seen as nudges, at least if they are unaccompanied by sanctions (see part II). I focus on the particular issue of how legal “statements” might be designed to change social norms. I catalog a range of possible (and in my view legitimate) efforts to alter norms through legal expressions about appropriate evaluative attitudes. I also argue that the expressive function of law makes most sense in connection with efforts to change norms and that if legal statements produce bad consequences, they should not be enacted even if they seem reasonable or noble.

  Making Statements

  We might understand the expressive function of law in two different ways. First, and most straightforwardly, the law’s “statement” about, for example, the risks of distracted driving may be designed to affect social norms and in that way ultimately to affect both judgments and behavior. The goal is to reduce distracted driving and thus to save lives. On this view, an expressive approach to law depends on an assessment of social consequences; certain expressions are favored because they will (ultimately) have good consequences.

  Here there is a prediction about the facts: an appropriately framed law may influence social norms and push them in the right direction. If the law mandates recycling, perhaps it will affect social norms about the environment in a desirable way. Or people might think that if the law treats something—say, sexual capacities—as a commodity for sale and exchange, social norms may be affected in a troublesome way. People might start to see such capacities in a way that will demean and disparage them; the legitimation of prostitution might spill over into ordinary relationships (in a destructive way).

  Sometimes the claim that the law affects norms is plausible. Prevailing norms, like preferences and beliefs, are usually not a presocial given but a product of a complex set of social forces, sometimes including law. Laws designed to change norms will be my focus here. But sometimes people support a law not because of its effects on norms but because they believe that it is intrinsically valuable for the relevant “statement” to be made. And sometimes law will have little or no effect on social norms.

  Thus a second understanding of the expressive function of law does not concern itself with effects on norms at all. Instead, its grounding is connected with the individual interest in integrity. In a brief but suggestive discussion, Bernard Williams notes that people often refuse to perform offensive or objectionable actions even though their refusal will result in worse consequences.3 Williams argues that our actions are determined not only by consequences but by judgments related to personal integrity, commitment, the narrative continuity of a life, and the individual and social meaning of personal conduct. The expressive dimension of action can be an important reason for action. Williams offers cases that might be understood in these terms. Someone might refuse to kill an innocent person at the request of a terrorist, even if the consequence of the refusal is that many more people will be killed. Or a pacifist might refuse to take a job in a munitions factory, even if the refusal has no effect on the factory itself.

  People’s responses to these cases are not adequately captured in terms that ignore expressive considerations—and Williams thinks that people’s responses are right. To be sure, it is possible that the refusal to kill an innocent person is consequentially justified on balance, for people who refuse to commit bad acts may cultivate attitudes that lead to value-maximizing behavior. But this is a complex matter, and it is not Williams’ point, nor is it the view of those who defend law for expressive reasons.

  In my view, Williams’s argument is not convincing; he is using a moral heuristic for what counts, which is welfare (see chapters 14 and 15 for details). My point here is only that human behavior is sometimes a function of expressive considerations. We might agree on this point even if we also believe that consequences count and that people should not be fanatical.

  There is an analog at the social and legal level. A society might identify the norms to which it is committed and insist on those norms via law, even if the consequences of the insistence are obscure or unknown. A society might insist on a constitutional right against racial discrimination, or a civil rights law, for expressive reasons even if it is unsure to what extent the right or the law will actually help members of minority groups. A society might endorse or reject capital punishment because it wants to express a certain understanding of the appropriate course of action when one person takes the life of another. A society might protect animal welfare for the same reason.

  The point bears on the cultural role of law, adjudication, and even Supreme Court decisions. The empirical effects of those decisions are highly disputed. If the Supreme Court holds that that segregation is unlawful, that certain restrictions on hate speech violate the First Amendment, or that students cannot be asked to pray in school, the real-world consequences may be smaller than is conventionally thought. But the clo
se attention American society pays to the court’s pronouncements is connected with the expressive or symbolic character of those pronouncements. When the court makes a decision, it is often taken to be speaking on behalf of the nation’s basic principles and commitments. The idea that the court’s decisions have an expressive function captures what is often at stake.

  I do not claim that the expressive effects of law, thus understood, are decisive or that they cannot be countered by a demonstration of more conventional bad consequences. In fact, I will argue otherwise and thus try to vindicate Simon’s remark in the epigraph to this book. Recall his words: “Sometimes we just want to scream loudly at injustice, or to stand up and be counted. These are noble motives, but any serious revolutionist must often deprive himself of the pleasures of self-expression. He must judge his actions by their ultimate effects on institutions.”4 My principal aim is to defend laws that attempt to alter norms, rather than laws that merely “speak.” It cannot be doubted, however, that the expressive function is a large part of legal debate. Without understanding the expressive function of law, we will have a hard time getting an adequate handle on public views on such issues as civil rights, free speech, welfare rights, prostitution, the environment, immigration, endangered species, capital punishment, and abortion.

  Collective Action Problems

  Many social norms solve collective action problems.5 Some of these problems involve coordination; others involve prisoner’s dilemmas. Norms solve such problems by imposing social sanctions on defectors. When defection violates norms, defectors might well feel guilt or shame, important motivational forces. The community may enforce its norms through informal punishment, the most extreme form of which is ostracism. But the most effective use of norms happens before an act is even committed. The expectation of guilt or shame—a kind of social “tax,” sometimes a very high one—is usually enough to produce compliance.

  Thus, for example, if there is a norm in favor of cooperation, people may be able to interact with one another in a way that is in their mutual interest. Professors write tenure letters and engage in a wide range of tedious administrative tasks that they could refuse to do at little cost (putting to one side guilt or shame—the emotional price of violating institutional norms). Or suppose that a community is pervaded by a strong norm against littering. If the norm is truly pervasive, a problem of environmental degradation can be solved without any need for legal intervention. The norm can do what the law would do at much greater cost. The norms associated with courtesy and considerateness are an especially important source of successful interaction among strangers and friends, and within families.6

  Sometimes, however, good norms do not exist, and bad ones exist in their stead—where we understand “good” or “bad” by reference to the functions of norms in solving collective action problems. Imagine, for example, that there is no norm in favor of refusing to litter or even that there is a norm in favor of littering. In the face of such norms, the social meaning of littering may be independence and fearlessness, and the social meaning of cleaning up or failing to litter may be fastidiousness or even cowardice or neurosis. In such a situation, a society would, under imaginable assumptions, do well to reconsider and reconstruct its norms. It may be able to do so through voluntary efforts.

  We have seen that norm entrepreneurs in the private sphere attempt to change norms by identifying their bad consequences and trying to shift the bases of guilt, shame, and pride. Many norm entrepreneurs are alert to the existence of collective action problems. In the environmental setting, public-interest groups often carry out this role by pressing private conduct in environmentally desirable directions, sometimes by providing new grounds for both pride (a kind of informal social subsidy) and guilt or shame (a kind of informal social tax).

  But sometimes these private efforts fail. When this is so, the law might be enlisted as a corrective. In fact, the least controversial use of the expressive function of law operates in this way, as an attempted solution to some kind of collective action problem. Here the goal is to reconstruct existing norms and to change the social meaning of action through a legal expression or statement about appropriate behavior. Insofar as regulatory law is concerned with collective action problems, this is a standard idea—especially in the environmental context, but also in the settings of automobile safety, occupational safety and health, and many other problems. What is perhaps less standard is to see the law as an effort to produce adequate social norms. The law might either do the work of such norms or instead be designed to work directly against existing norms and to push them in new directions. The latter idea is grounded in the view that law will have moral weight and thus convince people that existing norms are bad and deserve to be replaced by new ones.

  Sometimes legal mandates take the place of good norms by requiring certain forms of behavior through statutory requirements accompanied by significant enforcement activity. Environmental law, for example, imposes legal mandates to control industrial pollution; it adds a large commitment of enforcement resources.

  But there is a subtler and more interesting class of cases of special importance for understanding the expressive function of law. These cases arise when the relevant law announces or signals a change in social norms unaccompanied by much in the way of enforcement activity. Consider, for example, laws that forbid smoking (in public places), laws that forbid littering, and laws that require people to clean up after their dogs. In many localities such laws are rarely enforced through criminal law, but they have an important effect in signaling appropriate behavior and in inculcating the expectation of social opprobrium and hence guilt or shame in those who deviate from the announced norm.

  With or without enforcement activity, such laws can help reconstruct norms and the social meaning of action. Someone who fails to clean up after his dog may then be showing disrespect or even contempt for others. Many, most, or all people may see things this way, and large changes in behavior can result. Eventually there can be norm cascades as reputational incentives shift behavior in new directions. It should be unsurprising to find that, in many places, people clean up after their dogs even though doing so is not especially pleasant and even though the laws are rarely enforced.

  When legally induced shifts in norms help solve collective action problems, there should be no objection in principle. Here, then, is the least controversial case for the expressive function of law.

  Danger

  Often the expressive function of law is brought to bear on dangerous behavior, including behavior that is dangerous only or principally to one’s self. Of course, all behavior creates risks: driving a car, walking on city streets, volunteering for military service. When government tries to change norms that “subsidize” risk-taking behavior, it must do so because of a judgment that the change will promote overall welfare. This judgment might be rooted in an understanding that the intrinsic utility of the act is relatively low and that reputational incentives are the real source of the behavior. We are dealing, then, with cases in which risk-taking behavior persists because of social norms.

  There are numerous examples. Elijah Anderson’s vivid sociological analysis of life in an African American ghetto shows how social norms can create a variety of risks.7 Powerful norms motivate people to use and sell drugs; powerful norms motivate teenagers to engage in sexual activity that may result in pregnancy. Anderson shows that with respect to drugs, pregnancy, and the use of firearms, behavior is driven in large part by reputational effects. For much risk-taking behavior, especially among young people, social norms are the crucial factor. Consider, for example, the existence of powerful norms governing cigarette smoking, alcohol use, the consumption of unlawful drugs, diet and exercise, texting while driving, and carrying and using firearms. It is easy to imagine that a decision to smoke a cigarette or not to buckle a seatbelt would be a function not primarily of the intrinsic utility of the underlying act but instead largely of the reputational effects.

  Norm entrep
reneurs in the private sector can play an important role here. Thus, for example, there was a dramatic decrease in cigarette smoking among young African Americans in the early 1990s, a decrease apparently fueled by changes in social norms for which private norm entrepreneurs are partly responsible.8 In the relevant communities, the changes meant that the social meaning of smoking was not attractiveness, independence, and rebelliousness, but dirtiness and willingness to be duped. More broadly, religious leaders often try to change social norms involving risky conduct such as promiscuous behavior.

  But here as elsewhere, private efforts may be unsuccessful. In this light, law might attempt to express a judgment about the underlying activity in such a way as to alter social norms. If we see norms as a tax on or subsidy to choice, the law might attempt to change a subsidy into a tax, or vice versa. In fact, this is a central, even if implicit, goal behind much risk regulation policy. Educational campaigns often have the goal of changing the social meaning of risk-taking activity. Going beyond the provision of information and nudging, coercion might be defended as a way of increasing social sanctions on certain behavior. Through time, place, and manner restrictions or flat bans, for example, the law might attempt to portray behavior like smoking, using drugs, or engaging in unsafe sex as a sign of stupidity or weakness.

  Are such efforts illiberal or unacceptably paternalistic? Under imaginable assumptions, they should not be so regarded. Choices are a function of norms for which individual agents are not responsible and which, on reflection, many or most agents may not endorse. This is conspicuously so in the context of risk-taking activity involving cigarettes, drugs, unsafe sex, and firearms. Much discussion of whether law should respect “preferences” or “choices” is confused by virtue of its silence on the matter of social norms. People may follow such norms despite the fact that they deplore them.