The Alignment of Law and Norms: Of Mirrors, Bulwarks, and Pressure Valves

Why does law mirror norms sometimes, but other times not? This article examines two types of intervening factors that sometimes cause a persistent misalignment between law and norms: pressure valves and bulwarks. Pressure valves are mechanisms that relieve the pressure placed on the law to change despite a gap with social norms. Pressure valves are found in two distinct social phenomena. First, pressure on law to change to reflect social norms is relieved when law is not enforced against behavior that is illegal, but socially acceptable. Formally deviant acts that are socially acceptable often do not generate an enforcement response. Legal institutions tend to enforce not law, but limits of socially acceptable deviance from the law. Because the popular experience of law lies in its enforcement, the gap between law and norms is not experienced to the majority of the populace if standards of social acceptability, rather than law, are enforced. Second, pressure on law to change to reflect social norms is relieved when social norms are enforced against behavior that is legal but socially unacceptable. If legal behavior that is socially unacceptable is successfully sanctioned through norm enforcement, it will not occur, and the pressure to change the law to reflect norms will be lessened. In contrast to pressure valves, bulwarks are forces that buttress the resistance of law against pressure to change, despite a gap between law and social norms. There are at least two identifiable bulwarks. First, political capture prevents a change in law to reflect social norms when the mechanisms of legal change are controlled by a highly-interested minority group that benefits from the law as is. Political capture will buttress law against pressure to align with norms. The second bulwark is the protection of fundamental rights, through which non-democractic institutions such as courts remove from the purview of popular will some behaviors that are socially unacceptable. Through the recognition of fundamental rights, courts protect the legality of some behaviors despite their violation of social norms. Gaps between law and social norms are neither intrinsically good nor intrinsically bad; all depends on their cause. If we can predictably identify which factors are preventing law from changing to reflect social norms, we will at least have a better understanding of the relationship between law and society. Better yet, we may be alerted to warning signs that any particular persistent gap is a bug rather than a feature of the system

“It’s beyond the pale to smoke hookah”: perceptions of Iranian adolescents on social unacceptability of hookah smoking

The present study aimed to explore the perceptions of high school students on Social Unacceptability (Arabic/Persian term = Qabahat) of Hookah Smoking (SUoHS). In this qualitative study, 31 student adolescents in Tabriz, Iran, were invited to participate in semi-structured individual interviews and focus group discussions (FGDs). Data were analyzed using interpretative thematic analysis. The unacceptability of hookah smoking was viewed at the “disreputability of hookah smoking and hookah smokers”. The students also explained SUoHS in the “incivility of hookah smoking and smokers in the society”, “disrespectfulness of hookah smokers and their families”, and “the consequences of hookah smoking”. The SUoHS is rooted from the social values and norms within communities. To decrease hookah smoking levels among adolescents, school health nursing interventions should be tailored to bridge the gap between their recognition of SUoHS and subsequent behavior change through creating group dynamics highlighting the domains of social unacceptability of the behavior

Social relations in crowds: recognition, validation and solidarity

Social identity research on crowds demonstrates how cognitive self-definition as a crowd member results in conformity to identity-relevant norms. Less research addresses the social-relational changes within a crowd and how these impact collective experience positively. The present study investigates these processes at a month-long mass gathering in India. Analysis of 37 interviews with participants attending the annual Magh Mela pilgrimage evidences the concept of shared identity as underpinning their understanding of this mass gathering. Moreover, a theoretically-derived thematic analysis of these interviews shows the value of the analytic concepts of recognition, validation, and solidarity in illuminating the ways in which social relations in the crowd were experienced and contributed to the experience of the event. Through exploring the multi-dimensional nature of relational connectedness in crowds we contribute to an understanding of crowd experience and group processes

Taming the political: the struggle over recognition in the politics of applied theatre

The emerging sub-field of applied theatre encompasses a wide range of pro-social 'alternative' theatre practices, but it also refers to a discursive practice that seeks to reconcile the apparently contradictory claims of the politics of egalitarian redistribution and the politics of difference. The argument in this paper is that this emerging political position reflects a contemporary turn towards the identity politics of recognition and away from political theatre's traditional concern with the 'old left' politics of redistribution. A critique of the discourse of applied theatre, based on the political philosophy of Nancy Fraser and James Tully, leads to a consideration of the potential of a new left politics of recognition and dialogue in which the processes of participation in social and artistic struggle are seen as the practice of civic dialogic freedom

The 'like' generation: an exploration of social networking's influence on adolescents' productions of gender, identity, (virtual) capital and technological practices

This thesis explores how social networking platforms influence the production of identity, status and capital amongst adolescents. This includes an exploration of how some digital communication platforms have negatively impacted on the social experiences of some teenagers and resulted in these users adapting their digital communicative practices to overcome communicative challenges. The study draws upon data collected via 9 semi-structured interviews, 9 focus groups and 84 surveys with boys and girls aged 11-16 from three schools in England. It explores specific social norms which relate to gender, and how they are negotiated within both masculine and feminine interactions through the respective practices of banter and gossip or stalking. These interactional processes are used as a means of negotiating status and of in-group inclusion and out-group rejection (Goffman, 1963). Furthermore they are important elements in the formation of relationships, identity and social capital. For Bourdieu social capital is the aggregate of the actual or potential resources which are linked to possession of a durable network of more or less institutionalized relationships of mutual acquaintance and recognition (1980, 2). The production of social capital is linked to an individual s capacity to manage group norms and approved values. This study demonstrates that online displays of gender are part of adolescents attempts to generate social capital through gaining positive public affirmations (for example in the form of likes). This has led to a new form of capital which has been titled virtual capital , and which is revealed to be a crucial element in adolescents self-worth and status. Although social networking sites can facilitate the creation of these capitals, they can also simultaneously hinder their creation. Facebook s system of widespread automatic information sharing, alongside a lack user of control in managing the flow of data which is received and shared, has led to many teens experiencing challenges in how they produce identity and gain popularity. This has led to negative social experiences, a growing disillusionment with Facebook, and increased use of more contemporary platforms such as Snap Chat which offer a solution to these problems. Therefore this thesis presents findings on how adolescents use social networking to negotiate gender and identity, produce social status and how these attempts can be confounded by the very technology that facilitates their production

Resisting and conforming to the ‘lesbian look’ : the importance of appearance norms for lesbian and bisexual women

Appearance is one way in which lesbian and bisexual identities and affiliation to lesbian, gay, bisexual (LGB) subculture can be demonstrated. ‘Butch’ and ‘androgynous’ styles have been used by lesbian women to communicate a non-heterosexual identity. However, some LGB appearance researchers have argued that there has been a mainstreaming and diversification of lesbian style in the last couple of decades, which has resulted in less distinction between lesbian and straight looks. This research draws on the Social Identity approach to explore contemporary style in lesbian and bisexual communities. Fifteen lesbian and bisexual women took part in semi-structured interviews which were analysed using thematic analysis. Although some participants reported a diversification of lesbian style, most used the term ‘butch’ to describe lesbian style, and a ‘boyish’ look was viewed as the most common contemporary lesbian style. By contrast, most participants could not identify distinct bisexual appearance norms. The data provide evidence of conflicting desires (and expectations) to visibly project social identity by conforming to specific lesbian styles, and to be an authentic, unique individual by resisting these subcultural styles

Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism

Constitutional Fidelity, The Rule of Recognition, and the Communitarian Turn in Contemporary Positivism

Contemporary positivism has taken a communitarian turn. Hart, in the Postscript to the Concept of Law, clarifies that the rule of recognition is a special sort of social practice: a convention. It is not clear whether Hart, here, means “convention” in the strict sense elaborated by David Lewis, or in some weaker sense. A number of contemporary positivists, including Jules Coleman (at one point), Andrei Marmor, and Gerald Postema, have argued that the rule of recognition is something like a Lewis-convention. Others have suggested that the rule of recognition is conventional in a weaker sense -- specifically, by figuring in a “shared cooperative activity” (SCA) among officials. Chris Kutz, Scott Shapiro, and Jules Coleman (more recently) have adopted this model. This Article criticizes the Lewis-convention and SCA models of the rule of recognition, drawing on U.S. constitutional theory. Imagine a society of U.S. officials who are committed to the text of the 1787 Constitution in a strong form: each official would continue to accept the text as supreme law even if every other official defected to an alternative text, and no official is prepared to bargain or negotiate with the others about the supremacy of the text. The social practice among these officials is neither a Lewis-convention (since there is no alternative text to which every official would shift if every other official did), nor an SCA (since the officials have no general intention to “mesh” their conceptions of legal validity with each other, and in particular have no intention to compromise with officials who deny the supremacy of the 1787 text). Therefore, under the Lewis-convention and SCA models, a hypothetical society of U.S. officials who are committed, first and foremost, to the 1787 text rather than to the community of officials, is not a full-fledged legal system. But this is deeply counterintuitive. The hypothetical society simply embodies, in a particularly pure form, an attitude of fidelity to the 1787 text that many officials and citizens currently profess. The tension between the Lewis-convention and SCA models of the rule of recognition, and constitutional fidelity, points the way to a different model of the rule of recognition: namely, that the rule of recognition is a social norm