Expressive Law and Oppressive Norms

Abstract

Many important social interactions can be modeled as chicken or hawk dove games. These games can give rise to two stable equilibrium conventions (hawk/dove and dove/hawk). These conventions are desirable insofar as they permit players to avoid costly conflictual encounters (hawk/hawk). What role does law play in establishing these equilibria? McAdams contends that the law can draw attention to a focal point around which play can coordinate, thus speeding progress towards one of the beneficial conventions. The law can also go one step further: it can select one or the other equilibrium by enacting a positive rule for play. Taking off from McAdams's analysis, this comment addresses how expressive law might influence the rise of oppressive norms or conventions. Those are defined as conventions that take hold in games in which players receive different payoffs from hawk/dove combinations depending on whether they occupy the row or column position and in which occupancy of those positions is fairly fixed. Law is less important in fostering the emergence of conventions in those special cases for two reasons: most such games coordinate around focal identity features that are already naturally salient (displacing the law's role in drawing attention to focal points for play), and the lopsided payoff structure of the games spontaneously determines which convention emerges (displacing the law's role in selecting a convention for play). The comment then addresses how law in its expressive capacity might help bring about changes in entrenched oppressive conventions. It begins with the observation that any shift to an alternative stable pure strategy convention in this context must involve table-turning or a reversal of roles within the existing game. The group that gains more by playing hawk under the dominant convention will gain less by playing dove under the alternative convention, and vice versa. But absent manipulation of payoffs through the imposition of external penalties or a change in player preferences, it is difficult to see how a shift to a new convention would occur spontaneously. That is because no rational self-interested player has any incentive to deviate unilaterally from the dominant strategy of play. (Doves who switch to hawk will suffer losses from a hawk/hawk conflict; hawks who switch to dove will also reduce their payoffs). Recent social history nonetheless demonstrates that oppressive conventions do change. The comment suggests that this occurs when doves move unilaterally into the hawk role despite reduced payoffs in the game. Why might doves do that? Drawing on the work of Edna Ullman Margalit and Robert Frank, the comment suggests that doves defy the existing conventions, even at some cost to themselves, out of moralistic indignation and resentment against the unfairness of their disadvantaged position within the status quo. Doves may come to value improving their position relative to other players or they may seek equality for its own sake. The comment argues that conventions will only change if doves commit to playing hawk regardless of personal consequences, and hawks are convinced of that commitment. If former doves can persuade hawks of their determination to switch strategies, hawks will have reason to abandon their former positions in order to avert their own losses. Based on these observations, the comment concludes that norm changes in hawk/dove games will often be marked by moralistic rhetoric and an appeal to impartial standards. Those appeals signal the determination of former losers (doves) to disgard the status quo regardless of adverse consequences, which in turn helps to convince winners to abandon the status quo as well. These moralistic justifications also provide an impartial rationale for what appears to be a partial result: turning the tables on former winners and elevating former losers. The law can buttress such appeals by reinforcing the normative claims that are made by those who spearhead change. Law can also serve to advertise and coordinate former losers' decisions to force a change despite personal sacrifice, thus recruiting additional individuals to the cause.