Norms and Criminal Law and the Norms of Criminal Law Scholarship

Abstract

This article critically reviews the work of the law-and-social norms school of legal scholarship, and its application to criminal law in particular. It argues that this school has gone down a misguided path in purporting to have discovered a distinct and definable approach to law and social behavior. The norms school claims either to reform or fine-tune social science or to add an entirely new phenomenological dimension to social science about criminal law. Yet it performs simplistic extractions from social sciences whose disciplinary rigor it ignores, and claims new disciplinary technique it fails to demonstrate. It is in that sense a symptom of the continuing anxiety of contemporary legal scholarship about its inability to devise a satisfactory alternative to economics or rational choice. The norms school wins short-term political purchase by claiming valence in policy analysis, but it does so in part because, especially in criminal law, a superficial look at norms ties in very easily with short-term cultural, political, and social trends. It also grants itself a normative halo by borrowing from the vocabulary and intellectual capital of the Humanities, but without any of the attention to interpretive complexity the Humanities demands. The article concludes that legal scholars interested in the sources and effects of social norms should return to the well-developed traditions of ethnography and criminology and to a sociology of crime that acknowledges the many-layered effects of labor markets and broad economic forces.