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

Abstract

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.