Copyright (c) The
Eric A. Posner.* 1998. “Symbols,
Signals, and Social Norms in
Politics and the Law.” The Journal of
Legal Studies 27 (June): 765-98.
* Professor of Law,
SUMMARY:
... The lone protestor who burns an American flag on the
steps of the courthouse also ignites a political firestorm, and when the smoke
finally clears, it reveals a political and legal system in great disarray:
political leaders condemning the perpetrator in the strongest terms,
prosecutors struggling to bring him to justice, legislators scrambling to outlaw
flag desecration, commentators wringing their hands beneath the looming shadow
of constitutional amendment. ... For the purpose of the example, I will refer
in a stylized way to the signal of "saluting the flag" on appropriate
occasions, but this behavior, which might seem too cheap to serve as a signal,
should be taken as a synecdoche for the patriotic behaviors mentioned above,
and it will be placed in its proper context in succeeding sections of this
article. ... The receiver believes that anyone who salutes the flag is a
cooperator and anyone who fails to salute the flag is a cheater. ... The
cooperator will not salute the flag ($ 6 > $ 6 - $ 3); nor will the cheater
($ 2 > $ 2 - $ 3). ... Suppose also that if someone does not salute the
flag, the receiver believes that he is a cheater. ... Instead, flag-waving
becomes a hollow ritual, and this may drive cooperators over time to abandon
this signal--and the norm entrepreneur to create new ones (this is an example
of symbol transformation). ... The Hermeneutic Effect: The Creation
of Social Meaning and the Problem of Reification. When the law changes a
separating equilibrium into an active pooling equilibrium, people stop
associating the signal with cooperativeness or patriotism and instead associate
the signal with not-being-a-cheater. ...
ABSTRACT
This article uses a signaling
model to explain the role of symbols in people's behavior and beliefs, with
special attention to legal manipulation of symbols. It is argued that certain
actions become symbolic because they have the proper cost structure and because
they are, for historical or psychological reasons, focal. The government can in
theory use standard legal instruments (which mainly affect the cost of the
signal) to change equilibrium behavior and belief. The use of the law in this
way is likely to have unpredictable effects because of multiple equilibria and of the sensitivity of behavior to
parameters, but it occurs frequently because lobbying and other actions that
influence lawmaking can become signals themselves, and the law is simply an
equilibrium outcome. The analysis is used to discuss flag desecration,
censorship, voting, and antidiscrimination laws.
TEXT-1: [*765]
SYMBOLS dominate American
politics and permeate the law, but they are poorly understood. The lone
protestor who burns an American flag on the steps of the courthouse also
ignites a political firestorm, and when the smoke finally clears, it reveals a
political and legal system in great disarray: political leaders condemning the
perpetrator in the strongest terms, prosecutors struggling to bring him to
justice, legislators scrambling to outlaw flag desecration, commentators
wringing their hands beneath the looming shadow of constitutional amendment. By
any standard, this is an extraordinary uproar. And yet the burning of the
American flag harms no one in any way. In a country where the dominant
political view holds that the state's main purpose is to prevent coercive harm,
the attention lavished on the question whether a person should be allowed to
burn an American flag--an action that does not coerce or harm anyone--can only
be called an embarrassment. [*766] True, people are offended at the
desecration of a symbol. But why is the American flag a symbol? And why do
symbols matter?
That they do matter is beyond
dispute. A little research reveals a multitude of controversies over symbols
both in this country and abroad. Examples from the United States include the
placement of creches and other religious symbols on
public property, the display of the Confederate flag in certain southern
universities, n1 the refusal by some citizens to use social security numbers
and license plates with patriotic slogans on them, marches by Nazis and Klan
members, "hate speech" on university campuses, and presidential
apologies to victims of harsh government policies. Overseas, examples include
controversies over the respect owed to the deutsche mark, the kangaroo, and the
Emperor of Japan. n2 The first response of citizens to the fall of the
communist regimes in Eastern Europe was not the privatization of industry and
the reform of the secret police, but the destruction of statues, the renaming
of streets, and the redesign of national flags.
Many of these examples seem
trivial, but the influence of symbols on substantive policies and legal change
cannot be doubted. The politician commits political suicide who supports a
"wrong" (in his supporters' eyes) modification of laws relating to
abortion, affirmative action, Social Security, gun control, and other highly
charged policies, no matter how trivial the proposed modification. When voters
interpret support for a political program as a symbol of a politician's
commitment to their values and interests, political compromise becomes
difficult, even impossible. n3
What accounts for the prominence
of the flag desecration issue and other issues of pure symbolism? One theory is
that the violation of symbols causes "psychic harm," another is that
the violation of symbols conflicts with "social norms." But these
theories do not explain why one behavior has symbolic resonance that causes
psychic harm or violates social norms, while some other behavior does not.
Acknowledgment of a right to be free of any psychic harm, moreover, would throw
all traditional liberal rights--to speech, religion, privacy, conscience--into
doubt. To provide a foundation for a legal order that protects people from some
psychic harms and not others, one must explain how
such harms arise.
This article uses a signaling
model to explain why symbols matter. Symbols [*767]
matter because a person's manifested attitude toward symbols tells others
something about that person's character. People rely heavily on this
information when deciding whether to engage in cooperative behavior in all
realms of life. Indeed, because symbols matter so much, people's efforts to
show respect for them lead to significant forms of conformity that can be
described as "social norms." When symbols change, some people obtain
advantages in forming cooperative relationships while other people lose
advantages they had. Because changes in symbols can thus result in material
loss for some people, these people resist when the government or other people
challenge a particular system of symbols. Moreover, because cooperative
behavior can be highly sensitive to symbols, there are great incentives for the
government to regulate symbols, and dangers, too.
II. ANALYSIS
A. Games of Cooperation
In ordinary life people engage in
symbolic behavior all the time. They shake hands, applaud in theaters, salute
the flag, wear stylish clothes, exchange wedding rings, bow, present
gifts, observe diplomatic protocol, and show deference to superiors. In every
case, the symbolic behavior is intended as a signal that the agent has a
characteristic that the agent wants the receiver of the signal to believe that
the agent has, but that the receiver cannot directly observe. When the symbolic
action serves no obvious private, "substantive" interest, as is the
case of the actions listed above, everyone understands its symbolic nature. One
does not applaud a performance because the act of bringing one's hands together
is pleasurable but because applause signals to the performer and the other
audience members that one enjoyed the show. Much behavior, however, has both
symbolic and substantive purposes. One might discriminate against members of a
minority group both because one dislikes them and because one wants to show
others that one dislikes members of the minority group. One might obtain an
education both because one believes that an education will improve one's skills
and because one wants to show employers that one is smart enough to be able to
earn a degree. One might participate in a patriotic parade both because one enjoys
the spectacle and because one wants to show one's neighbors that one has
patriotic feelings.
To capture these ideas and their
implications for the legal system, I use a signaling model. The model will be
referred to as the "cooperation game." Cooperation refers to any kind
of cooperative relationship that can be modeled as a repeat prisoner's dilemma,
including business, family, and social relationships. I should mention that in
the space I have I can no more than [*768]
sketch out the way the argument would proceed. A more detailed analysis must
await future work.
In the cooperation game citizens
of the high type ("cooperators") care about future gains relative to
present gains and earn more through joint action with others than they earn by
acting alone. In contrast, citizens of the low type ("cheaters") care
more about the present and have adequate private opportunities for gain. Both
types would cheat in a one-shot prisoner's dilemma, but in a repeated version
of this game that has no definite ending and appropriate payoffs, the
cooperators would never cheat while the cheaters would cheat on the first move.
The reason is that the cooperators care enough about future payoffs that they
would want the game to continue, whereas the cheaters value the immediate
payoffs more than the (highly discounted) stream of future payoffs.
Somewhat artificially, we imagine
that the two types ("senders") seek to cooperate with members of
another group ("receivers"). The receivers cannot distinguish the
senders by type. If the receivers cooperate with anyone who approaches them,
they will sometimes gain and sometimes lose. The cooperators do not cheat them
on the first round, so the receivers know that they are cooperators, and the
two players then can cooperate indefinitely and obtain mutual gains. The
cheaters cheat the receivers on the first round, and
the receivers then decline to cooperate further, but they already have
sustained a one-time loss. Depending on the fraction of cheaters in the
population and the difference between the payoffs from cooperation and from
cheating, receivers might be willing to cooperate with anyone, but they would
refuse to cooperate with everyone whenever the expected losses exceed the
expected gains.
To avoid the possibility that
receivers will not cooperate with them, high types try to provide credible
evidence of their type by sending a signal to the receivers. A signal is any
costly action that, if successful, reveals the type of the sender. A signal can
distinguish a cooperator and a cheater only if the cooperator can afford to
issue the signal and the cheater cannot. Examples of signals discussed in the
literature include gift giving, advertising, the acquisition of education that
has no value, and consumption of luxury goods or fashionable items. n4 The person who engages in these actions shows others that
he expects to earn high returns from cooperation, for if he did not, he would
not be able to afford the signal. It should be emphasized
[*769] that signals may be ambiguous: gift giving, for
example, may reflect a person's generosity or altruism rather than his discount
rate. n5 And it should be emphasized that signals that have the wrong cost
structure--that are too cheap or too costly--fail to distinguish the cooperaters and the cheaters, leading to equilibria in which everyone sends the signal or everyone
abandons it. Cooperators send signals in order to reveal their type; to the
extent that the signals have the wrong cost structure, cheaters will mimic the
signals in order to avoid revealing to the receiver that they belong to the low
type. If the cooperators distinguish themselves from cheaters, receivers will
cooperate with the cooperators; if they fail to do so, the receivers will not
cooperate with them (or if the payoffs are appropriate, they will cooperate
with cooperators and cheaters to an equal extent).
Several kinds of signals have
received little attention in the literature but are of great significance. When
a person shows respect for the national flag, performs civic obligations like
voting and jury duty, and avoids people who are considered enemies of the state
but are in fact desirable cooperative partners in the short term, this person
engages in actions that are costly. If receivers interpret these actions as a
means of revealing one's type, and if the actions are cheap enough that
cooperators can recover their costs through payoffs from cooperation, but
costly enough that cheaters cannot recover their costs by defecting in the
first round, the actions may serve as signals. Why these actions serve
as signals, rather than any other costly action (such as sitting on a pillar
for one month), will be discussed subsequently. When focusing on these kinds of
signals, as opposed to gift giving, advertising, and the like, I will sometimes
refer to the cooperation game as the "patriotism game," although the
games are formally identical.
To give the reader a more precise
sense of the influence of signaling incentives on behavior, I will just sketch
the main points, using a simple numerical example. n6 For the purpose of the
example, I will refer in a stylized way to the signal of "saluting the
flag" on appropriate occasions, but this behavior, which might seem too
cheap to serve as a signal, should be taken as a synecdoche for the patriotic
behaviors mentioned above, and it will be placed in its proper context in
succeeding sections of this article.
Senders are either cooperators or
cheaters. The probability that a sender is a cooperator is 0.9. In the first
move Nature determines a sender's type. [*770] The sender learns
his type, then chooses either to salute or not to
salute. The receiver initially does not know the senders' types but does know
the distribution of types. The receiver observes whether the sender salutes,
then decides either to cooperate with the sender or reject him. If the receiver rejects the sender, everyone receivers $ 0.
If the receiver cooperates, and the sender is a cheater, then the sender cheats
the receiver and obtains a gain ($ 2), and the receiver incurs a loss (-$ 2).
If the receiver cooperates, and the sender is a cooperator, then the receiver
and the cooperator embark on a long-term relationship of mutual cooperation
from which they both receive a stream of relatively small payments, though
large in the aggregate ($ 6 for each). Technically, the same stream of payments
is available to the cheater and the cooperator, but because the cheater and the
cooperator have different discount rates, the cheater values it at less than $
2 (the defection payoff) while the cooperator values it at $ 6. It costs both
types of senders $ 3 to salute the flag and $ 0 not to salute the flag.
A separating equilibrium occurs
under the following conditions. The receiver believes that anyone who salutes
the flag is a cooperator and anyone who fails to salute the flag is a cheater.
Therefore, the receiver cooperates with anyone who salutes the flag (expecting
a payoff of $ 6 > $ 0) and rejects anyone who fails to salute the flag ($ 0
> -$ 2). The cooperator receives $ 3 from saluting the flag ($ 6 - $ 3),
which exceeds his payoff from failing to salute the flag ($ 0). The cheater
receives $ 0 from failing to salute the flag, which exceeds the payoff from
saluting the flag ($ 2 - $ 3 = -$ 1). Therefore, neither sender deviates from
his strategy. The receiver has no reason to revise his assumption that all flag
saluters are cooperators, because in equilibrium this
is true. The equilibrium is a perfect Bayesian equilibrium.
Another perfect Bayesian
equilibrium is "passive pooling," by which I mean a pooling
equilibrium in which no one issues the signal. Suppose no one salutes the flag,
and the receiver correctly estimates the proportion of types in the population.
The receiver cooperates with everyone, since the gain (.9($ 6) + .1(-$ 2) = $
5.2) exceeds the gain from rejecting everyone ($ 0). The cooperator will not
salute the flag ($ 6 > $ 6 - $ 3); nor will the cheater ($ 2 > $ 2 - $
3). It does not matter what the receiver's beliefs are off the equilibrium path:
even if he thinks that only cooperators salute the flag, no sender gains by
doing so. Accordingly, passive pooling is a perfect Bayesian equilibrium.
"Active pooling," in
which everyone issues the signal, is not a perfect Bayesian equilibrium: the
cheater does better by deviating and failing to salute ($ 0) than by saluting
($ 2 - $ 3 = -$ 1). But we can create an active pooling equilibrium by
adjusting the numbers. Suppose that the cheater gains $ 4 from cooperation, and
suppose that the receiver believes that the [*771]
probability that a person who salutes is a cooperator is 90 percent. Suppose
also that if someone does not salute the flag, the receiver believes that he is
a cheater. If everyone salutes the flag, the receiver will cooperate rather than
reject (.9($ 6) + .1(-$ 2) = $ 5.2 > 0). The cooperator will not deviate:
the gain from signaling ($ 6 - $ 3 = $ 3) exceeds the gain from not signaling
($ 0). The cheater will not deviate ($ 4 - $ 3 = $ 1 > $ 0).
There are many
other possible equilibria, including equilibria in which people of one type randomize among
signals. To keep the discussion simple, I avoid these issues. n7 The example suffices for my main purpose, which is to
analyze the effect of legal interventions on symbolic behavior. For now I focus
on three kinds of legal interventions. (A fourth is introduced in the next
section.)
Changes in
the Cost of Signaling. Consider again the original example. Suppose
that the cost of saluting the flag falls to $ 1 for both types of sender. The
cheater now gains $ 1 from saluting the flag ($ 2 - $ 1 = $ 1 > $ 0), and so
the separating strategies are no longer a perfect Bayesian equilibrium. Passive
and active pooling equilibria are now possible:
passive, because when both types fail to salute, the receiver nevertheless
cooperates ($ 5.2 > $ 0), so neither type gains enough by distinguishing
himself as a cooperator to justify the cost of the signal ($ 6 > $ 5, $ 2
> $ 1); active, because when both types salute and the receiver believes
that all nonsignalers are cheaters, neither type
gains by failing to salute, being perceived as a cheater, and being rejected by
the receiver ($ 5 > $ 0, $ 1 > $ 0).
Changes in
the Senders' and the Receiver's Gains from Cooperation. We saw in
our discussion of the active pooling equilibrium that an increase in the
cheater's payoff from cooperation from $ 2 to $ 4 will sustain an active
pooling equilibrium. In general, the higher the senders'
gains from cooperation (relative to being rejected), the greater are their
incentives to signal, to avoid being thought a cheater and rejected.
Similarly, if the [*772] receiver's payoff
from cooperating with a cheater is reduced by a sufficient amount, passive and
active pooling can no longer be equilibria.
Changes in
the Receiver's Beliefs about the Ratio of Types. Suppose there is a
passive pooling equilibrium in which cooperation occurs. We saw that this is
possible with the numbers used in the original example, and the result
continues to hold if the receiver's payoff from cooperating with the cheater is
even lower than in the original example, say, -$ 6. Suppose that a shock causes
receivers to believe that 60 percent of all senders are cheaters, rather than
10 percent. In response, receivers will refuse to cooperate when types are not
distinguishable (.4($ 6) + .6(-$ 6) = -$ 1.2 < 0). Now cooperators will
deviate and salute the flag ($ 6 - $ 3 > 0). Cheaters will not deviate ($ 0
> $ 2 - $ 3). As a result, a separating equilibrium is formed. Receivers
will not in the future correct their beliefs: since they cooperate only with
those who salute the flag, and all those who salute the flag are cooperators,
they will not learn the correct ratio.
B. The Norm Entrepreneur
The cooperation game requires
that the signal be costly, but nothing about the game dictates the form of the
signal. As long as an action is both actually and apparently costly, it can
serve as a signal that the sender belongs to the high type. As noted above,
gift giving, advertising, the purchase of fashions, and other forms of
conspicuous consumption can serve as signals in the cooperation game. But
signals can be ambiguous. Giving a gift or attending a parade does not reveal a
person's discount rate if he or she enjoys these activities. The question is, then,
how do certain behaviors take on symbolic value?
One answer draws on the idea of
focal points. n8 Historical coincidence, physical
qualities, and other attributes of a behavior can cause people to associate it
with certain qualities of character. For example, April 19 has arisen, purely
by chance, as a date on which an opponent of the government can distinguish
himself by blowing up a building or engaging in other forms of protest. The
coincidental occurrence of several significant conflicts between the government
and right-wing opponents on that date has given it salience.
Other signals are fabricated.
Martin Luther King Day, for example, was created by the federal government; it
did not arise spontaneously. Once it was created, people could signal their
loyalty to the civil rights movement by making gestures of respect on that day,
in a publicly visible way.
Truly fabricated signals are
rare. Usually, when the government or private [*773]
individuals succeed in establishing certain actions as signals, they do so by
drawing the public's attention to one of several conflicting focal points. To
show respect for civil rights, should one have a holiday or some other
celebration? Should it be in honor of King or another leader? Should it be on
the date of King's birth or death or on the date of one of his accomplishments?
History supplies a number of focal points; authoritative individuals enable
citizens to coordinate around one.
To analyze these points more
formally, we embed the cooperation or patriotism game in a larger game. Prior
to the first move of the cooperation game, a "norm entrepreneur" n9
announces that a particular action will be a signal. The norm entrepreneur
states that a particular action, for example, voting, will be understood as a
signal of cooperativeness. n10 The cooperation game is
modified in the following way. Each sender chooses among all possible signals.
The sender might choose the signal recommended by the norm entrepreneur or
might choose another signal. After the cooperation game is played, the norm
entrepreneur receives a payoff that is a function of the number of people who
issue the signal that he recommends. In some contexts it makes sense to say
that the norm entrepreneur receives payoffs if he eliminates an active pooling
equilibrium; in other contexts it makes sense to say that he receives payoffs
if he transforms a passive pooling equilibrium into a separating equilibrium.
The norm entrepreneur does not, ex ante, have full information about the
payoffs of the parties in the cooperation game, so he cannot invariably choose
the signal that maximizes his payoff. Because the game repeats itself, however,
the norm entrepreneur can invent new signals in future rounds if earlier
signals fail to yield high payoffs. n11
In choosing among signals senders
have only a rough idea of which signals will allow them to distinguish
themselves from cheaters and which signals will not. They must also worry about
whether the receiver will recognize the signal as an effort to distinguish
oneself, as opposed to simply a pleasurable form of behavior. This is a
coordination problem: as long as everyone, or most people, believe that certain
behaviors serve as signals, and as long as these behaviors actually have the
right cost structure, then [*774] these behaviors can act as
signals. Senders will rely on custom (for example, gift giving on holidays),
but also on meanings provided by the Zeitgeist (for example, anticommunism),
and the suggestions of authoritative norm entrepreneurs narrow down the pool.
As long as enough senders follow the suggestion of a person, he will become an
authentic norm entrepreneur. (An important condition is salience: that is why
even politically ignorant celebrities can make influential political and
cultural announcements, and the descendants of royalty, no matter how
undistinguished their abilities, could always find a following.)
The significance of the NE game,
as I will call it, is that it shows that if a signal fails to create a
separating equilibrium or an active pooling equilibrium, the norm entrepreneur
has an incentive to create a new signal, in the hope that it will be more
successful. But it also should be emphasized that signaling can arise spontanteously around random events that become focal (like
April 19), with norm entrepreneurs playing no role. In either case, we will
refer to the creation of new symbols to replace old symbols that fail to
produce the appropriate equilibrium, as symbol transformations.
More realistically, many
people--including politicians, academics, novelists, journalists, and other
cultural players--compete to be a successful norm entrepreneur in the first
round of the NE game. They propose signals; cooperators use the signal that
seems most likely to create a separating equilibrium. There will be conflict
and confusion, but pooling around a single signal may emerge, with benefits
redounding to the norm entrepreneur(s) who proposed it.
We can now add a fourth
alternative to the three methods for influencing signaling equilibria.
When the state or a private norm entrepreneur successfully publicizes a new
signal, people may substitute from an old signal to the new signal, and the new
signal may change the equilibrium. n12
C. Why Patriotism?
Unlike signals such as gift giving
and advertising, patriotic signals appeal to national values. But the
differences between these actions are superficial. Actions can be interpreted
as a signal of one's desire to cooperate when they have some connection to the
well-being of the receiver. When the pool of players consists of people in a
social or business relationship, signals typically are actions that appeal to
the pleasures and interests of the members of the group, which can be quite
local and idiosyncratic (barbecues, fishing expeditions, ritual fasting and
feasting, exchanges of gifts, and so [*775] on). When the pool of
players consists of a nation, the actions must be thinner--they must not cause signficant offense or cost to most of the people in the
country. In such circumstances, one finds two kinds of symbolic behavior:
"pure" symbols, such as saluting the flag, whose benefits are
entirely nonmaterial; and "impure" symbols, such as voting and
discriminating against enemies of the country, which produce public goods that
benefit all or most citizens. The latter are more focal,
in the sense that we all recognize that a person who sacrifices himself for the
country is a patriot; the former require a concerted effort to create and
disseminate a tradition that everyone understands.
To explain why demonstrations of
patriotism can serve as signals, it helps to use a stylized example. The
McCarthy era arose suddenly after the successful explosion by the Soviet Union
of a hydrogen bomb and the exposure of Soviet spies in the American government,
events that heightened fears about the security of the United States and
provoked concern about national cohesiveness. Even in ordinary business and
social relationships far removed from international events, citizens will think
that any person who engages in an action that weakens American security,
however remotely, may be a "cheater." After all, cheaters prefer
short-term gains to long-term payoffs, and the decline of a country is usually
a slow and insidious thing. But it is not necessary to assume that people
believe that any person who is a remote threat to the overall security of the
United States cannot be trusted to deliver widgets on time or to help construct
a new fence. It is enough to assume that some people will draw attention to their
own loyalty by ostentatiously avoiding (or ostracizing) people who engage in
actions that may be interpreted as unpatriotic, no matter how small and
unthreatening these actions. If successful, anyone who wants to avoid being
thought a cheater will pool around the actions, including ostracism of people
thought to be cheaters, resulting in conformity to supposedly patriotic norms.
As the Soviet threat increased,
then, people felt they could distinguish themselves from cheaters by refusing
to criticize the government (or at least the hawks in the government), engaging
in ostentatious patriotic displays, casting suspicion on immigrants and others
whose connection to the United States was attenuated, and criticizing people
who criticized American values and especially those who supported the communist
ideology of the Soviet Union.
Notice that the significance of
world events was twofold. First, they supplied the focal point, thus suggesting
the form of the signal. If the
D. Assumptions and
Qualifications
Senders and
Receivers. One inelegant aspect of the model is the division of the
population into receivers and senders, when in fact everyone is both a receiver
and a sender. The rationale is that when deciding whether to signal, a person
takes the rest of the population as given. The receiver can be thought of as
the average person a sender expects to deal with, given that in any functional
society most of the population consists of cooperators and a small fraction of
the population consists of cheaters. The artificiality of these assumptions could
be avoided by using a model in which everyone sends and receives signals, n14
but such a model would produce unnecessary complexity.
Cheaters.
A person might gain little from cooperation because he has a high discount
rate; but he also might gain little from cooperation because he does not desire
that which others can offer or because the others demand as a signal of
cooperativeness an action that this person finds unusually costly. Thus, the
principled communist or liberal might refuse to show respect
[*777] for the flag, or to engage in other supposedly
patriotic actions, because he or she believes that the truly patriotic person
is one who points out the deficiencies in the existing political system. The
difference between a real cheater and, say, a principled liberal is crucial:
the former does not care about the future while the latter cares about the
future but believes that the required symbolic behavior is repugnant. But the
two types are lumped together by the cooperator who is persuaded of the value
of the signal. We return to this problem--the crudeness of
signals--subsequently. n15
The Reason for Signaling: The
Payoff from Private Cooperation. The cooperation and patriotism models
assume that citizens issue signals, even self-consciously political signals, in
order to induce other citizens to cooperate with them. An alternative purpose
for issuing political signals is to reveal one's political preferences to the
government and other private citizens, in the hope of influencing the decisions
of the former and the voting of the latter. n16 A
third purpose for issuing political signals is to reveal one's costs to
potential competitors. n17 These motives are probably
important, but for simplicity I ignore them.
Note also that it is better to
think of receivers cooperating more or less with citizens, rather
than making an all or nothing choice.
Discrete
versus Continuous Types and Actions. An alternative model might
assume that people fall along a range of continuous types, with a few people
being supercooperators and a few people being supercheaters, and everyone else clustering around a
moderate position. It might also assume that people could send a range of
patriotic or cooperative signals, from the very cheap to the very expensive. A
model that made these assumptions rather than assuming dichotomous types and
actions would probably not result in substantially different conclusions, for
our purposes, though the model has not yet been well developed in the
literature. A particularly nice aspect of such a model, however, is that it
might show how continuous preferences result in discontinuous behavior, a
result that is artificially generated in dichotomous models. The result is more
persuasive also, as it suggests that if people do not fully conform, their
behavior will still reflect the [*778]
influence of the conformity of others. n18 This result
is consistent with observed behavior; its significance will be discussed
subsequently. n19
III. STATE REGULATION OF SYMBOLIC
BEHAVIOR
When the state announces some
prohibition, for example, a prohibition on the burning of American flags, we
can distinguish two kinds of effect that the prohibition may produce. First,
the law has an effect on behavior: it increases or decreases the amount of flag
burning. This effect will be called the behavioral effect of the law.
Second, the law might change people's understanding of the behavior it
influences. For example, those who continue to burn flags after the law is
enacted may be thought to be unpatriotic, whereas prior to the law they might
have been thought less unpatriotic or just odd; or, conversely, those who
continue to burn flags may be admired as civil libertarians, whereas prior to
the law they might have been thought to be unpatriotic. The law's effect on
people's beliefs about the kind of person who engages in a particular action
will be called that law's hermeneutic effect.
The cooperation game shows the
various ways in which a law's behavioral and hermeneutic effects are generated.
We mentioned the four methods earlier. First, the law can modify the cost of
sending a signal. Second, the law can modify the payoffs from cooperation.
Third, the law can modify receivers' beliefs about the proportion of types in
the population. Fourth, the law can modify the norm entrepreneur's payoff from
constructing a signal or the law can construct a signal itself. These four
effects in combination may produce a change in the equilibrium: the behavior in
this new equilibrium represents the law's behavioral effect; the beliefs in
this equilibrium represent the law's hermeneutic effect.
The following examples illustrate
these phenomena. No effort is made to be systematic, however; the examples
focus on different aspects of the models. Section IV draws together the
threads.
A. Flags
One way to signal one's
cooperativeness is to show respect for the flag. I will call "saluting the
flag" any of a range of actions, including actually saluting the flag when
the opportunity arises, displaying the flag, especially when done consistently
with the complicated rituals, and so on. I will call "denigrating the
flag" any gesture perceived as disrespect to the flag, from
[*779] ignoring the flag when one should show respect for
it, to burning it on the steps of the courthouse. Saluting a flag is costly.
Although cooperators and cheaters incur the same cost in saluting the flag,
cooperators earn higher returns when flag saluting functions as a signal,
because receivers do not cut off relations when they discover the cooperators'
type, whereas they do end relations with the cheaters. The cooperation game
shows why enthusiasm for the flag waxes and wanes. In times of crisis the cost
of being ostracized is so great that no one would risk the punishment that
might result from deviation from active pooling. In times of security because
receivers lose little from cooperating with cheaters, they will cooperate with
anyone, so cheaters do not bother to salute the flag. But if receivers will
cooperate with people who do not salute the flag, cooperators will not incur
the cost of saluting the flag. In times of tension separating may occur, as
only the cooperators find it profitable to salute the flag.
Does it make sense for receivers
to believe that people who fail to show respect for the flag are not good
cooperative partners? Yes, because of the association with soldiers who fight
and die for the flag in a just war. Soldiers are the preeminent cooperators,
sacrificing themselves for the sake of the nation. No, because soldiers do not
fight for the flag (but, say, for the King), and the flag is (say) simply a
means of identifying property of the country; or no, because the flag is
associated with a particular government, not the nation, and that
government is despised. Thus, in many countries the idea of a sacred flag is
ridiculous, as is the idea of burning it, and indeed
few national flags are burned outside the United States. The flag has become in
the United States a focal point of cooperativeness at the national level (that
is, patriotism) as a result of purely contingent circumstances and traditions
that do not exist in most other countries. n20
Any of the equilibria
mentioned above may be desirable or not, because saluting the flag is an
imperfect signal of propensity to engage in cooperation. Consider the
separating equilibrium. Some people will show respect for the flag in order to
obtain cooperative gains but still cheat when the time is right. People who
believe that patriotism, rightly understood, requires nonparticipation in
patriotic displays will decline to show respect for the flag because of the
intrinsic costliness of doing so, and the gains from cooperating with them will
be lost. As long as error is low enough that receivers gain by cooperating only
with those who salute the flag, the equilibrium will be sustained. Notice also
that when everyone salutes the flag to avoid being rejected, but it is
generally believed that not everyone is a patriot, [*780]
people will realize that some flag-wavers must be cheaters and that flag-waving
is not a reliable signal of patriotism. Instead, flag-waving becomes a hollow
ritual, and this may drive cooperators over time to abandon this signal--and
the norm entrepreneur to create new ones (this is an example of symbol
transformation).
The state, considered
exogenously, can influence the flag-waving game in a variety of ways. First,
the state can modify the cost of saluting the flag. Consider a law that not
only illegalizes the burning of flags but requires people to show respect for
the flag in various ways. (A law that simply banned the burning of flags
would not impose any cost on the vast majority of people; its importance will
be discussed in Section IVC.) Suppose
that before the law is passed, a separating equilibrium exists. Cooperators
show respect for flags; cheaters denigrate or even burn them. The law decreases
the citizens' cost of saluting the flag by increasing the cost of substitutes,
denigrating or ignoring the flag. Most plausibly, this change would create an
active pooling equilibrium. Now that it costs so much not to send the
signal, cheaters are forced to mimic the cooperators and send the signal.
However, the law could have a
different effect on behavior. When the cost of not
sending the signal rises, the receivers may anticipate that
everyone--cooperators and cheaters alike--will show respect for the flag.
This being the case, the receivers no longer can rely on respect for the flag
as a reliable indicator of a person's type. If the receiver's loss from
cooperating with a cheater is high enough, the receiver will refuse to
cooperate with anyone when both types can afford to salute the flag. But if the
senders anticipate this reaction, they will not bother to incur the cost of
showing respect for the flag, even though the law has reduced this cost. Why
incur this cost, if the receiver is not going to respond by cooperating?
Accordingly, the law results in a passive pooling equilibrium, in which no one
shows respect for the flag and no one cooperates with anyone else.
An additional complication arises
when members of a deviant subcommunity show their
commitment to each other by desecrating the flag. This action serves as an
effective commitment mechanism because those who publicly desecrate the flag
and are subsequently ostracized by members of the dominant community reduce the
value of their opportunities outside their group, increase their incentive not
to free ride on the group, and thus enhance their trustworthiness within the
group. Thus, a law that punishes flag desecration could result in more, not
less, flag desecration, and in the greater effectiveness of the antisocial
activities of deviant groups.
Predicting the law's behavioral
effect is impossible: it could increase the amount of respect shown for the flag
or reduce it. The defender of flag desecration laws, however, might argue that
the purpose of the law is to change [*781]
beliefs, not behavior--to instill in people feelings of respect for the flag.
But the hermeneutic effect of the law is likewise impossible to predict.
Respect for the flag increases when people increasingly believe that only
cooperators show respect for the flag. If the status quo equilibrium is passive
pooling, and if the law creates a separating equilibrium, then the law might cause
people to abandon their belief that flag saluters are
odd or idiosyncratic people and accept the belief that they are cooperators and
patriots. But if the status quo equilibrium is a separating equilibrium, and
the purpose of the law is to enhance people's respect for the flag, the law may
well fail. If it produces a passive pooling equilibrium, people will no longer
associate saluting the flag with any character type. If the law produces an
active pooling equilibrium, people will believe that everyone who waves a flag
may be a cooperator or a cheater. We term this phenomenon reification.
The law in this case ambiguates the meaning of the
symbol, rather than increasing respect for the symbol. If the law's purpose is
to enhance respect for the flag, then the law is self-defeating.
The complexity of predicting the
effect of a flag-burning law on behavior and beliefs should be evident. One
should doubt, then, the claim that a law against flag burning would have any
predictable effect that would be socially desirable. Then why is there so much
support in the United States for a law against flag burning? This question is
answered in Section IVC. n21
B. Self-Censorship
Self-censorship, like respect for
the flag, may emerge as a signal of cooperativeness. In the struggle to find
ways of distinguishing themselves as cooperators, people accuse critics of the
government of being cheaters, while drawing attention to their own support of
the government, by implication a signal of their patriotism. The average person
may like to criticize the government or feel an obligation to do so; thus, not
doing so will usually be a cost. But cooperators recover their cost through
cooperation with receivers; cheaters may not. The association between
self-censorship and patriotism arises frequently in countries, no doubt in part
because of traditions of deference to authority, and no doubt in part because
of the threat posed by internecine conflict to national survival in times of
war. Norm entrepreneurs frequently exploit these circumstances.
The difference between
self-censorship and respect for the flag is just a difference in the cost
structure of the action. Some people might find self-censorship more costly,
others might find respect for the flag more costly. [*782] In any
event, whether one action, the other, or both actions emerge as signals of
cooperativeness depends on the various costs faced by the different types and
the extent to which each signal is made focal by tradition and other
circumstances.
The problem with self-censorship equilibria is that they may reduce the well-being of the
population. This point is explored at length by Timur
Kuran in a recent book, n22 so I will be brief. When
the reputational costs are high enough, cheaters and
serious-minded cooperators, who care deeply about the state but disagree with
prevailing views, may avoid publicly criticizing the government, in which case
valuable information is lost. n23 During the McCarthy era, when the cost of
criticizing the government (or, at any rate, McCarthy and the policies he
supported) became extremely high, many people--cooperators and cheaters
alike--stopped criticizing the government, and in this equilibrium not only was
socially valuable patriotic criticism lost, so was the valuable exposure of
cheaters.
One of the most striking aspects
of McCarthyism was that this campaign resulted from McCarthy's entrepreneurial
modification of focal points, not from changes in the law. But we can also
analyze the effect of a law, such as a censorship law. Imagine that a passive
pooling equilibrium exists: no one censors himself. The state enacts a
censorship law. If the law provides for the correct level of sanctions, it
creates a separating equilibrium. The law has two effects one might care about:
it reveals cheaters (the internal effect) and it discourages criticism
of the government (the external effect). This is characteristic of all
the laws under consideration. The pro-flag law reveals cheaters and it
encourages respect for the flag. The censorship law may be more effective than
the pro-flag law at exposing cheaters, but it may also cause
more harm than the pro-flag law, because speech has valuable external effects
that showing respect for the flag, for the most part, lacks.
The state can also produce or
maintain separating equilibria or active pooling equilibria by influencing the receivers' beliefs about the
fraction of cheaters in the population. Suppose that receivers believe that
almost all people are cooperators and cooperate with everyone, so no one sends
the signal of not criticizing the government. The government now warns the
receivers that a lot of people are in fact cheaters. If the government is
persuasive, the receivers may refuse to accept new cooperative partners (or,
more realistically, they take precautionary measures that lower the gains to
the sender); in response, the cooperators distinguish themselves as cooperators [*783] by declining to criticize the
government. If cheaters would not be able to recover their costs, they will not
mimic the cooperators, and a separating equilibrium is produced. Because
receivers learn the types of only the senders they cooperate with, they will
have no grounds for later revising their beliefs despite their inaccuracy.
Propaganda can be analyzed in
another way. In the NE game the state can take the role of norm entrepreneur by
issuing propaganda. By issuing propaganda the state creates an opportunity for
people to signal their patriotism or subversion. The signal is
self-censorship--resisting one's impulse to disagree with the propaganda. The
more baldly untruthful the propaganda, the more clearly does a person signal
his patriotism by declining to disagree with it. Official lies are in this way
like a flag or a national holiday: they provide the opportunity for
demonstrating one's loyalty to the government.
C. Voting and Other Forms of
Civic Participation
Rational choice theorists have
not produced a satisfactory explanation of why people vote. Given the vanishingly small chance of influencing the outcome of an
election and the relatively high and certain cost of taking time from work and
standing in line at the voting booth, one would expect people never to vote.
Positing a "taste" for voting turns the problem into a tautology; other
efforts to play with utility functions have not been satisfactory. n24 One might just assume a social norm in favor of voting,
and work from there, n25 but this strategy transforms the question, Why do
people vote? to the question, Why does a social norm
require people to vote?
An adequate theory of voting
behavior would take us too far afield, but we can
sketch its outlines. The signal is the act of voting in the voting booth, not
the vote in favor of one person or another. Voting is observable, even if the
casting of the vote is not: one's friends, associates, and family members know
that one voted, because one took time off work or simply told them that one did
when duplicity would risk one's reputation or because one is seen waiting in
line. The act of voting is costly both for the cooperator and for the cheater,
but the cooperator recovers his costs through repeated rounds of cooperation
with the receiver, while the cheater does not. In the separating equilibrium
the voter is believed to be a cooperator, and the nonvoter is believed to be a
cheater. This explanation turns the voting paradox on its head: voting
functions as a signal precisely because the [*784]
costs exceed the material gains. If voting were profitable, as would be the
case if people were paid to vote or severely punished for not voting, or if
everyone derived "expressive utility" from voting, then cooperators
and cheaters would all vote. The motive for voting, on this theory, is not to
satisfy some taste for voting, or for expressing one's views, or even for
helping one's country--although all these motives would strengthen the
patriot's incentive to vote--but to obtain cooperative returns from other
private actors. Patriotism is relevant only as a theory of the origin of the
psychological association of voting and cooperation.
One would expect a separating
equilibrium in which the more cooperative people vote and the less cooperative
decline to vote. In the United States many people disapprove of those who do
not vote and admit it. This reaction is inexplicable under the theory that
posits a taste for voting, whereas it follows from the signaling model: the
disapproval expresses the receiver's view that you may not be a trustworthy
person. Times of national emergency could stimulate a pooling equilibrium in
which everyone (or nearly everyone) votes. The main reason for voting at such
times is not that your single vote now matters (it still does not) but that it
now matters if people think you are a cheater.
I do not have space to survey the
evidence for and against the signaling theory of voting, but let me briefly
mention a few pieces of evidence. First, the fact that voting increases with
wealth and education n26 supports the signaling theory but contradicts the
taste theory: an action can serve as a signal only if it is costly, and the
cost of voting increases with one's opportunity costs. Second, voting increases
with membership activity in organizations like parent-teacher associations,
charitable organization, neighborhood organization, business organizations,
interest groups, and unions n27 --all organizations that require cooperative
behavior from their members. Third, respondents' frequent exaggeration of their
voting behavior to pollsters suggests an embarrassment about admitting failure
to vote, embarrassment that may express their concern about their reputation.
n28
[*785] Some countries
penalize nonvoters with small fines; Italy posts the names of nonvoters in a
public area. All of these countries enjoy a high voting rate. n29 But while
both kinds of law effectively reduce the relative cost of the signal, voting,
the first method relies on the legal bureaucracy whereas the latter exploits
social sanctions that exist independently of the law.
Hand-wringing about low voter
turnout is often scoffed at, because it could mean that people are relatively
satisfied with the political status quo. The problem, however, is that because
of peace and prosperity, it matters less if one is believed to be a cheater, so
people do not bother to vote as a signal of patriotism. If, as a result, voter
turnout falls, there will be undersupplied information about the preferences of
citizens, leading to mistaken actions by politicians. However, equilibria in which many or all people vote are not necessarily
desirable, either. People who vote solely for reputational
reasons will not take their vote seriously, failing to inform themselves about
the various candidates and voting instead on the basis of the mellifluousness
or familiarity of the candidates' names.
D. Discrimination on the Basis
of Race, Ethnicity, and Religion
Discrimination against members of
a minority group can serve as a signal of cooperativeness or
"patriotism." Because members of the out-group have skills and other
desirable qualities, refusal to deal with them commercially or socially is
costly for a member of the in-group. As long as other members of the in-group
recognize that discriminatory action constitutes self-sacrifice for the sake of
their group, a separating or active pooling equilibrium can emerge. n30
But why would people think that
discrimination against minorities is a signal of cooperativeness? Sometimes,
the answer is simply that the members of the outcast group have social or
ancestral connections with a group that is unambiguously a threat to the
majority group. Examples include Americans of Japanese origin after the bombing
of Pearl Harbor, and people of Serbian ancestry living in Croatia or Bosnia.
Sometimes, the answer is that the members of the outcast group compete with
members of the majority group for scarce resources. If black migration
threatens the power of whites in the labor market, then whites can demonstrates
their loyalty to each other by discriminating against blacks. Sometimes, a
minority group [*786] prospers while the
majority does poorly, and the source of the minority group's prosperity is not
understood but can be loosely connected to the majority's problems. Jewish
dominance of the credit market and other important markets in European history gave
Jews political power out of proportion to their numbers, a result that was used
to justify theories of their harmful influence. These phenomena are
self-reinforcing: when members of an out-group do well in a market or in a
society, they become suspect, and members of the larger society discriminate
against them to show their loyalty to each other, but this makes it even more
important for out-group members to rely on each other, enhancing their trust
and their mutual gains, leading to further discrimination against them by the
insiders. n31
Discrimination against groups for
purely self-interested motives is often rationalized. A common rationalization
that supports the use of discrimination is a theory of racial or ethnic
superiority, and such theories are endlessly supplied by norm entrepreneurs.
That these theories are transparently false (it cannot be the case that the
Serbs are superior to the Croats, as the Serbs believe, and that the Croats are
superior to the Serbs, as the Croats believe, or that the Aryans are superior
to the Slavs, as the Nazis believed, and yet that Slavs are superior to
everyone else, and so on) shows that the forces that drive people into
signaling equilibria are more powerful than the
desire for truth. Just as one shows one's patriotism in a totalitarian country
by endorsing its obviously wrong propaganda (the more obviously wrong, the more
effective the signal), one shows one's patriotism in a fascist country by
participating in collective discrimination against minorities even when one has
warm feelings toward them or the minorities are defined in an obviously
arbitrary way. n32 The signaling theory thus
emphasizes the arbitrariness of state ideologies, be they ethnic, religious, or
nationalistic. What counts as a signal depends on the importance of cooperation
for individuals (which rises and falls with fluctuations in economic and
political circumstances), the historical accidents
that create associations between certain kinds of behavior and certain kinds of
people, and the relative costs of the actions that are made salient by these
associations. This is in contrast with views that people with certain
characteristics, such as ethnicity and race,
"naturally" belong together under one government. Indeed, the signaling [*787] theory shows how ethnicity and
race are inventions that respond to the demand for criteria that facilitate
cooperation against potential threats. n33
The social cost of this behavior
is obvious, but it is worth mentioning that, unlike the examples of flag
burning, self-censorship, and voting, the signal is an injury to a third party
who is not a player in the game. The members of the minority are not the
"cheaters"; those who fail to discriminate against them are the
"cheaters." Although any theory that justifies the view that people
who fail to discriminate against a certain group are cheaters will almost
certainly conclude that members of that group are cheaters as well, special
venom is directed to the insider who breaks ranks and treats outsiders with
respect. n34
It is unnecessary to repeat the
analysis of equilibria, and instead I will quickly
mention examples of each of the four kinds of laws described above. First,
antidiscrimination laws raise the cost of sending the signal, thus possibly reducing
the amount of discrimination. Second, because whites were required to ostracize
a white who treated blacks as equals in the South n35 (this was a social norm,
not a law), a receiver's payoff from cooperating with
a white person who cooperated with blacks would decline by the expected
sanction to the receiver for violating the norm of ostracism. Third, the use of
propaganda to convince citizens of an internal threat from people not
belonging to the minority (that is, the cheaters) could enhance incentives to
engage in discrimination as a way of showing people that one is not such a
cheater. Fourth, the state can, as a norm entrepreneur, attempt to establish
the signal in the first place--for example, endorsing or rejecting doctrines of
racial superiority and placing religious symbols on public property.
The signaling theory helps
explain the rapidity with which norms of discrimination change. Jews had been
assimilated in German society decades before the rise of Hitler; a few years
later, they were outcasts. Blacks had been outcasts in American society
centuries before the civil rights movement; within a generation, the most
obvious forms of discrimination had vanished. It is possible that these changes
were due to fundamental changes in attitude, but the rapidity of the change,
and the widespread feeling, especially among minorities, that the changes have
been shallow, suggest the influence of signaling equilibria.
[*788] More should be
said about the state's role as a norm entrepreneur. Official pronouncements
play an important role, because officials enjoy the attention of the nation and
thus can cheaply create focal points--for example, Hitler spinning out theories
of Jewish influence. The effectiveness of politicians in this way accounts for
the heavily symbolic content of so much political behavior. Officeholders and
candidates for office must endlessly shake hands with, march in parades with,
and attend the ceremonies of people who belong to powerful ethnic
organizations, because once a politician associates himself with a minority
group, attempts by him later to exploit circumstances and blame national
problems on that group will lack credibility. If the group were so evil, the
politician's earlier association with it would count against him.
The norm entrepreneur recognizes
that a threat to the social order is presented when the minority becomes
invisible: laws defining the minority can prevent the signal from becoming too
costly. The yellow star in Nazi Germany and antimiscegenation
laws in the
When any of
these factors eliminates the effectiveness of a signal at identifying cheaters,
while the felt need to identify cheaters remains, the norm entrepreneur will
search out new signals. n36 The most striking
examples of the resulting symbol transformation come, again, from the history
of anti-Semitism in
IV. SOME THEMES
A. Positive Implications
As noted earlier, the laws and
official pronouncements of the state can influence equilibria
in four ways. First, a law typically influences the relative costs of sending a
signal. An antidiscrimination law increases the cost of signaling patriotism
through discrimination; a censorship law reduces the cost of signaling
patriotism by not criticizing the government. Second, a law may influence the
cooperative payoffs for sender and receiver. An example would be a law that
taxes employers who hire critics of the government or people who violate
widespread norms of racial exclusion. Third, a law may influence the receiver's
beliefs about the proportion of types in the population. Propaganda produces
this effect through persuasion; other laws, such as laws that deport or
imprison people who belong to the wrong type, change the receiver's beliefs by
changing the actual proportion of types. Fourth, a law may influence or crowd
out efforts by norm entrepreneurs to construct new signals; laws and official
acts create new signals or refine existing ones by providing opportunities to
send the signal or by increasing its visibility.
In predicting the effect of a
law, one must take account of several complications. First, the effect of a law
depends on the status quo equilibrium. A censorship law imposed on an active
pooling equilibrium may have no effect on behavior; but imposed on other equilibria,
it may cause a significant change in behavior. Second, the effect of a law even
on a given equilibrium may be unpredictable: as we saw in Section IIIA, a law that reduces the cost of a signal may produce
an active pooling equilibrium, but it also may produce a passive pooling
equilibrium. Third, a single law may influence equilibrium behavior through
more than one of the four routes mentioned in the prior paragraph. A law
against flag burning may both reduce [*790]
the relative cost of flag-waving and increase the cost of flag-waving (for
cheaters) by more firmly associating it with patriotic activity. The effects
can thus be offsetting, but they can also be reinforcing. Fourth, a law
designed to eliminate undesirable signaling equilibria
in the dominant community may have perverse effects on behavior in deviant
communities. This is the paradox illustrated most vividly by laws that punish
discrimination and flag desecration. By increasing the cost of these
activities, the law makes them viable commitment mechanisms in deviant or
alienated groups, resulting in an increase in the undesirable activity rather
than a reduction, at least among the members of those groups.
Two other complications are
discontinuity and symbol transformation. To understand the problem of
discontinuity, imagine an active pooling equilibrium in which everyone
discriminates against members of a minority group. Assume that
"tastes" for discrimination are distributed uniformly: many people
would like not to discriminate but suppress their inclinations to avoid being
ostracized. A law is enacted that prohibits discrimination against minorities.
If the sanction is small, it is unlikely to affect behavior: the cost of
ostracism exceeds the cost of the sanction. As the sanction is gradually
increased, discrimination does not change by much. As long as the reputational sanction exceeds the legal sanction, behavior
is unaffected except for those with the most extreme preferences. But at some
threshold, when the legal sanction exceeds the reputational
sanction, the amount of discrimination will decline discontinuously. The reason
is that once people with the stronger preferences against discrimination
deviate from the active pooling equilibrium in sufficient numbers, the reputational sanction disappears, and all the people who
would cooperate with the members of the minority group but for the existence of
the reputational sanction will stop discriminating. n38 This phenomenon means that a law that has a small
sanction (or even no sanction, like an announcement by an official) may have a
disproportionate influence on behavior, and a law that has a large sanction may
have little or no influence on behavior. Social norms are robust, but they are
also delicate. n39
Symbol transformations occur
because exogenous changes cause old signals to fail, eliminating the ability of
receivers to distinguish cooperators and cheaters and thus giving cooperators
and norm entrepreneurs an incentive to discover new signals to replace the old
signals. We have already discussed the substitution from discrimination on the
basis of religion to discrimination on the basis of race, the latter becoming a
signal of loyalty [*791] when the former
lost its effectiveness. Another example, which is presented in stylized form,
comes from the McCarthy period. At roughly the same time McCarthy was making
the connection between communism and subversion, others were asserting a connection
between homosexuality and subversion. Thanks to the widely read Kinsey report
and the social and demographic dislocations caused by World War II, it suddenly
became evident that a lot of people engaged in homosexual behavior, just as a
lot of people supported communism. Because refusing to cooperate with
identifiable homosexuals is costly, discrimination could serve as a signal of
cooperativeness. But for this signal to function properly, it was necessary for
people to believe that discrimination expressed a desire to signal
cooperativeness rather than a moral conviction, prejudice, or taste. Norm
entrepreneurs had to draw the connection between homosexuality and subversion,
and this was done in a variety of ways--by appealing to traditional moral and
religious antipathy to homosexual behavior while claiming the importance of
unity for national security and by claiming that homosexuals corrupted youth on
whose "manliness" the nation relied. n40 But because homosexuals were
no more a threat than anyone else, and because it was therefore not much more
costly for a real cheater to discriminate against a homosexual than it was for
a patriot, something like an active pooling equilibrium resulted. Sweeping
legal and nonlegal attacks on homosexuality
paralleled the mostly unofficial attacks on communists. n41
Symbol transformation occurs when
one signal (self-censorship) fails to expose cheaters, perhaps because of
exogenous changes in payoffs, resulting in the substitution to or the addition
of another signal (discrimination against homosexuals). The irony is that if
any American citizens posed a threat to the United States in the 1950s, it is
more likely that communists and other political critics did than homosexuals,
and yet discrimination against homosexuals proved to be a far more powerful
equilibrium than discrimination against communists. The reason is probably that
this country's traditions prior to the 1960s supported political freedom and
religious conformity much more than sexual freedom, so self-censorship was a
less reliable indication of patriotism--indeed, could be interpreted as a
failure of patriotism--than discrimination against homosexuals.
B. Normative Implications
When a law generates a new
signaling equilibrium, one evaluates the law by comparing the new equilibrium
with the old equilibrium. In doing so, [*792]
one should take account of both the behavioral and hermeneutic effects of the
law.
1. The Behavioral Effect.
It is well known that signaling equilibria cannot be
ranked according to their contribution to social welfare without information
about the costs and benefits of each kind of equilibrium. A separating
equilibrium might at first appear to be superior to a pooling equilibrium
because information is revealed, and information is often valuable; but it is
possible that the gains from information disclosure in a given separating
equilibrium are less than the costs of signaling. It is also possible that an
active pooling equilibrium is superior to the separating equilibrium, since revelation
of information may reduce incentives to generate value. n42 Because one cannot
generalize about the costs and benefits of each kind of equilibrium with any
accuracy, I have resisted making conclusions about the overall welfare gains
from converting one equilibrium into another.
Still, we can draw three useful
generalizations. First, there is a tension between the motive that causes a
person to take an action and that action's contribution to a public good; and
there is a tension between two kinds of public goods produced by an action--the
revelation of information, on the one hand, and the production of some other
public good, on the other. For example, a person may vote or engage in
self-censorship from the motive of signaling his cooperativeness or patriotism.
Voting, happily, produces an external public good (revelation of
political preferences); self-censorship produces an external public bad
concealment of political preferences). Both kinds of action produce an internal
public good, namely, the exposure of cheaters. But even here the cost of
signaling may exceed the benefits of that information. There is nothing
intrinsically socially beneficial about signaling: sometimes it is beneficial,
sometimes it is not.
Second, signals are crude, and even equilibria that
might be considered broadly socially beneficial result in some undesirable
behavior. Some politically uninformed people vote to avoid reputational
sanctions. It would be more desirable if they followed their nonreputational preferences and did not vote. When
self-censorship equilibria arise, political stability
is established, and this may be important in times of war, but cooperators with
valid criticisms of the government will be silenced along with the cheaters.
Third, when signaling equilibria are beneficial, we can expect them to occur too
rarely. The reason is that a signal is a public good. (This is not true in
standard signaling models, but they do not account for the ambiguity of actions
that may serve as signals.) To be established, everyone has to recognize that
certain actions are cheaper for some types than for others; [*793]
but because the benefits of the signal are enjoyed by everyone, whereas the
costs of making this connection are born by a few (the norm entrepreneurs, the
gossips), there will be too few kinds of signals that are available for use. n43 For similar reasons, harmful equilibria
occur more rarely than they would if signals were not produced through
collective efforts.
2. The Hermeneutic Effect: The
Creation of Social Meaning and the Problem of Reification. When the law
changes a separating equilibrium into an active pooling equilibrium, people
stop associating the signal with cooperativeness or patriotism and instead
associate the signal with not-being-a-cheater. If we care about the
"social meaning" of the action that serves as a signal, this result
may be undesirable. This is the difference between putting an American flag on
your house in an American suburb and raising it in a hostile foreign country, or
the difference between criticism of the authorities in a democracy and
criticism of the authorities in a dictatorship, or the difference between
wearing a pink triangle on a college campus in the 1990s and doing so in the
1970s or early 1980s. Because everyone or almost everyone issues the signal, it
no longer distinguishes some people from others. The "social meaning"
of an action, which can be defined as the belief that the average receiver has
about the type of person who engages in that action, n44 has become reified.
When the law changes a separating
equilibrium into a passive pooling equilibrium, the signal disappears. Veterans
of wars complain that people do not take the flag as seriously now as they used
to. Then, the signal, though reified, was not meaningless: few people failed to
salute the flag, but those who did fail to salute the flag were necessarily
cheaters, so those who did not were at least possibly cooperators. Now, in many
circles saluting the flag is almost meaningless. The observer assumes that the
person who salutes the flag is old-fashioned or even a
bit dotty--a person with strange tastes. When so few people issue a signal that
the observer no longer associates that signal with a particular type, the
social meaning has been destroyed.
When the state converts a passive
pooling equilibrium into a separating equilibrium, it produces social meaning.
An action that previously had little significance now has a great deal.
Saluting a piece of cloth displaying stars and stripes had no significance
prior to the Revolutionary War; later, it would have a great deal.
Discrimination against those who engage in homosexual behavior is seen
initially as a reaction to a practice believed to be [*794]
immoral; after state action it is seen as an expression of patriotism. A social
meaning is created. n45
But for all the emphasis of the
role of the state, social meanings can emerge and disappear spontaneously, and
often in the face of state efforts to regulate them. To see why, suppose at
time 1 there is a separating equilibrium, and cooperators salute the flag just
to show that they are cooperators. At time 2 the state enacts a law that
punishes people who fail to salute the flag. At time 3 there is an active
pooling equilibrium, created by the cheaters' desire to avoid the punishment.
But at time 3 saluting the flag is no longer a reliable signal of patriotism.
If many people salute the flag just to avoid the sanction, then those who
salute the flag are not necessarily cooperators; the salute becomes reified. In
the patriotism game, both types continue to salute the flag, the cooperators
fearing that if they fail to salute they will be mistaken for cheaters. But
over time many people, cooperators or not, will begin to recognize saluting the
flag as the empty ritual that it has become. Saluting the flag becomes an
embarrassment, because everyone knows that people salute the flag just to avoid
legal punishment. Some will conceal their embarrassment behind a mask of irony,
but under such conditions the meaning of the salute may eventually flip,
becoming instead a signal of fear of legal punishment rather than a signal of
patriotism. n46 The person who salutes is slavishly
obedient, fearful to offend the authorities or other people; the person who
declines to salute has integrity and independence--has an authentic cooperative
nature. Failing to salute the flag becomes a better signal of patriotism than
saluting the flag, and I believe that in some circles this is the case.
The politicization of
behavior occurs with the creation of a law that requires people to engage in
some behavior in which previously they had engaged voluntarily. People already
salute the flag or pray at ceremonies; then a law is created that requires
exactly the same behavior. At first sight, one would expect the law not to
affect behavior, perhaps even to intensify it. But the law may flip the signal,
so that the sender fears that others will [*795]
think that he engages in the behavior to comply with the law, rather than to
express patriotism or religious fervor. The result may or may not be that
people stop engaging in the behavior--that depends on the size of the sanctions
and other parameters. The important conclusion for present purposes is that
politicization destroys important social meanings by legally compelling
behavior that derives its meaning in part from the fact that it is not required
by law. This argument is an analogy to the argument that the commodification of goods and services through the
market destroys social meanings when a behavior derives its meaning from the
fact that it is given freely. n47
C. Endogenizing the State
Several recent articles argue
that the state has an important role in managing norms and social meanings.
Norms, social meanings, and similar phenomena create externalities that cannot
be bargained over. Because the market should thus be expected to undersupply
socially desirable norms and social meanings, the state should either supply
them itself or encourage their supply through legal incentives. n48
To see a problem with this
argument, suppose that everyone engages in self-censorship in order to avoid
being labeled a cheater. This active pooling equilibrium does not serve the
interest of most people, but every citizen is afraid to deviate. Now we might
say that here is a collective action problem that the government could solve:
for example, by subsidizing the publication of newspapers and journals, giving
politicians free air time, enacting special legal immunities against charges of
libel and slander, and granting other privileges and subsidies. The question is
why we should expect the government to engage in any of these actions. The
problem is not just that government officials may enjoy the lack of criticism.
The problem is that if the government officials proposed these laws, their
support for them would be taken as a signal that they are cheaters. Citizens
will not lobby the government to enact these laws, because they fear that their
lobbying--a violation of the self-censorship norm--would be taken as a signal
that they are cheaters. We cannot expect the government to change socially
undesirable social meanings when these meanings are sufficiently powerful.
These considerations return us to
the question raised at the start of this article: why do people seek laws
against flag burning when flag burning [*796]
causes no "real" harm? One answer is that citizens signal their
patriotism not only by engaging in patriotic activity but by lobbying or at
least passively showing support for laws that punish people who engage in
unpatriotic activity. The second follows from the first as a matter of logic,
and since the signal, political support, is still relatively cheap, an active
pooling equilibrium can result. Once support for a law against flag
burning is taken as a signal of one's patriotism, elected government officials
cannot afford the political consequences of opposing such a law, nor can legal
academics who hope for appointment to an important government position. n49
A problem with government-led
norm entrepreneurship is that it produces wasteful competition for government
resources. Competing groups treat the government as an instrument for conveying
their symbols. An important example concerns the placement of religious symbols
on public property. The problem is that observers understand that the symbol
represents the successful lobbying efforts of one religious group and thus that
this religious group has significant political influence. This inference causes
receivers to assume that members of the religious group exist in great numbers
or that they have great power--in either case, they are likely to be attractive
(or unavoidable) cooperative partners. Thus, attempts by members of the
majority to use discrimination against members of this group as a signal of
loyalty or patriotism will fail. It is thus in the interest of religious groups
to compete for influence over the government's decision to use religious
symbols. Constitutional restrictions on establishment deter wasteful competition
among religious groups over the use of the government as an instrument for
recruiting members through its endorsement of their beliefs. n50
The free exercise clause and equal protection rules, to some extent,
[*797] protect members of minority religions against the kind of
discrimination that would stimulate the pursuit of political power in the first
place.
V. CONCLUSION: SYMBOLS AND SOCIAL
NORMS
Because the term, "social
norm," is used in ordinary language to refer to many different kinds of
behavior, understanding social norms requires the use of different models in
different contexts. n51 In this article, I have argued
that an important class of social norms arises from signaling games in which
people choose actions that signal loyalty to states and communities. Because
people often engage in a particular behavior only in order to show that they
are loyal, that behavior has the peculiarly empty quality of a symbol: people
take little or no pleasure from the behavior, but engage in it for the sake of
reputation. Notice that the social norm is endogenous to the model: the social
norm describes the behavior that arises in equilibrium. It is not that X
punishes Y for violating a social norm; rather, X (and many other people)
avoids Y because Y's behavior reveals to X that association with Y will not
serve X's interests. Although in common speech we say that Y's behavior
violates a social norm, the punishment is endogenous, not imposed by an
external force. n52
The article contributes to the
literature on law and social norms in three ways. First, it incorporates
symbolic behavior in the general analysis. Second, it shows the ways in which a
signaling model sheds light on the relationship between laws and social norms.
The article argues that signaling is crucial to understanding social norms. The
main alternative, the repeat game model, can explain how cooperation is
possible, but it does not explain how patterned or norm-influenced behavior
arises. Most other discussions of social norms in the legal literature differ
in two important ways: by making exogenous assumptions about why people
cooperate, and by endogenizing preferences. n53 For reasons that should be clear, I claim that this
approach is backward. One can make a great deal of progress in explaining [*798] law and behavior without
resorting to arguments about preferences, which are notoriously difficult to
analyze. Third, the article shows several ways in which social norms can be
pathological or inefficient. n54
The latter point suggests, of
course, the possibility of desirable state intervention, but we have also seen
several reasons for skepticism about proposals to involve the state in
self-conscious efforts to "regulate" social meaning. First,
government officials do not stand outside the signaling game. They, like
citizens, are prisoners of symbols when the symbols are sufficiently powerful.
Truman and Eisenhower were powerless to resist McCarthy at his height, because
any effort to criticize McCarthy would have been interpreted as a signal of the
presidents' pusillanimity, even sympathy, toward
FOOTNOTES: n1 Kevin Sack, Symbols of Old South Feed a New
Bitterness, N.Y. Times,
n2 Nathaniel C. Nash, The New
Symbol of Germany: Faith in a Scrap of Paper, N.Y. Times, June 25, 1995; Philip
Shenon, Battling over a National Symbol: It's on the
Menu, N.Y. Times, July 10, 1995; Nicholas D. Kristof,
Japan's State Symbols: Now You See Them . . ., N.Y. Times, November 12, 1995.
n3 A
detailed discussion of this problem can be found in Michael J. Piore, Beyond Individualism, ch.
2 (1995).
n4 A. M. Spence, Market Signaling
(1974); Colin Camerer, Gifts as Economic Signals and
Social Symbols, 94 Am. J. Soc. S180 (1988); Benjamin Klein & Keith B. Leffler, The Role of Market Forces in Assuring Contractual
Performance, 89 J. Pol. Econ. 615
(1981); Wolfgang Pesendorfer, Design Innovation and
Fashion Cycles, 85 Am. Econ. Rev. 771 (1995); Laurie Simon Bagwell &
B. Douglas Bernheim, Veblen
Effects in a Theory of Conspicuous Consumption, 86 Am. Econ. Rev.
349 (1996).
n5 See
Eric A. Posner, Altruism, Status, and Trust in the Law of Gifts and Gratuitous
Promises, 1997
n6 The
model resembles advertising models. See, for example, Klein & Leffler, supra note 4; Paul Milgrom
& John Roberts, Price and Advertising Signals of Product Quality, 94 J. Pol. Econ. 796 (1986). Also
compare the model of symbols in Jack L. Carr & Janet Landa,
The Economics of Symbols, Clan Names, and Religions, 12 J. Legal Stud. 135 (1983).
n7 The
complications arise from the difficulty of arriving at satisfactory equilibrium
concepts. As an illustration, one could argue that the active pooling
equilibrium is not plausible. The cooperator would prefer to deviate if the
receiver would cooperate with those who deviate, because the cooperator would
then save the cost of the signal (earning $ 6 rather than $ 3). The receiver
might in fact believe that anyone who deviates would be 90 percent likely a
cooperator, because the cooperator and the cheater both do better by deviating
than by signaling, assuming the receiver would in fact cooperate with someone
who deviates, and given that both would do better, the receiver has no reason
to believe that only a cheater would deviate. If the receiver did believe that
anyone who deviates is 90 percent likely a cooperator, he would cooperate;
therefore, the cooperator would, anticipating this,
deviate. For a discussion of the equilibrium refinement used here, see Douglas
G. Baird, Robert H. Gertner, & Randal C. Picker,
Game Theory and the Law 255 (1994). If the cost from an unsuccessful deviation
is high enough, however, the cooperator might find unacceptable the risk that
the receiver would mistakenly reject him.
n8 See
Thomas Schelling, The Strategy of Conflict 57 (1960).
n9 The
term is from Cass R. Sunstein, Social Roles and Social Norms, 96 Colum. L. Rev. 903, 909 (1996).
n10 This
is cheap talk; see Joseph Farrell & Matthew Rabin, Cheap Talk, 10 J. Econ. Persp. 103 (1996).
n11 This approach is loosely
related to Pesendorfer's model, in which a designer
manufactures goods that will be used by consumers to signal status; the
designer's payoff results just from the fact that many consumers will want to
buy the goods, and some consumers will pay a premium for them, because their
exclusivity allows them to signal status. See Pesendorfer,
supra note 4.
n12 This
is analytically the same as changing the cost of the signal; only the interpretation
differs.
n13 A
brief overview of the McCarthy era can be found in McCarthyism (Thomas C.
Reeves ed., 3d ed. 1989).
n14 See,
for example, Pesendorfer, supra note 4; Camerer, supra note 4.
n15 A
further confusion arises because in a subcommunity
people signal their loyalty to each other by engaging in actions that violate
the dominant norms. Thus, a person may burn a flag in order to show other
critics of the government that he is deeply committed and a worthy ally.
n16 See
Susanne Lohmann, Information Aggregation through
Costly Political Action, 84 Am. Econ. Rev. 518 (1994); Eric Rasmusen, Lobbying When the Decisionmaker
Can Acquire Independent Information, 77 Pub. Choice
899 (1993).
n17
Glazer and Konrad argue that firms lobby for
protective regulations as a way of signaling to a potential entrant that they
have low marginal costs, thus deterring entry. Amihai Glazer & Kai A. Konrad, Strategic Lobbying by Potential Industry Entrants,
7 Econ. Pol. 167 (1995).
n18 See
B. Douglas Bernheim, A Theory of Conformity, 102 J. Pol. & Econ. 841 (1994).
n19 See
Section IVA.
n20
Another example comes from
n21 For
a different analysis of flag desecration issues, see Eric Rasmusen,
The Economics of Desecration: Flag Burning and Related Activities, 27 J. Legal
Stud. 245 (1988).
n22 See Timur Kuran, Private Truths,
Public Lies (1995).
n23 When
the relevant community is not the nation, but a smaller community, such as the
university or the small town, a similar result obtains. See, for example, Glenn
C. Loury, Self-Censorship in Public Discourse, 6
Rationality & Soc. 428 (1994).
n24 See
Donald P. Green & Ian Shapiro, Pathologies of Rational Choice Theory 70
(1994).
n25 See,
for example, Richard L. Hasen, Voting without Law? 144 U.
n26 See
Jan E. Leighley & Jonathan Nagler,
Individual and Systematic Influences on Turnout: Who Votes? 1984, 54 J. Pol. 718 (1992); Garey C. Durden & Patricia Gaynor, The
Rational Behavior Theory of Voting Participation: Evidence from the 1970 and
1982 Elections, 53 Pub. Choice 231 (1987).
n27 See Stephen Knack, Civic
Norms, Social Sanctions and Voter Turnout, 4 Rationality & Soc. 133, 143
(1992). In one poll 41 percent of regular voters agreed with the following
reason for voting: "My friends and relatives almost always vote and I'd
feel uncomfortable telling them I hadn't voted."
n28
Stanley Presser & Michael Traugott, Little White
Lies and Social Science Models, 56 Pub. Opinion Q. 77 (1992); see also Hasen, supra
note 25, at 2160-61.
n29 Hasen, supra note 25, at 2169-71.
n30 The
theory does not assume a "taste for discrimination" (Gary S. Becker,
The Economics of Discrimination (2d ed. 1973)), or that physical traits are
used as a proxy for unobservable characteristics (Kenneth J. Arrow, The Theory
of Discrimination, in Discrimination in Labor Markets (Orley
Ashenfelter & Albert Rees eds. 1973)).
n31 See
Eric A. Posner, The Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action, 63 U. Chi. L. Rev.
133 (1996).
n32
Compare Richard H. McAdams, Cooperation and Conflict: The Economics of Group
Status Production and Race Discrimination, 108 Harv.
L. Rev. 1003, 1039-40 (1995). He relies on an assumption that people seek
status, that is, they derive utility from being wealthier than other people.
The signaling theory does not make this assumption, instead relying on the
usual assumptions about preferences. Status, in this model, is endogenous: one
has status if one has the reputation for being a desirable cooperative partner.
n33 The theory is thus consistent
with the view that nations are "imagined communities"; see Benedict
Anderson, Imagined Communities (1983); and historiography that emphasizes the
contingency of the nation-state, for example, Eric J. Hobsbawm,
Nations and Nationalism since 1780 (1990).
n34 See
McAdams, supra note 32, at 1039-40; Timur Kuran, Ethnic Norms and Their Transformation through Reputational Cascades, in this issue, at 623.
n35 See
McAdams, supra note 32.
n36 The
politicization of race by political entrepreneurs is discussed in Jennifer Roback, Racism as Rent Seeking, 27 Econ. Inquiry
661 (1989).
n37 See
B. Netanyahu, The Origins of the Inquisition in Fifteenth Century Spain 1052-54
(1995). Netanyahu puts more emphasis on the interest of the majority in seizing
economic and political power from the Jews (in Spain, the conversos),
than on the importance of cooperating on a national level, but he does
elsewhere identify the demand for national unity in Spain as an important cause
of the persecution of the conversos. Id. at 1004. Spain united around its opposition to
the Jews; when religious Jews vanished, racial Jews
had to be invented.
n38
Compare Bernheim, supra note 18; Kuran, supra note 34.
n39 See
Sunstein, supra note 9, at 909.
n40 John
D'Emilio, Sexual Politics, Sexual Communities: The
Making of a Homosexual Minority in the United States, 1940-1970 (1983).
n41
n42 See Andreu Mas-Colell, Michael D. Whinston, & Jerry R. Green, Microeconomic Theory 455-57
(1995).
n43 See
Lawrence Lessig, The Regulation of Social Meaning, 62
U. Chi. L. Rev. 943 (1995).
n44
Compare id.
n45 The
creation of social meanings through spontaneous behavior on the part of the
masses, but guided and exploited by norm entrepreneurs, helps explain the
phenomenon of "invented traditions." The paradoxical connotation
arises because old behaviors provide focal points which people use to signal
their devotion to a new political entity. Wearing a kilt is distinctively
Scottish in the sense that people in no other nations wear a kilt; but it only
becomes a symbol of Scottish nationalism after later changes in social
conditions made possible a Scottish "community," through which
cooperative gains could be obtained. Then, norm entrepreneurs create further refinements
of the signal by, for example, elaborating (entirely fictionally) on the
connection between tartans and clans. See The Invention of Tradition (Eric J. Hobsbawm & Terence Ranger eds. 1983), especially
Trevor-Roper's chapter on Scottish traditions.
n46 Compare
Kuran, supra note 22.
n47
Compare Margaret Jane Radin, Market-Inalienability,
100 Harv. L. Rev. 1849 (1987).
n48 Lessig, supra note 43; Sunstein, supra note
9; Richard H. Pildes, The Unintended Cultural
Consequences of Public Policy: A Comment on the Symposium, 89 Mich. L. Rev. 936
(1991).
n49
These observations may be used to lay the foundation of a more general theory
of ideology, which would state the conditions under which people endorse (even
in great numbers) political positions that are contrary to their interests. The
germ of such a theory can be found in Kuran, supra
note 22; and Loury, supra note 23; and see
also Timur Kuran,
Preference Falsification, Policy Continuity and Collective Conservatism, 97
Econ. J. 642 (1987). But this must be the subject of future research. A brief
discussion can be found in Eric A. Posner, The Strategic Basis of Principled
Behavior: A Critique of the Incommensurability Thesis, 146 U.
n50 For
a general discussion, see Eric A. Posner, The Regulation of Religious Groups, 2
Legal Theory 33 (1996). Objections to certain forms of "expressive"
conduct by the government are thus derived from basic fears that such conduct
will lead to changes in beliefs of private citizens that will reduce one's
ability to enter into cooperative relationships. A person opposes legal
endorsements of the views of a particular group, even if this law does not
cause a direct injury to him, because the legal endorsement may stimulate a
shift in attitudes that will injure him. This motivation more likely lies
behind objections to race-based gerrymandering than general moral objections to
"value reductionism." See Richard H. Pildes
& Richard G. Niemi, Expressive Harms,
"Bizarre Districts," and Voting Rights: Evaluating Election-District
Appearances after Shaw v.
n51 For
a discussion of different possible models, see Eric A. Posner, Efficient Norms,
in The New Palgrave Dictionary of Economics and the
Law (Peter Newman ed. 1998), in press.
n52
Thus, one avoids the second-order prisoner's dilemma (see Jon Elster, The Cement of Society: A Study of Social Order,
132-33 (1989)) that results from the theory, rejected here, that social norms
are enforced by purposive collective action.
n53 For
example, Sunstein, supra note 9; Lessig, supra
note 43. See also Robert Cooter, Structural
Adjudication and the New Law Merchant: A Model of Decentralized Law, 14 Int'l
Rev. L. & Econ. 215 (1994); and Robert Cooter, Normative Failure Theory of Law, 82 Cornell L. Rev.
947 (1997), which combine an evolutionary theory of behavior and a theory of
internalization of norms. Another approach derives social norms from the
assumption that people desire status for its own sake. See Richard H. McAdams,
The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338 (1997);
see also Bernheim, supra note 18.
n54
Compare Eric A. Posner, Law, Economics, and Inefficient Norms, 144 U.