Can Laws Send the Right Message: Understanding the Assumptions and Costs Associated with Using Legal Expression as a Tool for Social Change

3.1 Assumption 1: Individuals Should Have Complete Legal Knowledge

When discussing the role of laws in providing focal points around which individuals can coordinate behaviors, McAdams in his book ‘The Expressive Powers of Laws’ considered two possibilities where laws can play a role. First, laws can help coordinate behaviors when there are no strong competing focal points. Second, even when there exists customs and traditions, laws can help clarify customs since there is always some ambiguity at the margins of an informal order.^[16] As he explains it – ‘There remains a degree of disequilibrium at the margin of informal order, a setting where expectations about behaviour are not perfectly aligned. In these situations, there is rule following behaviour but the rules being followed are partly ambiguous. A legal actor can influence the behaviour of the parties following the rule merely by announcing an unambiguous sub-rule, one that clarifies the ambiguous custom.’^[17]

This approach assumes that individuals have better knowledge of the law rather than the customs/behaviours of those around. Unfortunately, empirical evidence on the levels of legal knowledge indicate to the contrary. A study conducted in Germany in 2008 indicated that less than half the population was aware of the comprehensive workplace harassment policy that had been passed two years ago.^[18] Only 15 % knew of the policy while not being precisely sure about the content of it. Similar lack of legal awareness was found among consumers, tenants and married couples in UK and Welsh region about their rights under different laws.^[19] Van Rooji provides a comprehensive and updated review of empirical evidence on the issue which seems to confirm these findings.^[20] Most people don’t know the laws. And when they may know the law, they don’t always know the content of these laws.

In fact research indicates that when in doubt about what the law entails, people utilize the behaviours of those around them and prevalent norms to predict what the law is likely to say. Even individuals who said they were aware of sexual harassment in workplace laws in UK during a survey, for example, filled in details about what they believed qualifies as ‘sexual harassment’ under law utilizing what they believed in and observed in their workplaces.^[21] This implied that employees in workplaces with frequent, casual harassment were unlikely to consider these acts as legally prohibited. After all, not most of one’s colleagues could be criminals. Similarly, in India, women were surveyed about their opinion on what constitutes criminally punishable domestic violence.^[22] The higher the levels of violence in their own households and communities, the less likely they were to believe that these acts of violence would constitute criminal punishment. In a study conducted on the awareness about family laws in the US, similarly, individuals interpreted ‘parental responsibility’ based on their perceptions about gender roles, family relations etc.^[23] Multiple studies across different laws reinforce these findings – people utilize prevailing norms and their own beliefs to interpret and estimate what the law says rather than the other way around.^[24]

As such, this seems intuitive on different levels. First, if the aim is to socially anchor our behaviours, needless to say it is the behaviours of others which will act as direct and credible source of information on what is socially acceptable rather than a law, especially when it is being clearly violated around us. Law will act as informational proxy only when we have better knowledge of the law than what people are doing/saying. Second, it is hard for us to perceive people we work with, live with and are related to as criminals or acting against the law. People we associate with and our belief in their superiority is directly linked to our own self-esteem.^[25] So we have reasons to interpret legal obligations in ways in which our beliefs and those we associate with are confirmed rather than rejected by the legal code. Therefore, the claim that laws clarify customs cannot be assumed. In fact, more often than not, individuals are likely to utilize customs and popular beliefs to clarify laws due to, both, imperfect legal knowledge and our desire to believe ‘we’ are right.

3.2 Assumption 2: The ‘People’ Who Matter to Us Are a Homogenized ‘Whole’ Represented by the State

Another important assumption made is with respect to the people whose behaviours and attitudes are relevant to an individual. McAdams, for example, when discussing the sources of information we have to understand attitudes of people considered two sources – laws and public polls.^[26] Since polls are not as frequent or up to date, he concluded laws can be a better source of information. Though he did consider that laws at local levels will probably be more representative of social attitudes than federal laws.^[27]

This approach fails to take into account that individual’s social self is an aggregation of multiple identities.^[28] Our self-concept includes within it our identities as daughters, mothers, colleagues as well as our relationship with the chosen god(s), community, and the country among multiple other identities. Our identities also evolve over time and context. Additionally, not every source of information is relevant for every identity and at all times. This explains why in the previously mentioned survey conducted among UK employees, the behavior of the colleagues shaped the perception about acceptable workplace behavior or why level of acceptable violence for a woman in India is shaped by her family and community rather than the law. The relevant reference network for these behaviors is not an aggregate of all citizens of the country or even the state but one’s workplace (in case of laws on workplace behavior) or family (in case of laws on domestic violence).

Nadler, therefore, suggested that this provides a limit to legal expression. Behaviors embedded in one’s community or religious group identities is unlikely to evolve merely by enactment of a law because the state is not a credible source of information on what is socially acceptable behavior within these communities.^[29] It is unlikely to, for example, have any influence especially in cases such as female genital mutilations in African countries or dowry in India where the practices is prevalent within the communities and clearly contradicts the legally prescribed behavior. It is logical that when the legally prescribed behavior conflicts with the socially prescribed one, the law will no longer dictate what is socially acceptable for the community.

But considering the pervasiveness of these social identities, are there many domains in which laws can, then, play an expressive function? After all, our behavior at workplace will likely be informed by our colleagues. Our behavior in college and schools by our peers. Our familial roles will be shaped by our community. Yet, the reason advocates of legal expression overemphasize the potential role legal expression can play in evolving behaviors is because they presume that, at the very least, there is a common society level norm in favor of abiding by the law. In the frequently cited example of the regulation prohibiting in smoking places within the legal literature, the assumption is that the law will embolden at least a few non-smokers (who were already not appreciative of the practice) to vocally criticize and shame the smokers.^[30] In this case, smokers, non-smokers, and the bystanders should share the belief that not following the law is shameful. Similarly, Lessig explained how dueling in medieval France (already unpopular among people) could be avoided by men by citing the law prohibiting it without being accused of cowardice because abiding by the law was an acceptable explanation.^[31] In South Korean example, Storr and Choi correctly recognized that people could abandon the norm of offering expensive gifts to schoolteachers, public officials, business clients etc. when the ant-graft law was enacted because rule of law expectations are strong in that society.^[32] People, both, expect others to follow the law and believe it should be followed. This allowed them to abandon the tradition without fear of repercussions.

However, prevalence of this law-abiding norm cannot be presumed. This is true especially in institutional settings where non-compliance is widespread. Evidence on legal cynicism from marginalized neighborhoods in Europe and United States as well as literature from the Global South indicates that the relationship with the state can be so strenuous in certain institutional contexts that the prevalent norm may, in fact, be to not comply with laws. Ghanian people, for example, in a survey said they support private vigilantism over state involvement to address inter-personal disputes.^[33] Research from other countries such as Trindade and Tobago, El Salvador and China also support this lack of normative obligation to comply with laws.^[34] People in three neighborhoods in Philadelphia, similarly, reported lack of trust in legal systems or any normative obligation to comply with laws in general.^[35] Other researchers have corroborated these findings in marginalized communities which have had historically complex relationship with the formal state.^[36] In such institutional settings, shaming someone for ‘not following the law’ is unlikely to yield much response. In fact, in most likelihood, even people who do support the legally prescribed behavior are unlikely to reveal their preference if it contradicts the prevalent behavior. Therefore, people will neither presume that others will follow the law or expect them to follow the law.

As the preceding section highlights, it is more likely that people we identify with and what they believe is the law shapes our belief about the law rather than the law shaping our belief about what is socially acceptable behavior. However, there can be a limited context in which laws can create change through legal expression. It can happen when – there is no clear customary practice on the issue embedded in our social identities, the legally prescribed behavior is unambiguous (so there is no scope for interpretation) and, finally, there is an expectation in favor of legal compliance. When these conditions are fulfilled, as in the case of the first lockdown in France, people can utilize the law to determine what is socially acceptable behavior.^[37] However, the limited scope of legal expression can be understood from the fact that even in the same country by the time the second set of restrictions were announced, there was more non-compliance and attempts at resisting the legal restrictions.^[38] A matter of months were sufficient to create behavioral expectations that need not rely on laws to inform the French people about what is ‘socially acceptable’ during the COVID pandemic.

But then, one might argue what is the harm in trying to utilize the power of legal expression to create change. If there is legislative intent, and there is a clearly harmful social practice, why can’t we enact the law? And the usual criticism against legislation, that enforcement wastes state resources, cannot be leveled against those advocating for change through legal expression. After all, the aim is to create social and behavioral change through mere expression rather than formal enforcement. In the next section, the article provides two costs of indiscriminate use of legal expression that undermine future interactions with law which have so far been overlooked in discussions on legal expression.

4.1 Over-Utilization of Legal Expression Can Create Perceptions in Favor of Future Non-Compliance

The power of legal expression rests in our expectations about how others will respond to laws. Widespread compliance with laws communicates to us that compliance is socially desirable, as well as acts as informational proxy about the costs associated with non-compliance. It affects both our estimation of formal costs and informal costs of non-compliance. Kahan, Kelling and others, for example, have highlighted how evidence of visible orderliness made individuals believe that non-compliance must be both easily detected and severely sanctioned.^[39] This led to many policing reforms aimed at ‘visibly enforcing laws’ to create a perception in favor of compliance. Within the legal expression explanation, as well, widespread compliance communicates to individuals that non-compliance is not socially tolerated. Initial compliance by few, as a result, can create compliance cascades and have multiplying effects across different laws through these informational influences.^[40] Unfortunately, all these system-level positive externalities from compliance also implies that there are similar and opposite system level negative externalities from widespread non-compliance. Widespread and visible non-compliance in the past sets expectations that future laws are also unlikely to be complied with or enforced.

Legal expression has been credited with shaping socially acceptable behavior in Japan and France, as cited previously in this article as well. But it is important to consider how varying the underlying institutional expectations can also lead to the absolute opposite effect. When the Liberian government first announced health regulations to protect against Ebola, most people presumed that the disease was a hoax created by the government to obtain more money from international organizations.^[41] When intermediaries from the community were hired to spread awareness, they needed to build some trust and their quality of life was suspiciously monitored (to ensure they weren’t getting a ‘cut’ from the government) by the community members before their message was finally trusted.^[42] The presumption that law communicates any information about socially acceptable behavior and/or risks associate with certain behaviors, therefore, relies on multiple past experiences where this expectation has been reinforced. The more laws on the books that never translate to real outcomes, the less likely we are to take future laws and their intended message seriously.

Another interesting study that demonstrates the effect of the past experiences with compliance in what future laws can communicate comes from South America. The study analyzed how local and foreign companies responded to improved IPR legislations in 19 South American countries.^[43] They found that foreign companies rather than domestic ones were more proactively filing for patents. The hypothesis that the researchers forwarded was that these foreign companies presumed compliance and enforceability of these legislation whereas domestic economic players needed more proof to convince that these laws will, in fact, work.^[44] Their different perceptions come from their different lived experience with laws and interaction with the state. It shaped how they interact with the law and how effective they presumed laws were likely to be.

Legal expression when used indiscriminately, therefore, can create unfavourable perceptions about both the capacity and intent of the state to enforce the law as well as the intent of the people to comply with it. Unsuccessful legal expression, therefore, undermines the probability that other laws in the future will have any expressive powers in two important ways. First, by reducing the general assumption that others will adhere to laws and that the state seriously enforces laws failed, it leads to limited early compliers for future laws. As in the case with the IPR laws in South America, most people will want to wait and see how effectively the laws will be enforced or complied before deciding their own response. This implies that traditional enforcement mechanisms will need to be in place to create the initial compliance necessary. Second, when non-compliance is common place then shaming for not complying with a law is not as effective a tool for future laws. Therefore, legal expression is unlikely to have much effect in future. Even if there was some preference falsification against a custom and/or there were some people willing to adopt the legally prescribed behaviour, they may not be able to trigger a shift away from the customary behaviour. After all, shaming for legal non-compliance is not potent in a society where most people are non-compliers on some issue or another. This could explain why, for example, the previously discussed law criminalizing gifts in South Korea was readily adopted by people who did not enjoy having to offer such expensive gifts. But families of daughters have not been able to utilize the laws criminalizing dowry (gift-giving by daughter’s family to groom’s family) in India despite the fact that it imposes considerable cost on them.^[45]

Another indirect but important cost of multiple selectively enforced legislations can be towards the individual’s relationship with the state and what it communicates about the power of the state agents. This is so because multiple legislations on paper with limited compliance also creates greater scope of misuse and corruption by state officials, especially in countries with weak of Rule of Law.^[46] After all, if most people can be prosecuted for some offence/non-compliance, it gives immense discretion to the state agents about who they selectively enforce the law against.^[47] And the more discretionary and random the use of power by government, the more strenuous one’s citizen identity and their relationship with state becomes. This, in turn, further diminishes the law-abiding citizen identity and any associated obligation to comply with the law that may have existed. Therefore, indiscriminate use of legal expression in institutional contexts where the conditions don’t pre-exist are not only useless but will further exacerbate the unconducive institutional conditions.

4.2 Shaming People and Those We Associate with Can Inform Us that Non-Compliance is Rampant and/or Alienate Us from Our Citizen Identity

Legal expression and its capacity to create change relies on how law is animated and used by the citizens. It depends, therefore, on community members proactively enforcing law against one another. Therefore, legal expression to successfully change behavior requires people to voluntarily comply with the law or, even when they don’t agree, to comply with it out of fear of social sanctions or shaming. This informal enforcement mechanism that legal expression relies on also provides the limit of its use in creating behavioral and attitudinal change in the long run. This is so because ‘shame’ as a tool also has two additional consequences on the conditions in which individuals interact with laws. First, the process of shaming through publicizing offenders can, inadvertently, give the impression that non-compliance is rampant and acceptable. Second, shaming can have an alienating effect and undermine individual’s citizen identity in the long run.

Many studies on corruption, for example, indicate that our beliefs on how common corruption is more influential in deciding how likely we are to commit corruption rather than the law itself.^[48] Publicizing the corruption in this case could feed into the individual’s perception about how common it is rather than deter corruption. In fact, it could encourage corruption by some who had been hence far refraining from it. One policy experiment where publicizing other people’s behavior had this counter effect was when electricity bills in certain neighborhoods tried to publish average household consumption of the neighborhood.^[49] Informing people of their neighbors’ electricity consumption resulted in those consuming more than average to reduce their consumption. But it also made those consuming less to increase their consumption and bring it closer to average.^[50] In this study, the aim was to publicize ‘socially acceptable levels’ of consumption to shame/guilt those consuming more to reduce their consumption. But in the process, it also encouraged those consuming less to increase their consumption without worry. The authors referred to this phenomenon as the boomerang effect.^[51]

There is a similar risk of a boomerang effect when wrongdoers are constantly publicized since this information can be considered as a descriptive norm of what is acceptable in the society rather than be treated as offence to avoid.^[52] This can create a norm of tolerance in favor of offences and non-compliance.^[53] This is problematic because individuals may continue to believe law-abiding behavior is desired and continue not to abide by it. The way they cope with the dissonance in their behavior and attitude is simply by relying on evidence that others are doing the same.^[54] Corruption research, again, provides the most interesting example here where almost all surveyed people in societies rampant with corruption agree that corruption is, of course, bad and yet the practice is common.^[55] If in the long run, this perception extends to a system level perception i.e., we believe that in general laws are not followed by most, it can undermine the potential of any future law from sending any message whatsoever.

At its most extreme, constant and over-utilizing of shame as a tool can also have an alienating and counterproductive response. If individuals (and groups) are constantly shamed, individuals will try to reduce the psychological discomfort caused by such rejection through disassociation of this identity from their self-concept.^[56] This is, often, witnessed in cases of teenagers and young adults who are frequently stigmatized in school and legal systems.^[57] Of course, for others, it creates an incentive to avoid being shamed. But once shamed consistently and constantly, there is a sense of rejection and individuals will feel the need to isolate their self-concept from this identity to reduce it.^[58] Labelling and shaming can, therefore, have a self-fulfilling impact on the individual’s behavior. They may isolate themselves from the law-abiding citizen identity and, in fact, become delinquent even in their future interactions with the law. Policy researcher in public health management often warn against policies which stigmatize people who are obese or smoke, for example, since it has shown that this aggravates the issue rather than address it.^[59] Van Erp, when reviewing the empirical evidence on regulatory use of ‘naming and shaming’, concluded that the unpredictability of how shaming will affect individual’s response to a law makes it too risky a regulatory tool.^[60]

Legal expression successfully utilizing shaming to send a message, therefore, can have three different outcomes. First, it can make individuals comply with the law to avoid being shamed about it. Second, constant shaming of our peers can inform us that we can, in fact, not comply with the law because clearly no one else is complying. Third, it can make us reject the idea that complying with law is crucial to our self-esteem. The first of these three outcomes is, often, emphasized by proponents of legal expression as an explanation for how legal expression can influence behavioral change while the others are not adequately explored.