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Carbonara, Emanuela; Parisi, Francesco; von Wangenheim, Georg --- "Countervailing Norms" [2011] ELECD 1069; in Parisi, Francesco (ed), "Production of Legal Rules" (Edward Elgar Publishing, 2011)

Book Title: Production of Legal Rules

Editor(s): Parisi, Francesco

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848440326

Section: Chapter 11

Section Title: Countervailing Norms

Author(s): Carbonara, Emanuela; Parisi, Francesco; von Wangenheim, Georg

Number of pages: 20

Extract:

11 Countervailing norms
Emanuela Carbonara, Francesco Parisi and
Georg von Wangenheim



1. Introduction
There are some circumstances in which social norms counteract legal norms,
reduce their effect and even produce results that are opposite to those intended by
the lawmaker. In this sense, we say that social norms may be "countervailing".
Then, legal intervention that does not take into account existing social norms
may not only be ineffective but may even have a negative impact. For instance,
a law introducing a new sanction may either be less effective than expected or
even cause an increase in the sanctioned behavior.
Such results contradict the predictions of traditional law and economics
theories. According to such theories, the law is "an obligation backed by a
sanction" (Raz, 1980). Economic analysts characterize legal sanctions as a
price. Individuals consider sanctions as an external incentive and make decisions
regarding legally relevant behavior by means of standard cost and benefits
analysis. Alternatively, expressive-law theories argue that individuals tend to
internalize the obligations expressed by the law, so that legal norms become
social norms.
Both theories predict a unique outcome of lawmaking: stricter laws and larger
sanctions reduce the prevalence of the regulated behavior. Conversely, more
lenient laws and smaller sanctions increase its frequency.
Such a conclusion has recently been challenged by experimental evidence.
Gneezy and Rustichini (2000) tested the effects of the introduction of a fine
for latecomers on parents' behavior in several day-care centers. In a field
experiment, they found that the introduction ...