Introduction

The connection between utilitarianism and the rational actor account of norms developed in the chapter is deep and fundamental. Utilitarianism has a completely instrumental theory of right action. Right action is simply that which maximizes the good. The utilitarian should take note of the fact that there are three structures of norms. Rational actors' conformity to these norms is evidence of their welfare-producing capabilities.

In general, utilitarians have paid little attention to the theory of norms. The discussion in Chapter One suggests a possible explanation. Utilitarians, like the social theorists discussed in Chapter One, have been distracted from a proper examination of norms by their focus on rule-based accounts. This chapter will examine the role that norms should properly play in utilitarianism, and more generally in any critical normative approach to law that gives a prominent role to weighing consequences.

Norms Versus Rules in Utilitarian Theory

For the utilitarian, the fundamental question for practical ethics is how best to maximize utility. Rules have been the answer most often given by utilitarians. The utility-maximizing society will be the one built on the best set of moral and social rules. I will argue that this is incorrect. Rather, the society that incorporates the best set of norms will be the utility-maximizing society.

Introduction

Over the past few years, the norms governing personal data interactions between consumers and websites have changed dramatically. There is an increasing moral sensitivity regarding the commercial collection and use of personal data. The social meaning of personal data collection has changed from a morally neutral to a morally charged status. Consumers now perceive a general right to privacy in cyberspace that includes respectful treatment of personal data. This change arose not by accident or necessity but from the intentional actions of actors possessing an interest in promoting online privacy. I will designate these actors as privacy norm proselytizers.

Social meanings attach to social norms; one method of changing social norms is to alter their social meanings. For example, changing the social meaning associated with smoking is one way to regulate cigarette smoking among teens. As long as smoking retains a cool and rebellious mystique, it will be difficult to eradicate the practice. Analogously, privacy norm proselytizers are in the process of changing the social meaning associated with websites' collection and use of personal data.

The set of normative concepts that increasingly surround the practice in popular discourse is evidence that consumers are developing a more complex normative understanding. Notably, interactions between websites and their visitors are increasingly framed in terms of privacy. Privacy is among the most potent normative concepts of the modern age. Proponents of personal data privacy have won a substantial victory now that data is widely understood to raise concerns for a new species of privacy: informational or data privacy.

Introduction

This chapter continues the examination of the role that social norms and customs play in tort law. The last chapter concluded with an examination of how customary easements have arisen in situations that might otherwise constitute a trespass, owing to the recognition of community norms of land use. The present chapter extends the analysis beyond the specific context of trespass to tort law generally. Custom's role in tort is pervasive. When people injure one another while conforming to social norms and customs, it is the duty of tort law to determine which of these injuries may merit legal redress.

Modern tort law mainly follows the negligence standard according to which one will be found liable for an injury only if one acted negligently in causing it. Leading early cases established the connection between negligence and “ordinary care” While ordinary care and due care are often used as synonymous terms in tort law, note the linguistic peculiarity of referring to ordinary care in a circumstance in which there is a lack of relevant customary activity.

Introduction

Chapters Two and Three discussed rational norms, which are norms conformed to by rational actors. Moral norms, by contrast, are norms conformed to by moral actors. Economists and game theorists typically assume that people are rational actors and moral theorists and sociologists typically assume that people are moral actors. While neither assumption is fully realistic, each can be useful and lead to interesting results.

Starting with a rational choice account is in keeping with the dominant thrust of the literature out of which the previous discussion grew, for generally the rational choice or economic approach has been the dominant framework theorists have applied to analyze the structure of norms. The narrowself-interest account is flawed, however, because it fails to account for the strong evidence of the reality of genuine moral motivation in the workings of social practices. Accepting the reality and potency of moral motivation does not, however, mean one must see these influences as dominant. The most interesting results come from combining the assumptions of rational and moral motivation.

Introduction

As set out in Part One, there are three distinct types of customs: epistemic customs, coordination customs, and sanction-driven customs. Epistemic customs solve nonstrategic, informational problems, while coordination customs and sanction-driven customs solve strategic problems of two different sorts.

The Prisoner's Dilemma, when iterated and solved by a social practice, is actually a subset of the broader category of sanction-driven customs and norms. A sanction-driven custom is maintained due to the existence and casual efficacy of sanctions. Along with Prisoner's Dilemma (hereinafter alternatively PD) games, games such as iterated Chicken or Ellickson's Specialized Labor Game may also be solved – or not – depending on the ability of participants to sanction one another effectively. Nearly all applications of informal game theory to law, to date, have focused on the Prisoner's Dilemma or collective action problem. One would naturally suppose that tort law would take an interest in PD-structured customs because tort law is concerned with injuries, and many PD customs present a situation in which a person is repeatedly in a position to cause injury to others, either by failing to conform to a safe PD custom or by conforming to a dangerous PD custom.

Although PD customs, and sanction-driven customs more generally, are indeed of great interest, it will be demonstrated that epistemic customs and coordination customs may be important sources of injuries as well, and so are equally of interest to tort law.

Introduction

In part due to the diversity of disciplinary approaches to the topic of norms, a number of definitions of the term norm circulate. This first chapter will defend what I will call the pattern conception of a norm. On this view, a norm is a pattern of rationally governed behavior, instantiated in a group, maintained by acts of conformity. In contrast, on the dominant conception, norms are inherently rulelike, that is, norms are statements that individuals and groups generate and promulgate to guide their conduct. I will refer to this as the rule conception or rule view. This chapter will argue that the rule conception is deficient and, in the end, beyond repair.

Because norms and customs are behavioral patterns and not linguistic rules, they have rational structures rather than grammatical structures. The next two chapters develop an account of these structures based on a Hobbesian assumption of narrow self-interest. Subsequently, Chapter Four develops an account based on a broader Humean conception of rationality, one that is consistent with the existence of genuinely moral motivation. This position is called predominant egoism. On this motivational assumption, moral norms may emerge as a result of norm conformity.

Finally, Chapter Five will examine the potential for norm maintenance based on the motivational assumptions of leading critical moral-theoretic approaches. In this manner, the chapters of Part One will successively layer moral theory on top of rational theory, going from the purely rational to the purely moral.

Introduction

Part One developed the pattern conception of social norms. Part Two will apply this framework in the context of tort law. This application will test the value of the pattern conception; the more it illuminates tort law, the more valuable it is proven to be. As discussed in the book's Introduction, tort law is at the core of a liberal theory of social order. Liberalism begins with a brute conception of the intrinsic moral worth of the individual. From this starting point, the theory of human rights and personal autonomy follow. Free people may do as they please, so long as others are not injured in the process. When others are injured, however, tort lawmay be implicated. As Part One indicated, free people characteristically choose to conform to social norms. When they do, and when others are injured in the process, meaningful solutions must take place at the intersection of norms and torts.

The present chapter begins the examination of the role of social norms in tort law. The focus in this chapter is on the historical development of the concept of legally valid custom, or what is sometimes referred to as the rule of custom.

Introduction

In this chapter, I will argue at length that a failure to properly characterize the jury norm effect leads the Third Restatement account of negligence astray. Apparently due to the bias of legal centralism, the Third Restatement assumes, without little by way of argument or evidence, the dominant causal efficacy of the Hand Test interpretation of the reasonable person standard on the deliberations of juries, and hence on the outcomes in negligence suits.

Based on the empirical support and analysis presented in Chapter Ten, I will argue to the contrary that there is good reason to suppose that juries do not engage in Hand Test normative processing but instead draw from their diverse array of everyday norms and customs when providing concrete substance to the abstract reasonable person standard in order to come to a decision on the issue of negligence.

Introduction

Varieties of moral acts fall into two main types: outcome-oriented moral acts and action-oriented moral acts. Outcome-oriented moral norms are constituted by outcome-oriented acts, and action-oriented norms are constituted by actionoriented moral acts. An outcome-oriented act is one that is taken to be right insofar as it is the best means to some desired consequences. An action-oriented act is taken to be right for some reason other than, or in conjunction with, its role in the production of desired consequences. Both deontological and virtuetheoretic behavior may be considered action-oriented. Outcome-oriented norms will be examined in Section I, and action-oriented noms will be examined in Section II.

Prima facie, it is puzzling how action-oriented moral behavior might lead to norms. Kantian reasoning is the paradigm of action-oriented behavior. The notion of conformity necessary for norms seems alien to Kantian thought. For the Kantian, when duty calls for one to act in some particular manner, the fact that others are not acting in this manner does not negate one's duty. Nor does the simple fact that others are acting in some particular manner provide one with reason to act in the same manner.

The book began with the observation that while social order may be regulated from above by the law, its foundation is built on norms and customs. The law's ability to promote a just and effective social order can never be fully understood without taking account of the concurrent influence of these informal social practices. In spite of this, as noted at the outset, much jurisprudential writing has been devoid of sustained discussion of norms and customs, focusing instead on individuals and governments. In concentrating on the small individual belowand the vast, looming state above, those intermediate objects of the social world – norms and customs – were long neglected by mainstream legal analysis.

The recent law and norms literature has begun to fill this gap. This emerging literature draws on important work emanating from the social sciences as well as from moral and political philosophy, and to a lesser extent from evolutionary biology and anthropology. Nearly all the new work by legal scholars utilizes rational choice methodology. The foregoing discussion also presented an analysis in the rational choice tradition albeit one that incorporated irreducible moral elements into the analysis. One of the underlying themes of the book was the compatibility of rational and moral analysis. The demonstration of this compatibility promises to be important in paving the way to an interdisciplinary norms account.

Chapter One defended what I referred to as the pattern conception of norms against the dominant rule conception. I argued that the traditional conception of norms as rulelike linguistic entities was faulty.

Introduction

In Chapter Seven, we saw that while courts nominally consider the evidentiary rule as the proper rule of custom in negligence cases, their actual treatment of customs is more complex. Courts sometimes give customs greater deference (by means of the per se rule) and other times give custom no deference (by means of the no-priority rule). The analysis in Chapter Eight demonstrated that each of the three types of rational custom has distinctive welfare-enhancing capabilities. Factors – such as whether the incidence of injury falls on conformers or third parties, whether these groups are close-knit, whether the conformer has superior epistemic warrant, whether the Kaldor-Hicks Test favors conformers, and whether an optimizing alternative practice is available – matter differentially depending on the type of custom at issue.

In this chapter, I will argue that in order to account adequately for the structured complexity of the relevant social phenomena, it will be necessary for courts to implement a more fine-grained rational actor account than is suggested by those game-theoretic accounts that focus on the Prisoner's Dilemma or collective action problem. In terms of the general analysis, thirty-seven distinct modalities of rational custom will be identified. In particular, the tripartite model of rational custom will be used to explicate the role of custom in the leading cases of Behymer and Hooper.

Introduction

As the previous two chapters indicated, the threat to personal privacy due to the ever-expanding flow of personal data online is the most significant pubic policy concern that has yet to be spawned by the Internet. In the past few years, however, websites are increasingly claiming to address this concern adequately. Privacy advocates have generally been unimpressed with these efforts by websites. Some commentators have claimed that the website industry's new data norms are pathetic and insincere attempts to address burgeoning privacy concerns. Jessica Litman states that industry self-regulation has been an “abject failure.” Whether the new website norms really do increase the supply of privacy is a contentious matter that will be addressed later. What is not contentious is that the website industry has responded to demands for greater online privacy with a new set of industry norms regarding the collection and use of consumer data. This chapter will seek to better understand what has motivated websites to adopt these new norms. This chapter completes the supply-and-demand model of the emergence of website privacy norms that was initiated in the last chapter. Chapter Thirteen considered the demand side of the equation, looking at the role that has been played by norm proselytizers and other norm entrepreneurs in stimulating consumers to demand online privacy with respect to their personal data.

Social order may be regulated from above by the law, but its foundation is built on norms and customs which combat social disarray, allowing people to make meaningful and productive uses of their time and resources. The law's ability to promote a just social order can never be fully understood without taking account of the concurrent influence of these informal social practices. In spite of this, much jurisprudential writing has been devoid of sustained discussion of norms and customs, focusing instead on individuals and governments. Individuals are thought to be the locus of moral responsibility and rational decision making, while governments are thought to be the source of legal obligations that form the institutional backdrop against which moral and rational behavior occur. In concentrating on the small individual below and the vast, looming state above, those mid-sized objects of the social world – norms and customs – have been neglected.

Recently, legal theorists have begun to pay attention to social norms. The newlegal literature draws on importantwork emanating from the social sciences as well as from moral and political philosophy, evolutionary biology, and anthropology. Nearly all the newwork by legal scholars utilizes rational choice methodology. This book also presents an analysis in the rational choice tradition albeit one that incorporates moral theory into the analysis as well. One of the underlying themes in this book is the compatibility of rational and moral analysis.

The present work seeks an equilibrium between theory and legal application.

Introduction

While Chapter One explicated the essential requirements for a norm, it did not explicitly appraise the rationality of the acts of conformity that make up the norms. This chapter does. The next step, taken in subsequent chapters, will be to make an appraisal of the morality of the acts of conformity making up moral norms. These analyses will then be integrated to better understand the role of norms and customs in particular real-world legal and policy debates.

On some accounts, the term rational norm is an oxymoron as the element of raw conformity necessary for norms to persist is thought to be in tension with the reflection and calculation necessary for rational action. In fact, however, many norms are best viewed as deep expressions of the heights to which our rationality may attain. Other norms do indeed appear to be hopelessly irrational.

The previous chapter argued that conformity is necessary for norms to exist. Norms are maintained in groups and societies because people conform to the behavior of other people. There is a difficulty with the notion of conformity, however. As it is often understood, conformity amounts to blind following or rote imitation of the behavior of others. Such a model of human behavior is clearly in tension with the rational choice model.

The Chicago sociologist James Coleman characterizes this tension in the following manner: “Especially for theories based on rational choice, invoking a norm to explain behavior constitutes an almost diametrically opposed approach.”