Description:
The title of this paper is taken from the "signaling" model of social norms developed by Eric Posner in his book, Law and Social Norms. Posner's book is interesting, not because it is the best theoretical account of social norms, but because it is an object demonstration of a fundamental paradox confronting law-and-economics theories: If they remain true to their methodological commitments, such as the assumption that people are purely self-interested utility maximizers, they fail to provide an adequate account of human behavior. If, on the other hand, they relax these strictures, they threaten the distinctiveness of the rational-choice approach, which has been the key to the tremendous popularity law-and-economics in the legal academy. The Posner book is a point of departure for my argument, because I think it nicely illustrates the predicament for the law and economics movement, which is currently riven with internal disagreement about the extent to which theoretical assumptions should move beyond the austere presuppositions of neoclassical rational-choice theory. There are, of course, competing theories of social norms, many offered by critics of law and economics. Proponents of these theories have been slinging epithets back and forth for a long time, as Robert Ellickson has observed: "To exaggerate only a little, the law-and-economics scholars believe that the law-and-society group is deficient in both sophistication and rigor, and the law-and-society scholars believe that the law-and-economics theorists are not only out of touch with reality but also short on humanity." My ambition is to get beyond the name-calling by working at the level of metatheory - that is, by setting forth standards that an adequate theory of social norms must satisfy. In light of the continuing importance of social norms to legal theory (as evidenced by the tremendous outpouring of scholarship on this subject), it is essential to engage directly with these metatheoretical questions. The thesis of this article is that criteria of theory acceptance, for interdisciplinary scholarship that is intended to be relevant to the law, are generated by jurisprudential considerations. In other words, we can discover the nature of the explanatory terms that must be employed in a theory of social norms by looking to the nature of the normative concepts that are essential to justifying legal rules. If economic rationality is the only thing that matters in law (as Louis Kaplow and Steven Shavell have recently asserted), then a theory of social norms that employs only the economic conception of rationality is a plausible one. If, on the other hand, a theory of law must take into account other normative concepts like fairness, equality, human dignity, respect for environmental values, and so on, then a theory of social norms must similarly build in these explanatory concepts. This paper uses tools of conceptual analysis, from the philosophy of natural and social sciences, to critique the "inference to the best explanation" argument offered by rational-choice theorists of social norms and their critics