Feldman & Harel on Rules, Standards, and Social Norms

Yuval Feldman (Bar-Ilan, left) and Alon Harel (Hebrew University – Jerusalem, below right) have posted Social Norms and Ambiguity of Legal Norms:  An Experimental Analysis of the Rule v. Standard Dilemma on SSRN.  Here is the abstract:

The general belief is that social normsinfluence behavior. Yet the influence of social norms on thewillingness to obey legal norms depends to a large extent oncontingencies which have not been investigated. This paper explores twoparameters which influence the degree to which social norms influencethe willingness of individuals to conform to the law: the type ofsocial norms (positive or negative norms) and the type of legal norms(rules or standards). The paper explores the effects of these twoparameters on legal compliance. Our findings indicate that in theabsence of information concerning social norms, rules and standardshave similar effects on compliance. In contrast, rules and standardshave differential effects on compliance when they interact with socialnorms. Furthermore, our findings also indicate that negative socialnorms, namely social norms of disobedience, have greater effects on thewillingness to obey legal norms than social norms of obedience.

I think this is a fascinating subject.  I’m in the midst of presenting to a number of workshops my critique of the Delaware Chancery Court decision on disclaimers of promissory fraud in complex business transactions.  Fraud is standard-based and requires an ex post review of the facts and circumstances; contractual disclaimers are rule-based, in which one party ex ante attempts to cut off that very inquiry.  To put my argument into the context of this paper, narrow construction of disclaimers of truth-telling would make sense as against the strong social norms against lying, and that norm’s incorporation into the law as a standard.

[Jeff Lipshaw]