Norm Supercompliance and the Status of Soft Law

Abstract

Recent empirical research, including my own, has exposed a previously overlooked behavior: instances in which people constrain themselves from doing something that they want to do because they believe a norm obligates them to do so, even though the norm in question does not, on a straightforward reading, contain such an obligation. I label this phenomenon “Norm Supercompliance.” Simply put, Supercompliers treat soft norms as if they are hard norms. For example, one who grudgingly complies with an aspirational norm, such as “a lawyer should aspire to render at least 50 hours of pro bono service per year” on the belief that it states an obligation is a Supercomplier.

There is a vast literature in which authors assert that norms in legal contexts that possess certain weak or soft qualities — “soft laws” — do not deserve legal status because such norms fail to make a practical difference to the deliberation of those subject to them. This assertion unduly ignores or undervalues Supercompliance; as those engaging in it experience considerable changes in their decision-making when they follow soft law. While it is easy to write off Supercompliance as a self-defeating or masochistic mistake, it has the capacity to benefit those engaging in it, allowing them to reap the same rewards that come from accepting legal obligation under ordinary circumstances.

In this Article, I set forth the elements of Supercompliance in detail, provide examples from the empirical literature in which those elements have been satisfied, and discuss the theoretical and practical implications thereof. In particular, I focus on how the discovery of this behavior might weaken arguments in support of Exclusive Legal Positivism. Illuminating the value of Supercompliance and, in turn, soft law, will give legislators a better sense of the tools at their disposal that can bring about improved behavior. It will help them build better legal norms.

Keywords: soft law, empirical legal studies, international law, positivism, behavioral experimentation, Shapiro, Raz, Enoch, law and psychology, exclusive legal positivism, masochism, Mazar, Amir, Ariely, Pruckner, Sausgruber, norms, Moshirnia, Cushman, Schauer