Richard Epstein argues that the gap between social practices and legal enforcement is not always a bad thing, and that we should avoid legal norms when they cause more mischief than they cure. At this level of generality, how could anyone disagree? Law is a blunt, expensive instrument wielded by imperfect human beings. The proliferation of legal rules and regulations can never keep pace with the variety of circumstances and may come to strangle the very individual and social goods it seeks to protect. The hard work is to specify, with some useful degree of precision, the conditions under which these disadvantages become decisive objections to the legal enforcement of norms.

        As a communitarian, I have no difficulty accepting the proposition that it is often better to rely on the force of society's moral voice than on the official coercive mechanisms of the law. But we must be clear about how this social enforcement operates. Epstein seems to suggest that social norms are sustained by equilibrating mechanisms in which the consequences of norm violation automatically rebound to the disadvantage of the violator. (For example, a firm that unjustly fires a single worker risks demoralizing its entire workforce.) But there are many circumstances in which norms are not backed by self-executing sanctions.

        As it happens, it snowed last night. This morning I shoveled the sidewalk in front of my house. I am unaware of any city ordinance requiring me to do so. (Anyway, what difference would it make? I live in the District of Columbia, where it seems only parking laws are enforced.) Nor am I moved by fear (though maybe I should be) that someone will slip and sue me. The point is rather that my neighbors were out shovelling their walks, and I felt impelled to do likewise -- to do my fair share to create a block along which pedestrians can make their way with relative ease. To some extent that is hard to gauge, I have internalized the fair share norm. As well, I experience a vague fear that my neighbors will think worse of me if I fail to do my part. This combination of principle and sentiment suffices to produce the socially desirable action. The sum of these actions generates a social practice that -- in this case, in my neighborhood -- doesn't have to be backed by social enforcement.

        But what if it did? Epstein asserts that legal sanctions are always more expensive than social sanctions. Measured simply in dollars, this is probably true. But Epstein is silent about the nonmonetary costs of social enforcement, which are very real and may loom large enough to induce us to turn to the law.

        To begin with, in social enforcement an individual or group must directly and personally confront the wrongdoers. Such confrontations may well be experienced as highly distasteful, and not just by individuals on the receiving end.

        In addition, strategies of social enforcement typically lack procedural safeguards. Individuals who are condemned or ostracized unfairly may have no effective recourse. Whether the accusations are fair or unfair, they can easily breed resentment and lead to cycles of retaliatory escalation that impose further strains on the enforcers.

        Finally, as Epstein recognizes, the effectiveness of social enforcement rests largely on the existence of "close knit" communities from which opportunities for exit are limited and costly. Not infrequently, such communities are mixed blessings: the price of membership can be a significant restraint on privacy and liberty.

        Still, Epstein's observation provides the basis for an important insight: Legal enforcement may be the only realistic option when the civil conditions for social enforcement have broken down. If communities are not close-knit -- if neighbors do not know or trust one another, if individuals do not care what others think about their conduct -- then it may be necessary to resort to the law, even when public institutions are themselves mistrusted.

        Legal enforcement may also be necessary when social norms improperly shield certain forms of conduct from scrutiny and redress. An important example of this is spouse abuse. Few individuals ever suggested that this behavior was morally permissible or good. But whatever the intention, insisting that it be dealt with privately rather than legally had the effect of allowing more of it to go unchecked than would otherwise have been the case. I do not want to suggest that social norms are of no account in such matters. Jean Elshtain has recently described how the small town in which she grew up intervened successfully against a wife-beater. But in the aggregate, it seems fair to say, such social tactics did not suffice.

        Another case arises when local norms conflict with the principles of the larger political community. There are circumstances in which the larger community should accommodate such norms. In the famous case of Wisconsin v. Yoder, the Supreme Court allowed the practices of the Old Order Amish to trump the mandatory school attendance laws of the state -- and rightly so, in my view. But there are cases in which such accommodation of local norms is clearly wrong -- for example, when communities are denying certain individuals or groups the basic rights and privileges of American citizenship. It was possible to argue -- and many did -- that legal coercion to uproot racial segregation was doomed to fail, or could only succeed at inordinate costs. History refuted these claims.

        What should happen when the weakening of certain social norms damages the entire society? Epstein raises the pertinent examples of divorce and out-of-wedlock births: most analysts believe that reduced social disapproval has contributed to the rising incidence of these phenomena. One possible response is resignation: law at best mirrors, but cannot lead, social and cultural change. Another response -- the one I favor -- is activism: if (as many believe) the costs of divorce and out of wedlock births for children and for society are very great, then it is worthwhile to experiment with legal changes of incentive structures that might alter behavior.

        On one level, it is hard to fault Epstein's insistence that we examine the costs of law as an instrument of enforcement. But in many circumstances law is more than a means. It is meant to express the considered moral judgment of the community. A fair opportunity to work, to earn a living, to support oneself and one's family is -- as the late Judith Shklar reminded us -- one of the core elements of American citizenship. From this perspective, I would suggest, it is appropriate that we have laws against employment discrimination. Even if, as Epstein asserts, unjust dismissal "leaves the worker free to seek employment elsewhere" and imposes a reputational penalty on the discriminatory employer, throwing the force of the law against core injustice is the right thing to do. This is all the more true if we cannot fully share Epstein's confidence in the capacity of social and market mechanisms to cure injustice in the absence of the law.
 

Professor William A. Galston teaches in the School of Public Affairs at the University of Maryland at College Park.