By Akash Pandey :
There is a relationship between the law and social norms. “Law” can be simply defined as rules that are authoritative and enforceable in nature and creates a severe prospect of sanctions being imposed for non- compliance. “Norms” can be explained as standards of proper or acceptable behaviour and in simple terms is what the majority portion of society deems as “normal”. At a first glance there seems to be little or no relationship between the two terms but therein lies a deep relationship between the two, as almost till the point of both being dependent on each other. Moving on to the term “Social Norms”, “Social Norms” describe the behavioural regularities that occur in equilibrium when people use signals to show that they belong to the good type. Social norms are thus endogenous: they do not cause behaviour, but are the labels that we attach to behaviour that results from other factors. For example, in a merchant community the exchange of gifts on holidays reflects a social norm. Breaking this definition we can say that social norms are simply norms that originate within the society itself and people do not want to change in order to prove that they are the “good folks” of the society. Who are the good citizens of the society, this question is debatable but in essence those who respect the traditions, conventions, customs and the social norms can be called as good citizen based on the abovementioned criteria. These “Social Norms” can lead to establishment of conventions and those conventions can lead to creation of customs.
Customs often influences the law. Directly it affects the law when the law is itself giving authority to a custom, wherein the law itself is codifying a custom or a tradition. For example, it is a broad principle of property law that, if something has gone on for a long time without objection, whether it be using a right of way or occupying land to which one has no title, the law will eventually recognise the fact and give the person doing it the legal right to continue. This rule is based on customary law and has been going on since time immemorial and hence, has been codified later. But, even when a custom directly does not result in codification of a law often the law makers haw to take the customs, traditions and social norms into consideration while framing a law especially when the law is affecting religious sentiments or the social stigmas. In a more recent debate relating to the sanctity of gay marriages and whether it should be legalised or not, many countries throughout the world has opted to ban them on the grounds that they are in contradiction of religious doctrines and are breaking social stigmas. The law makers have not codified such a law in many cases but it can be seen through judgements of the courts and the workings or conducts of the officials and the government. It was long the received theory of English law that whatever was not the product of legislation had its source in custom. Lex et consuetude Angilae was the familiar title of the English legal system. The common law of the realm and the common custom of the realm were synonymous expressions. In the words of Blackstone, “The municipal law of England… may with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten or common law; and the lex scripta, the written or statute law. The lex non scipta, or unwritten law, includes not only general customs, or the common law properly so called, but also the particular customs of the certain parts of the kingdom; and likewise those particular laws that are by custom observed only in certain courts and jurisdictions”. Thus it is evident that even one of oldest legal system also relies on the customs. This may be considered as veering off topic, but in reality customs are only based on conventions and conventions rely on social norms. Customs are norms that have been followed through time by a large portion of the population. But, even if a social norm is not a custom it can take form of laws. It is evident in some of the infamous cases of racial discrimination where the one race discriminates against the other with the authority of the law but it is not necessary that such discrimination has been going on for a long time. During the Nazi Germany the law and the officials discriminated against the Jews. Everybody knows about it but this discrimination was not a very old custom and certainly wasn’t part of the law. The Jews even served in the German Army in The Great War and with distinctions but when they were ostracised it was very swift. We can argue here that Jews were scoffed even before the World War I but the government or the law never discriminated against them earlier. This shows that social norms can sometimes result in laws that result in dystopia. Even so, social norms are important while drafting new legislations. Modern social welfare and bankruptcy legislation was intended to eliminate the stigma against people who are poor and cannot pay their debts, and against aliens and illegitimate children, yet earlier versions of this legislation were intended to strengthen the stigma. Expungement laws, which erase criminal convictions from offenders’ records, reduce the stigma of the ex-convict.
Even in the novel Chronicle of a Death Foretold we see how social norms can affect laws. Though here the norms do not result in creation of a codified law but show us how laws can be used or abused or in this case give leeway to people in order to adhere to the social norms. Honour plays a very important role in the novel. Here, honour is the result of social norms that brothers shall protect the virtue of their sister and it is alright to kill in order to protect their honour. The murder itself is committed in order to gain back the honour that Angela lost when she had premarital sex, and the honour that was lost to the family with her sex and then failed marriage. Most people in the society tend to think that disputes over honour are better left to those involved; even the jury in the Vicario twins’ case find them innocent, because they killed Santiago to win back Angela’s honour. Though in the novel it is hard to prove that Santiago was guilty, he might have very well been victim, he was killed for taking Angela’s virginity, an act he likely did not commit. And it is not just the actions of two Vicario brothers but the collective deviance of the whole village. According to universal legal standards, whether as actors, instigators, accessories or through having failed to where there was a duty to do so they have all contravened the homicide provisions of penal law. But, nobody except for a few did anything to prevent the murder because the social norms did not allow them to. Subsequently no one was also charged with homicide charges. It is also seen that the Vicario family had to leave town as they were disgraced. They were disgraced as the social norms were against the pre-marital sex. The law does not come into the picture here and does not uphold the rights of Angela as that would be in contravention to the social-norms.
It is important to understand the relationship between the law and the social norms. Every day courts must evaluate the stigmatizing effect of an action, the conformity of behaviour with social norms, the meaning of symbols, and the consequences of ostracism. Symbolism and stigma play a role in every major piece of legislation. Flag desecration bills are designed to rebut the symbolism of destroying flags. And debates over issues as diverse as the sale of organs, surrogate motherhood, and legalization prostitution, cost-benefit analysis, and pornography invariably raise questions about the symbolism of the practice in question and the use of law to control it. Even in a world with no law and rudimentary government, order of some sort would exist. The order would appear as routine compliance with social norms and the collective infliction of sanctions on those who violate them, including stigmatization of the deviant and ostracism of the incorrigible. People would make symbolic commitments to the community in order to avoid suspicions about their loyalty. Also, people would cooperate frequently. We have a natural tendency to adhere to the social norms in order to show others that we are good citizens.