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Bringing Cultural Practice Into Law: Ritual and Social Norms Jurisprudence Andrew J Santa Clara Law Review Volume 43 | Number 2 Article 2 1-1-2003 Bringing Cultural Practice Into Law: Ritual and Social Norms Jurisprudence Andrew J. Cappel Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Andrew J. Cappel, Bringing Cultural Practice Into Law: Ritual and Social Norms Jurisprudence, 43 Santa Clara L. Rev. 389 (2003). Available at: http://digitalcommons.law.scu.edu/lawreview/vol43/iss2/2 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. BRINGING CULTURAL PRACTICE INTO LAW: RITUAL AND SOCIAL NORMS JURISPRUDENCE Andrew J. Cappel* I. INTRODUCTION The past decade has witnessed an explosive growth in legal scholarship dealing with the problem of informal social norms and their relationship to formal law.1 This article highlights a sa- * Associate Professor of Law, St. Thomas University Law School. J.D., Yale Law School; M.Phil., Yale University; B.A., Yale College. I would like to thank Bruce Ackerman and Stanley Fish, both of whom read prior versions of this paper, for their help and advice. I also wish to thank Robert Ellickson for his encourage- ment in this project. In addition, valuable suggestions were made by participants when a version of this paper was presented at the 2000 Law and Society conference in Miami. Among the many of my present and former colleagues at St. Thomas who have provided helpful critiques, I particularly wish to thank Jean Thomas, Beverly Horsburgh, Fred Light, Siegfried Wiessner, and Peter Margulies, with spe- cial thanks to former Dean Dan Morrissey for initially encouraging me to study the role of ritual in legal and informal legal practice. 1. See Robert C. Ellickson, Law and Economics Discovers Social Norms, 27 J. LE- GAL STUD. 537, 542-43 (1998) (noting four separate symposia on norms since 1990). For examples of this literature, see ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES (1991) [hereinafter ELLICKSON, ORDER]; ERIC A. POSNER, LAW AND SOCIAL NORMS (2000) [hereinafter POSNER, SOCIAL NORMS]; Robert D. Cooter, Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant, 144 U. PA. L. REV. 1643 (1996) [hereinafter Cooter, DecentralizedLaw]; Robert Cooter, Expressive Law and Economics, 27 J. LEGAL STUD. 585 (1998) [hereinafter Cooter, Expressive Law]; Robert Cooter, Normative Failure Theory of Law, 82 CORNELL L. REV. 947 (1997) [hereinafter Cooter, Normative Failure]; Robert D. Cooter, Punitive Damages, Social Norms, and Economic Analysis, 60 LAW & CONTEMP. PROBS. 73 (1997); Richard H. McAdams, Comment: Accounting for Norms, 1997 WIS. L. REV. 625; Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Productionand Race Discrimination,108 HARV. L. REV. 1003 (1995) [hereinafter McAdams, Cooperation and Conflict]; Richard H. McAdams, Group Norms, Gossip, and Blackmail, 144 U. PA. L. REV. 2237 (1996); Richard McAdams, The Origin, Development and Regulation of Norms, 96 MICH. L. REV. 338 (1997) [hereinafter McAdams, Origin]; Eric A. Posner, Law, Economics and Inefficient Norms, 144 U. PA. L. REV. 1697 (1996) [hereinafter Posner, Inefficient Norms]; Eric A. Posner, The Legal Regulation of Religious Groups, 2 LEGAL THEORY 33 (1996) [hereinafter Posner, Reli- gious Groups]; Eric A. Posner, The Regulation of Groups: the Influence of Legal and 389 390 SANTA CLARA LAW REVIEW [Vol. 43 lient feature of our common social practice integral to the gen- eration, maintenance, and transformation of social norms (as well as to many formal legal practices), the significance of which has been largely unappreciated in the mass of literature: the fact that many norms and political/legal practices are produced by and grounded in ritualized activity.2 In a society that is highly Nonlegal Sanctions on Collective Action, 63 U. CHI. L. REV. 133 (1996); Eric A. Posner, Standards, Rules, and Social Norms, 21 HARV. J.L. & PUB. POL'Y 101 (1997); Eric A. Posner, Symbols, Signals, and Social Norms in Politics and the Law, 27 J.LEGAL STUD. 765 (1998) [hereinafter Posner, Symbols]; Richard Posner, Social Norms and the Law: An Economic Approach, 87(2) AM. ECON. REV. 365 (1997). All of this literature is ori- ented towards the currently dominant paradigm of studying informal social norms in terms of game theoretic, rational actor models. For recent examples of a more "cultural" approach to social norms, see DENNIS CHONG, RATIONAL LIVES: NORMS AND VALUES IN POLITICS AND SOCIETY (2000) [hereinafter CHONG, RATIONAL LIVES]; Dennis Chong, Values Versus Interests in the Explanation of Social Conflict, 144 U. PA. L. REV. 2079 (1996) [hereinafter Chong, Values]; Amitai Etzioni, Social Norms: Inter- nalization, Persuasion,and History, 34 LAW & Soc'Y. REV. 157 (2000). 2. There is a brief discussion of the role of ritual in creating trust in informal social norms in Allan Gibbard, Norms, Discussion, and Ritual: Evolutionary Puzzles, 100 ETHICS 787, 798-99 (1990). Additionally the role of "ritual" (more broadly de- fined for purposes of this article) in changing social meanings is briefly outlined in Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 978-80, 1008-14 (1995), and in promoting group solidarity in ELLICKSON, ORDER, supra note 1, at 233-36. See also POSNER, SOCIAL NORMS, supra note 1, at 54; Etzioni, supra note 1, at 174. None of these, however, fully explore the connection between ritual and informal norms, particularly their ability to create a source of sacred authority op- posed to that of the state. Recently, economist Michael Chwe has analyzed the role of ritual in the context of the rational actor model of social coordination. See gener- ally MICHAEL SUK-YOUNG CHWE, RATIONAL RITUAL: CULTURE, COORDINATION, AND COMMON KNOWLEDGE 3-8 (2001). According to Chwe, ritual practices help solve coordination problems that can arise when members of a group who wish to adopt a certain course of action are inhibited from doing so because they do not know whether they will be joined by others. See id. Ritual provides group members with the common knowledge that others are also like-minded, by providing the oppor- tunity for participants to make public representations of their preferences for a given course of action. This is an important insight, but it only addresses a single aspect of the ritual phenomenon. Chwe does not take into account the way that rit- ual directly affects the preferences of individual actors for a certain course of action (or set of norms). Moreover, Chwe's conception of common knowledge, which fo- cuses only on what individuals know about the intentions of others, ignores the critical way that ritual (1) establishes the conceptual framework of obligation within which individual actors make decisions, and (2) helps stabilize the intersubjectively shared linguistic and cultural meanings that make communication possible at all. In particular, Chwe's approach largely ignores problems of social trust and the way that ritual creates "hypertrust" among the participants in a ritual community. While some aspects of social norms can be understood in terms of coordination problems among like-minded individuals, many others need to be conceptualized as collective action problems, modeled in terms of noncooperative games such as Prisoner's Dilemma, that raise serious issues concerning the problems of defection and free-riding. In these cases, a substantial premium is placed upon one player's 2003] RITUAL & SOCIAL NORMS JURISPRUDENCE 391 secularized, relative to other eras and cultures, it is difficult to see the impact of ritualized activity on our norms and beliefs, and easy to dismiss ritual as a vestigial remnant of an earlier era, surviving (perhaps barely) in isolated practices cabined off un- der the general rubric of "religion." This dismissal, however, is misleading on two counts. Limiting our conception of ritual to formal religious practices ignores the pervasiveness of ritualized activity in more mundane aspects of human activity -"secular rituals" that have been documented for decades by anthropolo- gists and ritualists. 3 More important, such a view ignores a criti- cal feature of human life at its most basic: ritual is deeply em- bedded in human ontogeny,4 in our communicative practices, and in the way that our mind organizes and shapes perceived reality. The defining and ineliminable traits of humanity include not only rationality and language, but also the homo ritualis na- ture of a human being. The ability to create and perform rituals underlies many of our rational and communicative faculties (in both practical and evolutionary senses). This ability has impor- tant implications for our understanding of informal norms, for- mal law, and our deepest notions of fairness and legitimacy. To see the world from the perspective of the pervasive cultural practice of ritual is to see new patterns in the rich tapestry of human behavior, breaking down the distinctions between our linguistic, cognitive, emotional, and rational capacities, in a way that better reflects the way life is lived as an interconnected whole. The fundamental insight upon which this article is based is that there are a number of cultural media through which a social high degree of trust that the others will follow a cooperative strategy. See id. 3. See generally SECULAR RITUAL (Sally F. Moore & Barbara G. Myerhoff eds., 1977). 4. Ontogeny is the study of the life cycle of a single organism or individual. Ritual practices constitute an essential part of childhood development, continuing into adolescence and early adulthood; in particular, it appears that ritualized prac- tices may form an indispensable basis for subsequent development of human sym- bolic and linguistic capacities.
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