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The Chicken or the Egg? Law and Public Opinion

Fumiko Nagano's picture

"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors." -Thomas Jefferson

Thoughtful comments to my recent post on approaches to fighting petty corruption sparked for me an interesting discussion with Sina Odugbemi about norms, public opinion and law. Mainly, our talk centered on the following “chicken or the egg” issue: Do you adopt laws first and ask citizens to obey them? Or, do you gauge public opinion around an issue first, then adopt a law that reflects that society’s prevailing view on that issue? No matter how you dice it, the enforcement of that law would be easier when it conforms to majority opinion as opposed to when it does not.

The main challenge to tackling petty corruption is that in many countries, engaging in it is the norm. Bribery practices—whether citizens paying bribes or officials accepting them for services that should be rendered free of charge—are considered not just acceptable, but the normal thing to do! A routine activity, part of life, generally justified with the “everybody does it, so why shouldn’t I” attitude. In such an environment, government’s decision to ban corruption legally indeed sends a strong message about its commitment to fighting corruption and should, of course, be lauded. In such an environment, however, government would need to allocate a whole lot of time and resources to enforce that law because it is not widely supported.

But what happens if a law coincides with the norm? On my recent trip to Japan, I noticed that people take the “no drinking and driving” law very (very) seriously. No drinking and driving means just that. Not a drop if you are driving. Literally. Having lived in the United States where I am used to the culture of “well, I’ll just have a taste,” or its closely related cousin, “fine, I’ll just have one drink and then wait to drive until alcohol is out of my system,” I suggested these measures as viable options to my relatives and was quickly ridiculed. “Absolutely not! What are you, an idiot?,” they barked, flabbergasted. I was embarrassed to even suggest such inappropriate behavior. This sentiment might have taken root in Japan because the law is strict and the Japanese police are good at enforcing it. Judging by the way my relatives (heatedly) reacted, one thing was clear: the enforcement of the law took minimal effort given the strong collective belief equating drinking and driving as simply wrong.

So which comes first, the law or the norm? We can learn a lot from analyzing what led to the tidal changes in public opinion vis-à-vis controversial issues in our lifetime such as the seatbelt law, smoking ban, animal rights, environmental protection, abortion, same-sex marriage, among others. Did laws transform people’s opinion about issues? Or did the laws simply support (or ban) what was already brewing in public conscience as the norm?

On second thought, perhaps it matters little which came first. The point is that laws agreeing with a society’s general sense of right and wrong are easier to enforce. Bottom-up as opposed to top-down. The legal system would then be able to free up more time and resources to deal with a minority of offenders. If engaging in bribery is regarded by the majority of a society’s citizens as an act ethically and culturally unacceptable as the act of drinking and driving by the Japanese, the enforcement of a ban on corruption should take less effort. At home, at work, and in public spaces, social control mechanisms should kick in, ridiculing and embarrassing those who would dare stray. People would “own” the ban on corruption. It would be self-enforced. It would be sustainable.

Photo Credit: Flickr user ĐāżŦ

Quote taken from: Quotations on the Jefferson Memorial