- Laws are like social norms but with a state sanction.
- Laws are a formalised set of community standards. In other words, laws try to protect against what we consider to be inappropriate and unacceptable behaviour
- Generally speaking, in complex societies social norms become encoded as laws to enforce them.
- Most laws that affect our relationships relate to consent, because in many cases consent is the difference between an act being acceptable or unacceptable.
- Laws require consent for many shared personal actions.
- Laws also try to protect people (like children) who can’t give informed consent.
- There are lots of reasons why we would follow a law.
- At the same time, if a law seems wrong or unjust, people might decide to push back on it.
Why are laws important?
Laws are like the guardrails of our behaviour. Most of the time we don’t think about them, but if we see our behaviour straying towards an edge, we hopefully notice the guardrails and get back on course.
But where do laws come from? Why do we have laws for some behaviours and not others?
And what laws govern our relationships with other people?
What do laws actually do?
One way to think about laws is that they are social norms, but with a state sanction. Most social norms have social sanctions, which means if you break the norm, the people around you will punish you in some social way, which could be anything from frowning at you to expelling you from their group.
But if you break a law, it’s not the people around you that sanction you: it’s the police, the courts, the prison system—a whole apparatus of law enforcement that does the punishing.
The benefit is that we don’t have to just rely on members of the community to police behaviour but can call on a range of professionals and public services to help.
This is especially helpful when the person breaking the norm or law is more powerful than the person being harmed—laws mean the less powerful victim can call on the power of the state to help them.
It also means we have access to a more complex range of state sanctions—including fines, imprisonment and loss of specific freedoms—that can hopefully be imposed more consistently and impartially than simple social sanctions.
That’s not to say that laws are always effectively policed. There can be all sorts of problems with the application of the law: crimes that aren’t reported, authorities that don’t respond, not to mention the overall cost and difficulty of pursuing anything in court.
Another key difference between laws and social norms: laws are written down and agreed to by government and court; social norms are usually unwritten and unapproved.
What comes first: norm or law?
Social norms and laws shape each other through complex feedback loops.
Generally speaking, social norms tend to come first, and in complex societies they become encoded as laws to help enforce them. For instance, we probably had social norms against theft long before we had laws against it.
But sometimes the laws come first. For instance, it used to be completely normal to smoke in restaurants and planes, but because of the public health risks we introduced laws against smoking in public places, and now social norms have also changed to become far more anti-smoking.
And sometimes social pressure can change both norms and laws. For instance, extensive lobbying and activism changed both the social norms and the laws around gay marriage.
So there’s a constant evolutionary interplay between social norms and laws, with each affecting the other.
How do laws affect our personal relationships?
We have all sorts of laws that put guardrails around what we can do in our personal relationships.
Most of these revolve around the idea of consent, because most actions in a relationship could be good or bad depending on whether or not someone had given consent.
- Sex with consent is sex, without consent it is rape.
- Touching with consent is touching, without consent it can be sexual harassment or assault.
- Flirting with consent is flirting, without consent it can be sexual harassment.
- Sharing nudes with consent is sharing nudes, without consent it is image-based abuse.
- Looking in someone’s phone with consent is just looking in a phone, without consent it is stalking.
So within personal relationships, consent is key in the eyes of the law. With consent, legally fine; without consent, there might be a crime.
But there have been court cases with arguments about whether or not someone gave consent, or whether the consent was clear enough. So there is a strengthening social norm, which is already becoming law in some parts of the country, that anyone initiating decisions check for enthusiastic consent.
This means actively seeking an obvious and explicit yes from a partner, so there is no ambiguity. This is particularly important when the two people don’t know each other very well. It also means acknowledging that someone can consent to something without understanding what they consented to, like a child, and trying to protect people in this situation.
How do laws address the complexities of consent?
Consent is critical, but it is meaningless if not freely given, so our laws account for the context and the relationship between the two parties when evaluating consent.
For instance, we have explicit laws about the age of consent, because we don’t believe that very young people have the mental or emotional maturity to consent to activities that might have negative long term consequences for them. For instance, the age of consent for sex in most states is 16 years old.
Similarly we have laws that restrict people in positions of power or authority who might use that power to talk someone into giving consent. For instance, it is illegal for a police officer to have sex with someone under arrest or a teacher to have sex with a student.
Why do we accept or not accept a law?
In the same way that laws emerge from social norms, people sometimes push back and resist a law that they feel is unfair or unjust.
The degree to which we accept a law depends on a number of factors:
- Is the law fair?
- Is everyone else following the law?
- What is the risk of getting caught?
- How bad would the consequences be?
- What feels right?
Feeling right is surprisingly important: our laws are related to our sense of morality, and a lot of our compliance with laws comes from wanting to act in a way that is consistent with our morals and values, simply because that feels better.
However, if sanctions for breaking the law are weak, and/or the risk of getting caught is low, then we can get a feedback loop where more and more people stop following the law, and the illegal behaviour becomes the social norm, even though it’s against the law.
And if the law is perceived as being fundamentally unfair or unjust, then people may choose to defy the law publicly or privately, and eventually seek to have it overturned.
So, in general, laws are good. Obey the law! But we can also recognise that laws are social constructs that can be applied well or badly, and can change with time and social pressure.