I am thrilled to be able to share Grant McCracken’s piece, “Hard law, soft law and culture in the court room” which is part of the Bright Ideas series I started at Concurring Opinions. If you do not know Dr. McCracken’s work, I urge you to change that state of affairs (as Mike has done before I think). As noted below, Dr. McCracken has written many books, but you can begin at his blog, Cultureby which explains “This Blog Sits At the Intersection of Anthropology and Economics.” That idea is what draws me to Dr. McCracken’s work. As some of our readers may know, I am working on a large project about brands as opposed to trademarks. In simplest terms, I am arguing that the law captures only a small part of what brands do and that the legal conception of trademarks is a subset of what the business world and society in general understands as brands. Dr. McCracken’s work is important to law and legal academia, because it looks beyond law and economics and provides new perspectives and new vocabulary to describe and understand commerce and how commerce operates. In that sense, I think he captures the soft law side of culture and intellectual property. Indeed, Basic Books sent me an advance copy of his new book, Chief Culture Officer, How to Create a Living, Breathing Corporation, and I plowed through it over the Thanksgiving holiday including staying up until 3 a.m. one night, because I could not stop reading.
Dr. McCracken’s work will likely challenge those who want a neat, simple explanation for how culture and commerce intersect and interact. So be it. His book is honest, and I think accurate, about the way culture and commerce of their nature require professional study yet demand a flexibility with which many professions are uneasy. I believe that Dr. McCracken will continue this work. As he explains, we are just starting to let culture into the corporation in the open way he describes. As a case for and blueprint of the first generation of Chief Culture Officers, the book presents an excellent argument as to why companies should have a Chief Culture Officer and the key first steps for what such a position would entail (hint this position is not about being ultra-hip and fad chasing; quite the opposite). My guess is that follow-up work will explore how the first generation is doing, identify signs of the next generation, and offer lessons for both. Regardless of what comes next, I am eager to see where the ideas in Chief Culture Officer takes us and highly recommend it.
Dr. McCracken is a Research Affiliate of the Convergence Culture Consortium at Massachusetts Institute of Technology. Dr. McCracken obtained his Ph.D. in anthropology from the University of Chicago where he was the founding Director of the Institute of Contemporary Culture. He has written several books, including Transformations (2008), Flock and Flow (2006), Culture and Consumption II (2005), Big Hair (1996), and Culture and Consumption (1988). He has taught at Cambridge University, McGill University, and the Harvard Business School. In addition, he has been a consultant for many corporations, including Campbell Soup, Coke, L’Oreal, IBM, and the Children’s Television Workshop. Dr. McCracken’s work has been covered by Oprah, the New York Times, the LA Times, Newsweek, and BusinessWeek.
And now, Dr. Grant McCracken:
Hard law, soft law and culture in the court room
By Grant McCracken, MIT
Teaching legal anthropology at Cambridge, I used to draw a distinction between hard law and soft law. It’s not a perfect distinction but some students found it clarifying.
Hard law is the body of rules that comes from the deliberations of jurists, legislators and the precedent of legal discourse. It is relatively formal, explicit, and well documented. It is subject to constant scrutiny, test and revision.
Soft law is the body of rules comes from a shifting consensus contained in social life. It prevails in traditional societies where, typically, there is no written record of what the community believes. Instead, there is a shared, deeply assumed set of notions about what is required, what is prohibited, and what punishment is called for when things go wrong. When soft law changes, it often does so by gradual and invisible consensus.
Hard law and soft law represent two kinds of order. Both help regulate social affairs, but clearly they operate in very different ways. As an anthropologist who studies contemporary culture, I am surprised how often these two forms of law are proverbial “ships passing.” We might expect soft law to proceed without a clear concept of the contents of hard law. But it is odd, I think, that hard law should be created and prosecuted as if soft law does not matter…or does not exist.
Let’s take an obvious example. The famous sociologist Erving Goffman helped us understand that there is a soft law that specifies the “comfort zone” that exists around every individual in public space. The soft law says, something like, ‘you may not come with 24 inches of another individual without provoking suspicion, fear and perhaps aggression in reply.’
I am no student of the law, but it is my understanding that the law does not know from “personal space.” Those who engage in its violation are not culpable. Those who engage in its defense are not defensible. The soft law that constrains the relative position of bodies in social space has no “standing” in the court. But I believe it’s the case that some of the hostilities that require the intersession of the law begin with the violation of personal space. Justice is supposed to be blind in some ways. Why is it blind in this one?
Soft law governs social life meticulously. How we interact is specified by a code that everyone “just knows.” Verbal greetings, physical gestures, and eye movements pass between us constantly. We use them to signal, or withhold, acknowledgment, respect, esteem and deference. In a famous experiment, a sociolinguist decided to see what would happen if he stopped acknowledging his colleagues and staff at work. It wasn’t long before a sense of unease settled over the department, and eventually people began to mutter, “What the matter with Ferguson?” I wonder if the deliberate or inadvertent violations of soft law do not play a part in matters of hard law more often than we think.
We could put it this way. We are bound by soft law contracts before entering into contracts governed by hard law. Indeed, the vagaries of hard law contract may well be the outcome of the vagaries of soft law contract.
Soft law governs the domestic world before hard law enters into it. What one spouse owes another, what parents owe children, what siblings and in laws owe one another, all of this is specified in the first place by soft law. But justice is blind to soft law. Hard law has no good way of reckoning with or measuring the injuries that come to family members through the violation of soft law, and no way of acknowledging soft law violation as a prime mover of domestic unrest. This is strange because the social science here is relatively robust.
Soft law is not immutable. It is shaped and reshaped by changes in popular opinion and contemporary culture. Ours is a culture that endures and indeed requires a constant “flow through” of new belief and practice. This is the way we manage to adjust to the cataclysmic changes forced upon us by changes in technology, the economy, and indeed the beliefs and practices themselves. The force of this change is so great that the culture of the 1980s seems remote from that of the 2000s, and the world of 1960, as portrayed in the TV show Mad Men, now impossibly exotic.
What is this orderly world on which soft law rests? Let’s call it a “soft system.” It has some of the properties of order. It is systematic, governed by diffusion effects and the dynamics that govern all complex adaptive systems. It is thanks to this soft system that we all change but that we all move in roughly the same direction. But still and all, the soft system still soft. Its processes are not completely rule bound. The outcomes are not completely clear. This is to say that the soft system is like soft law. It represents a messy, assumed, consensus that endows us with order through no explicit intervention or governance on our part.
Here too justice is blind. A soft system may govern the social world but the court looks the other way. And let’s not kid ourselves. Virtually everything in the court room is governed by this soft system, the superficial things like clothing styles and the more substantial things that have to do with what we think “rights” are, what “punishment” should be, how “justice” works. If this seems extreme, perhaps someone can tell me what happened to that now idea of “rehabilitation.” This was once a very fixture of our system of justice. By invisible consensus, it has disappeared from view, dispatched on the ice flows of public opinion, and recently too.
I don’t have the benefit of legal training, so it’s hard to tell whether these remarks are useful. But it seems to me odd that the hard law should be so little interested in soft law and soft system. We treat them as ships passing, but they are often in collision. Lawyers and jurists are perhaps a little like economists in this respect. They do not acknowledge and sometimes appear not even to see the larger social and cultural context in which the law is applied. If every law firm and law school had a Chief Culture Officer, we could change this in very short order.
Goffman, Erving. 1959. The Presentation of Self in Everyday Life. Anchor.
McCracken, Grant. 2009. Chief Culture Officer. New York: Basic Books.
Ferguson, Charles. 1976. The Structure and Use of Politeness Formulas. Language in Society. Vol. 5, Issue 2, August, pp. 137-151.
Fox, Kate. 2008. Watching the English: The Hidden Rules of English Behaviour. Nicholas Brealey Publishing.