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4. See Robert Cooter, “Expressive Law and Economics,” Journal of Legal Studies 27 (1998): 585. 5. Cf. Paul N. Bracken, The Command and Control of Nuclear Forces (New Haven: Yale University Press, 1983), 179–237; Christopher Chant and Ian Hogg, The Nuclear War File (London: Ebury Press, 1983), 68–115. 6. On the other side, the military built into the system technological brakes on the ability to launch, to ensure that no decision to launch was ever too easy; see also Daniel Ford, The Button: The Nuclear Trigger—Does It Work? (London: Allen and Unwin, 1985), 118–21. 7. “The phenomena of social meaning and incommensurability constrain rational choice (individual and collective). Generalizing, it is irrational to treat goods as commensurable where the use of a quantitative metric effaces some dimension of meaning essential to one’s purposes or goals. It would be irrational, for example, for a person who wanted to be a good colleague within an academic community to offer another scholar cash instead of comments on her manuscript. Against the background of social norms, the comment’s signification of respect cannot be reproduced by any amount of money; even to attempt the substitution conveys that the person does not value his colleague in the way appropriate to their relationship”; Dan M. Kahan, “Punishment Incommensurability,” Buffalo Criminal Law Review 1 (1998): 691, 695. 8. Many scholars, Robert Cooter most prominently among them, argue that norms are special because they are “internalized” in a sense that other constraints are not; see Robert D. Cooter, “Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant,” University of Pennsylvania Law Review 144 (1996): 1643, 1662; Robert D. Cooter, “The Theory of Market Modernization of Law,” International Review of Law and Economics 16 (1996): 141, 153. By internalization, Cooter is just describing the same sort of subjectivity that happens with the child and fire: the constraint moves from being an objectively ex post constraint to a subjectively ex ante constraint. The norm becomes a part of the person, such that the person feels its resistance before he acts, and hence its resistance controls his action before he acts. Once internalized, norms no longer need to be enforced to have force; their force has moved inside, as it were, and continues within this subjective perspective. In my view, we should see each constraint functioning in the same way: We subjectively come to account for the constraint through a process of internalization. Some internalization incentives may be stronger than others, of course. But that is just a difference. 9. Cf. Dan M. Kahan, “Ignorance of Law Is an Excuse—But Only for the Virtuous,” Michigan Law Review 96 (1997): 127. 10. See, for example, Schuster et al., Preserving the Built Heritage; Peter Katz, The New Urbanism: Toward an Architecture of Community (New York: McGraw-Hill, 1994); Duany and Plater-Zyberk, Towns and Town-Making Principles. 11. Michael Sorkin, Local Code: The Constitution of a City at 42N Latitude (New York: Princeton Architectural Press, 1993), 11, 127.
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4. See Robert Cooter, “Expressive Law and Economics,” Journal of Legal Studies 27 (1998): 585. 5. Cf. Paul N. Bracken, The Command and Control of Nuclear Forces (New Haven: Yale University Press, 1983), 179–237; Christopher Chant and Ian Hogg, The Nuclear War File (London: Ebury Press, 1983), 68–115. 6. On the other side, the military built into the system technological brakes on the ability to launch, to ensure that no decision to launch was ever too easy; see also Daniel Ford, The Button: The Nuclear Trigger—Does It Work? (London: Allen and Unwin, 1985), 118–21. 7. “The phenomena of social meaning and incommensurability constrain rational choice (individual and collective). Generalizing, it is irrational to treat goods as commensurable where the use of a quantitative metric effaces some dimension of meaning essential to one’s purposes or goals. It would be irrational, for example, for a person who wanted to be a good colleague within an academic community to offer another scholar cash instead of comments on her manuscript. Against the background of social norms, the comment’s signification of respect cannot be reproduced by any amount of money; even to attempt the substitution conveys that the person does not value his colleague in the way appropriate to their relationship”; Dan M. Kahan, “Punishment Incommensurability,” Buffalo Criminal Law Review 1 (1998): 691, 695. 8. Many scholars, Robert Cooter most prominently among them, argue that norms are special because they are “internalized” in a sense that other constraints are not; see Robert D. Cooter, “Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant,” University of Pennsylvania Law Review 144 (1996): 1643, 1662; Robert D. Cooter, “The Theory of Market Modernization of Law,” International Review of Law and Economics 16 (1996): 141, 153. By internalization, Cooter is just describing the same sort of subjectivity that happens with the child and fire: the constraint moves from being an objectively ex post constraint to a subjectively ex ante constraint. The norm becomes a part of the person, such that the person feels its resistance before he acts, and hence its resistance controls his action before he acts. Once internalized, norms no longer need to be enforced to have force; their force has moved inside, as it were, and continues within this subjective perspective. In my view, we should see each constraint functioning in the same way: We subjectively come to account for the constraint through a process of internalization. Some internalization incentives may be stronger than others, of course. But that is just a difference. 9. Cf. Dan M. Kahan, “Ignorance of Law Is an Excuse—But Only for the Virtuous,” Michigan Law Review 96 (1997): 127. 10. See, for example, Schuster et al., Preserving the Built Heritage; Peter Katz, The New Urbanism: Toward an Architecture of Community (New York: McGraw-Hill, 1994); Duany and Plater-Zyberk, Towns and Town-Making Principles. 11. Michael Sorkin, Local Code: The Constitution of a City at 42N Latitude (New York: Princeton Architectural Press, 1993), 11, 127.
