In the late 1980s, when I was a visiting professor at Columbia Law School, I happened to pass, in the hallway near my office, a law student (female) speaking to an older law professor (male). To my amazement, the professor was stroking the student’s hair.
I thought I saw, very briefly, a grimace on her face. It was a quick flash. When he left, I said to her, “That was completely inappropriate. He shouldn’t have done that.” Her response was dismissive: “It’s fine. He’s an old man. It’s really not a problem.”
Thirty minutes later, I heard a knock on my door. It was the student. She was in tears. She said, “He does this all the time. It’s horrible. My boyfriend thinks I should make a formal complaint, but I don’t want to do that. Please — I don’t want to make a fuss. Do not talk to him about it and do not tell anyone.”
Social norms imposed constraints on what the law student felt that she could say or do. She hated what the professor was doing; she felt harassed. But the norms of the time pressed sexually harassed students to silence themselves. (Of course that is also true today, though to a lesser extent.) As a result, she did not want to say or do anything. My little comment liberated her, at least in the sense that she felt free to tell me what she actually thought.
I am interested here in two different propositions. The first is that the erosion of existing social norms often unleashes people, in the sense that it allows people to say what they believe and prefer, and to act as they wish. For that reason, new or emerging norms, and laws that signal, entrench, or fortify those norms, can lead to the discovery of preexisting beliefs, preferences, and values. The discovery can be startling. Sometimes people, and whole communities, seem to shift on a dime.
The second proposition is that revisions of norms can construct preferences and values. New or emerging norms, and laws that signal, entrench, or fortify those norms, can give rise to beliefs, preferences, and values that did not exist before. Nothing is uncovered or unleashed; new preferences are created.
Begin with the phenomenon of unleashing: When some norms are in force, people falsify their preferences or are silent about them, and as a result, strangers and even friends and family members may not be able to know what people actually think and want. Once norms are revised, people will reveal preexisting preferences and values, which norms had successfully suppressed. What was once unsayable is said, and what was once unthinkable is done.
In the context of sexual harassment, something like this account is broadly correct: Women disliked being harassed, or even hated it, and erosion of old norms increased the likelihood that they would feel free to express their feelings and beliefs in public. Law often plays a significant role in fortifying existing norms or in spurring their erosion. Consider the signaling effect of the election of a new leader or the enactment of new legislation. The signaling effect may be crucial and even transformative, offering people information about what other people think. After people hear the signal, norms may shift, because people are influenced by what they think other people think. One of the effects of judicial rulings that prohibited sexual harassment was to contribute to the process of revision of norms and of freeing people to say what they actually thought.
But in intriguingly different cases, revisions of norms, and laws that entrench those revisions, do not liberate anything. As norms begin to be altered, people come to hold, or to act as if they hold, preferences and values that they did not hold before. Nothing had been hidden or silenced. In such cases, revisions of norms, and resulting legal reforms, do not uncover suppressed desires; they produce new ones, or at least statements and actions that are consistent with new ones.
In certain cases, of course, the picture is mixed, in the sense that the two phenomena are at work simultaneously. For some people in a group or a community, preferences and values are suppressed; in the 1940s and 1950s, for example, many nonsmokers did not like being around smokers, even though they silenced themselves and offered no objection in public. But in the same period, many nonsmokers did not mind being around smokers. As norms shift, those whose preferences were suppressed will suddenly say what they think, potentially creating a kind of “norm cascade,” which can easily sweep up people who did not particularly dislike the status quo. Many nonsmokers now object to smoking, and while we cannot know if they would have objected under the norms of the 1940s and 1950s, there is every reason to think the rise of antismoking norms (and laws) created new preferences for many people even as they unleashed old preferences for many others.
Consider in this regard the idea of “political correctness,” which is standardly a reference to left-leaning social norms, preventing the expression of views that defy a prevailing left-of-center orthodoxy, and so silencing people. Political correctness means that people cannot say what they actually think; they are forced into some kind of closet. (The very term should be seen as an effort to combat existing norms.) No one should doubt that such silencing often happens. But it is also true that on both the left and the right, political correctness can construct preferences and values, making certain views unthinkable (for better or for worse). Eventually the unthinkable might become unthought. Is that chilling? (Sometimes, but sometimes not; it is not terrible if no one thinks Nazi thoughts.)
Does it matter whether revisions of norms, through private behavior or law, liberate people to reveal their preexisting preferences and values, or instead construct new preferences and values? For purposes of understanding social phenomena and the role of law, it certainly does. If preferences and values are hidden, the circumstances are right for rapid social change — but it can be difficult or perhaps even impossible to predict. When people are silent about their preferences or values, and when they falsify them, it is hard to know what people actually think. Because people conceal their preferences, outsiders cannot readily identify them. If people are bitter or discontent but fail to say so, and if they start to talk and act differently once norms are challenged and changed, then large-scale shifts in behavior are possible — but no one may be able to anticipate them.
The rise of norms against sexual harassment is an example (which is hardly to say that sexual harassment and self-silencing have disappeared). The partial collapse of norms authorizing or promoting discrimination against transgender people can be seen in similar terms: For many transgender people, the effect is to prevent self-silencing and the falsification of preferences. Similar dynamics help account for the fall of Communism, the Arab Spring, and the election of Donald Trump.
When revisions in norms produce new preferences and beliefs, rapid change is also possible, but the mechanics are altogether different. Those who produce such change (“norm entrepreneurs”) do not seek to unleash preexisting preferences, beliefs, and values. As norms shift, people are not liberated at all. Influenced and informed by new or emerging norms, they develop fresh thoughts and feelings, or at least act as if they have them. The rise of Nazism is famously complicated and highly disputed, but it can be understood in these terms, at least if we suppose that many Germans, caught up in the spread of Nazism, did not hate or dislike Jews, or have any kind of animus against them, until Hitler rose to prominence. I speculate that the 2015-2017 spread of attacks on statues and symbols associated with slavery, and with the South in the Civil War, is in large part (of course not exclusively) a product of new norms, rather than the unleashing of hidden preferences and values.
At the level of individuals, we can also find intermediate cases, in which people do not exactly have antecedent preferences that norms silence, but in which they hear a stubborn, uneasy voice in their heads, which they ignore, thinking, Why bother to listen to that? But as norms start to shift, that question has an answer: Maybe it is telling me something important, or something that reflects my real feelings and beliefs.
The general points hold far more broadly; they help explain many social movements fueled by emerging norms that unleash suppressed preferences, create new ones, or both. Consider, for example, cigarette smoking, seatbelt-buckling, uses of green energy, homophobia, Brexit, purchases of organic food, considerateness, demonstrations for white supremacy, veganism, the use of new languages, the recovery of old languages (such as Irish and Hebrew), polyamory, religious beliefs and practices, drug use, and crime. In all of these cases, norms (and law) can constrain antecedent preferences; new norms (and law) can liberate them or instead help construct new ones (or at least the appearance of new ones). Revisions in norms sometimes produce large-scale changes in an astoundingly short time, including legal reforms, which can entrench and fortify those revisions.
For both insiders and outsiders, it will often be difficult to distinguish between situations in which new norms, fueling social cascades, unleash old preferences and situations in which norm entrepreneurs succeed in creating entirely new ones. In either case, stunning surprises are nearly inevitable.