Understanding Norms

Lawrence E. Mitchell, Case Western University School of Law


The article is a sympathetic critique of the new jurisprudence of norms as developed principally by law and economics scholars. While the article applauds the intuition that has led such scholars to examine the role of non-legal norms in cooperative human conduct and the relationship of such norms to law, it concludes that the narrowly behavioral understanding of normativity that dominates this scholarship and the limited understanding both of obligation and of the nature of law reflected in this work diminishes its utility in developing a realistic understanding of norms and normativity. In particular, the article argues that the retention of basic neo-classical assumptions in this endeavour is self-defeating, that the new norms jurisprudes misunderstand the moral psychology that helps to create and sustain obligation, that the narrow Austinian understanding of law implicit in much of this work leads it to distort the relationship of law and norms, and that the nominalism of the approach leads the new norms jurisprudes away from a complex understanding of the interrelationship of the various norms systems in which we all function. The article suggests some directions for further research and thought in order to enrich a project that has much promise but has yet to make significant progress.