Deviant Legality —— When the Internationalization of the Law Violates Social Norms

As a trained economist, my academic motivation is to shed light on how individual behavior can be effectively framed in order to realize certain desired results. Law and Economics principally suggests a bundle different approaches on how the law affects individual behavior. Conventionally the law is designed to have the means to effectively sanction behavior, making this behavior ultimately less attractive (Becker 1968, Posner 1985, 1998). But the law might have only the de jure power to sanction if the enforcement agencies cannot reach or even identify violators. Lastly, soft law has no power to sanction agents. The law has no “teeth” whatsoever, if it merely proposes a certain behavior (Goldsmith and Posner 1998, 1999; see also Chayes and Chayes 1993). Problems of enforcement are particularly interesting in the realm of international law. In an increasingly interrelated and interdependent world, legal issues globalize as well. However, states interact based on the principle of sovereignty and central institutions do not have the capacity, competence, and power to sanction behavior when it comes to international law. Thus, what framework is best suited to guarantee a particular social order? Social organization follows a certain code. If not enforced by law, then this code is determined through informal norms (Ellickson 1998, 2001). In some cases, these informal norms harmonize with the formal law, in other cases they deviate. Depending on the degree of deviance, the law can either serve as a focal point to which individuals converge (Cooter 1998, McAdams 2000) or it can be regarded as illegitimate provocation and trigger more deviance (Parisi and von Wangenheim 2006, Bowles 2009, Carbonara et al. 2012). In a sociological context, actions or behaviors violating social norms are regarded as deviant (Douglas and Waksler 1980, Macionis and Gerber 1999: 191-201). However, this can hold also for international law. Consequently, this cumulative thesis “Deviant Legality – When the Internationalization of the Law Violates Social Norms” investigates the interplay between social norms and the international legal framework applying the methodologies of institutional and behavioral economics. My contribution integrates sociopsychological and sociological findings and understanding about social norms into economic thinking and regulatory implications on an international level. Special focus is laid on cases in which the law does not harmonize with the way in which individuals act or interact with each other customarily, i.e. deviates from their social norms. My thesis is composed of four independent articles. They scrutinize different platforms for social norms within different groups of actors. In all four areas, international law plays an essential role but falls short to achieve its goals laid down in legal code. The recurrent theme of the articles is that social norms have to be respected for functioning social organization. Legislators are advised to work with persisting social norms and not against them. The articles investigate the following questions: 1. Why do the dominant players in the music market, a market fundamentally affected by technological change, fight a war on file sharing rather than to innovate outdated business models? 2. Does the global war on terror effectively deter or perversely provoke more terrorist activity, probably the greatest threat to the stability of the modern world? 3. Do international investors follow ethical criteria when they acquire agricultural land in developing countries on a large scale, hereby fulfilling the enormous potential to improve the devastating conditions in the poor host countries? 4. What determines the elections of non-permanent members into the United Nations Security Council, the United Nation’s most powerful organ?