After the "Social Meaning Turn": Implications for Research Design and Methods of Proof in Contemporary Criminal Law Policy Analysis
Harcourt, Bernard E., Law & Society Review
The social norm movement in criminal justice has received a lot of attention in academic and public policy circles. This essay critically examines social norm writings and explores some of the implications for methods of proof and research design in the social sciences. In the process, the essay offers an alternative theoretical approach. This alternative focuses on the multiple ways in which the social meaning of practices (such as juvenile gun possession, gang membership, or disorderly conduct) and the social meaning of policing techniques (such as juvenile snitching policies, youth curfews, or order-maintenance policing) may shape us as contemporary subjects of society. This alternative theoretical approach has its own important implications for methods of proof and research design, and the essay develops these implications into a four-prong research agenda.
Under the rubric of "norm-focused scholarship" (Kahan & Meares 1998b:806) or norm theory within the "New Chicago School" (Lessig 1998:673, 661), a number of criminal law scholars and policy analysts are focusing attention on the way that law and social norms interact, and on how the interaction regulates human behavior. These scholars contend that certain policing techniques, such as anti-gang loitering ordinances, youth curfews, and order-maintenance policing, are effective because they change the social meaning of practices such as gang membership or juvenile gun possession; and that, by changing social meaning, these policing techniques reduce criminal behavior and encourage obedience to law. They argue, for example, that youth curfews curtail gang activity in part by reducing the perception among juveniles in the inner city that their peers value gang membership (Kahan & Meares 1998b:821).
Norm-focused scholarship is intensely practical and political. According to its proponents, it generates "an intensely practical agenda" of law enforcement policies. The scholarship affirmatively promotes these policies as "politically feasible and morally attractive alternatives to the severe punishments that now dominate America's inner-city crime fighting prescriptions" (Kahan & Meares 1998b:806). The writings represent an intervention in contemporary criminal law policy analysis that is motivated as much by political, as by conceptual aims (Kahan & Meares 1998b:806).
Norm-focused scholarship has generated heated debate in law reviews (Alschuler & Schulhofer 1998; Cole 1999; Harcourt 1998; Massaro 1990; Posner 1998; Tushnet 1998), interdisciplinary journals (Massaro 1997), and political and cultural forums (Kahan & Meares 1999; Massaro 1998). The Boston Review recently dedicated one of its New Democracy Forums to the political implications of the norm-focused literature, showcasing a heated exchange between supporters such as Tracey Meares, Dan Kahan, Jean Bethke Elshtain, and Wesley Skogan, and critics such as Alan Dershowitz, Carol Steiker, Franklin Zimring, and Margaret Burnham (1999). Tracey Meares and Dan Kahan's recent article in this journal, Law and (Norms oj Order in the Inner City (1998b), is likely to generate similar heated debate.
An important question that norm-focused scholarship raises, but that has not yet been the source of much debate, is the implication of the "social meaning turn" for social scientific inquiry. What type of research design and methods of proof do norm-- focused hypotheses call for? Specifically, given the constructivist nature of social meaning, what is the proper way to explore the explanations advanced by norm-focused scholars? This question has become all the more urgent given Kahan and Meares' provocative suggestion in this journal that criminal law policy analysts should approach their work "uninhibited by certain craft norms that sometimes temper social scientists' own willingness to engage in pragmatic policy speculation" (1998b:806-7). In particular, Kahan and Meares suggest that policy analysts should employ a "political confidence standard" that is less rigorous than "the scientific confidence standard that governs in social science" (1998b:807) . …