Norms, like law, then, are effective rules. What makes norms different is the mechanism and source of their sanction: They are imposed by a community, not a state. But they are similar to law in that, at least objectively, their constraint is imposed after a violation has occurred.
The constraints of the market are different again. The market constrains through price. A price signals the point at which a resource can be transferred from one person to another. If you want a Starbucks coffee, you must give the clerk four dollars. The constraint (the four dollars) is simultaneous with the benefit you want (the coffee). You may, of course, bargain to pay for the benefit later ( “I’d gladly pay you Tuesday for a hamburger today”), but the obligation is incurred at the time you receive the benefit. To the extent that you stay in the market, this simultaneity is preserved. The market constraint, unlike law and norms, does not kick in after you have taken the benefit you seek; it kicks in at the same time.
This is not to say that market transactions cannot be translated into law or norm transactions. Indeed, market transactions do not exist except within a context of law and norms. You must pay for your coffee; if you do not, the law of theft applies. Nothing in the market requires that you tip the waiter, but if you do not, norms kick in to regulate your stinginess. The constraints of the market exist because of an elaborate background of law and norms defining what is buyable and sellable, as well as rules of property and contract for how things may be bought and sold. But given these laws and norms, the market still constrains in a distinct way.
The constraint of our final modality is neither so contingent nor, in its full range, so dependent. This is the constraint of architecture — the way the world is, or the ways specific aspects of it are. Architects call it the built environment; those who don’t give out names just recognize it as the world around them.
Plainly some of the constraints of architecture are constraints we have made (hence the sense of “architecture”) and some are not. A door closes off a room. When locked, the door keeps you out. The constraint functions not as law or norms do — you cannot ignore the constraint and suffer the consequence later. Even if the constraint imposed by the door is one you can overcome — by breaking it down perhaps, or picking the lock — the door still constrains, just not absolutely.
Some architectural constraints, however, are absolute. Star Trek notwithstanding, we cannot travel at warp speed. We can travel fast, and technology has enabled us to travel faster than we used to. Nonetheless, we have good reason (or at least physicists do) for believing that there is a limit to the speed at which we can travel. As a T-shirt I saw at MIT put it, “186,282 miles per second. It’s not just a good idea. It’s the law.”
But whether absolute or not, or whether man-made or not, we can consider these constraints as a single class — as the constraints of architecture, or real-space code. What unites this class is the agency of the constraint: No individual or group imposes the constraint, or at least not directly. Individuals are no doubt ultimately responsible for much of the constraint, but in its actual execution the constraint takes care of itself. Laws need police, prosecutors, and courts to have an effect; a lock does not. Norms require that individuals take note of nonconforming behavior and respond accordingly; gravity does not. The constraints of architecture are self-executing in a way that the constraints of law, norms, and the market are not.
This feature of architecture — self-execution — is extremely important for understanding its role in regulation. It is particularly important for unseemly or unjust regulation. For example, to the extent that we can bring about effects through the automatic constraints of real-space code, we need not depend on the continued agency, loyalty, or reliability of individuals. If we can make the machine do it, we can be that much more confident that the unseemly will be done.
The launching of nuclear missiles is a nice example. In their original design, missiles were to be launched by individual crews located within missile launch silos. These men would have been ordered to launch their missiles, and the expectation was that they would do so. Laws, of course, backed up the order — disobeying the order to launch subjected the crew to court-martial.[5]
But in testing the system, the army found it increasingly unreliable. Always the decision to launch was checked by a judgment made by an individual, and always that individual had to decide whether the order was to be obeyed. Plainly this system is less reliable than a system where all the missiles are wired, as it were, to a single button on the President’s desk. But we might believe that there is value in this second check, that the agency of the action by the soldier ensures some check on the decision to launch.[6]
This is an important consequence of the automatic nature of the constraints of architecture. Law, norms, and the market are constraints checked by judgment. They are enacted only when some person or group chooses to do so. But once instituted, architectural constraints have their effect until someone stops them.
Agency, then, is one distinction between the four constraints. The temporality of the constraint — when it is imposed — is a second one.
Here I should distinguish between two different perspectives: that of someone observing when a constraint is imposed (the objective perspective), and that of the person who experiences the constraint (the subjective perspective). So far my description of the four constraints in this single model has been from the objective perspective. From that perspective they are quite different, but from a subjective perspective they need not differ at all.
From the objective perspective the difference is between constraints that demand payment up front and constraints that let you play and then pay. Architecture and the market constrain up front; law and norms let you play first. For example, think of the constraints blocking your access to the air-conditioned home of a neighbor who is gone for the weekend. Law constrains you — if you break in, you will be trespassing. Norms constrain you as well — it’s not neighborly to break into your neighbor’s house. Both of these constraints, however, would be imposed on you after you broke into the house. They are prices you might have to pay later.[7] The architectural constraint is the lock on the door — it blocks you as you are trying to enter the house. The market constrains your ownership of an air conditioner in the same way — it demands money before it will give you one. From an objective perspective, what distinguishes these two classes of constraints is their temporality — when the sanction is imposed.
From a subjective perspective, however, all these differences may disappear. Subjectively, you may well feel a norm constraint long before you violate it. You may feel the constraint against breaking into your neighbor’s house just at the thought of doing so. A constraint may be objectively ex post, but experienced subjectively ex ante.
The point is not limited to norms. Think about a child and fire. Fire is a bit of real-space code: The consequences are felt as soon as the constraint it imposes is violated. A child learns this the first time he puts his hand near a flame. Thereafter, the child internalizes the constraint of fire before putting his hand in one. Burned once, the child knows not to put his hand so near the flame a second time.[8]
We can describe this change as the development of a subjective constraint on the child’s behavior. We can then see how the idea extends to other constraints. Think about the stock market. For those who do not shop very much, the constraints of the market may indeed be only the objective constraint of the price demanded when they make a purchase. However, for those who experience the market regularly — who have, as it were, a sense of the market — the constraints of the market are quite different. Such people come to know them as a second nature, which guides or constrains their actions. Think of a stockbroker on the floor of an exchange. To be a great broker is to come to know the market “like the back of your hand”, to let it become second nature. In the terms that we’ve used, this broker has let the market become subjectively part of who she is.
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.