Each constraint, then, has a subjective and an objective aspect. Laws are objectively ex post, but for most of us, the fact that a law directs us in a particular way is sufficient to make it a subjective constraint. (It is not the objective threat of jail that constrains me from cheating on my taxes; instead, I have made subjective the constraints of the law with respect to taxes. Honest, IRS. This is true.) As a subjective constraint, it constrains us before we act.
For those who are fully mature, or fully integrated, all objective constraints are subjectively effective prior to their actions. They feel the constraints of real-space code, of law, of norms, and of the market before they act. For the completely immature, or totally alienated, few objective constraints are subjectively effective. They step in the mud and only then learn about the constraint of mud; they steal bread and only then learn about the punishments of the law; they show up at a wedding in cut-offs and only then learn about the scorn of their friends; they spend all their money on candy and only then learn of the constraint of market scarcity. These two types mark out the extremes; most of us are somewhere in between.
The more subjective a constraint, then, the more effective it is in regulating behavior. It takes work to make a constraint subjective. An individual must choose to make it a part of who he or she is. To the extent that the norm is made subjective, it constrains simultaneously with the behavior it regulates.
This points to one final distinction between law and norms, on the one hand, and real-space code, on the other. Law and norms are more efficient the more subjective they are, but they need some minimal subjectivity to be effective at all. The person constrained must know of the constraint. A law that secretly punishes people for offenses they do not know exist would not be effective in regulating the behavior it punishes.[9]
But this is not the case with architecture. Architecture can constrain without any subjectivity. A lock constrains the thief whether or not the thief knows that it is a lock blocking the door. The distance between two places constrains the intercourse between those two places whether or not anyone in those places understands that constraint. This point is a corollary of the point about agency: Just as a constraint need not be imposed by an agent, neither does the subject need to understand it.
Architectural constraints, then, work whether or not the subject knows they are working, while law and norms work only if the subject knows something about them. If the subject has internalized them, they can constrain whether or not the expected cost of complying exceeds the benefit of deviating. Law and norms can be made more code-like the more they are internalized, but internalization takes work.
Though I have used language invoking architects, my language is not the language of architects. It is instead stolen and bent. I am not a scholar of architecture, but I have taken from architecture its insight about the relationship between the built environment and the practices that environment creates.[10] Neither architects nor I take this relationship to be determinative. Structure X does not determine behavior Y. Instead, these forms are always influences that can change, and when they are changed, they alter the affected behavior.
Like Michael Sorkin, I believe that “meanings inhere in forms, and that the settings for social life can aid its fulfillment. ” His book Local Code: The Constitution of a City at 42N Latitude suggests each feature of the model I am describing, including the ambiguity between law and architecture (building codes) and the constitution the two enable. Whatever the source of the content of these codes, he writes, “their consequences are built.”[11] This is the feature to focus on.
My suggestion is that if we relativize regulators — if we understand how the different modalities regulate and how they are subject, in an important sense, to law — then we will see how liberty is constructed, not simply through the limits we place on law, but by structures that preserve a space for individual choice, however that choice may be constrained.
We are entering a time when our power to muck about with the structures that regulate is at an all-time high. It is imperative, then, that we understand just what to do with this power. And, more importantly, what not to do with it.
9.
Cf. Dan M. Kahan, “Ignorance of Law Is an Excuse — But Only for the Virtuous”, Michigan Law Review 96 (1997): 127.
10.
See, for example, Schuster et al., Preserving the Built Heritage; Peter Katz, The New Urbanism: Toward an Architecture of Community (New York: McGraw-Hill, 1994); Duany and Plater-Zyberk, Towns and Town-Making Principles.
11.
Michael Sorkin, Local Code: The Constitution of a City at 42N Latitude (New York: Princeton Architectural Press, 1993), 11, 127.