For much of the past year, COVID-19 has pushed many people to accept and follow new behaviors. These include wearing a mask in public, trying to distance oneself socially and restricting groups to a smaller number.
Developed in what critics say is an absence of strong national leadership, these behaviors have been controlled, by and large, by the people themselves – fines and other sanctions are rarely enforced at an official level. Instead, disrespect is greeted with disapproval and the occasional anger from others.
Until vaccines offer more lasting protection, these decentralized social norms have contributed to our collective security. But an interesting question arises: how important are informal rules to keeping us safe, and why do people change their behavior to follow the norms when they don’t expect disobedience to be punished by authorities ?
As a sociologist and jurist, I think the answer lies in a little-studied aspect of law and society: the informal rule of law. By informal rule of law, I mean norms of behavior that evolve through the actions of people or institutions and have no legal force. Such standards can be written down, but they are generally not enforced by governments.
As the response to the COVID-19 pandemic illustrates, most people seek to adhere to common codes of behavior that they see as fair and generally in the best interests of all. This includes the way we wait in the queues or many aspects of the way we talk to each other. These standards generally do not depend on the threat of state law enforcement to be pervasive or meaningful.
Since the pandemic hit the United States last March in my area of ââwestern Massachusetts, individuals and businesses have set up expected patterns of social behavior that are markedly different from what was present before.
For this reason, most of the people I see wear face masks, stay at least six feet from others, and wait in orderly lines to enter and move around shops and other public places. This matches national surveys which show that as 2020 passed, increasing numbers of Americans embraced behavioral patterns such as wearing masks in stores.
The key is that these rules have emerged somewhat organically across civil society. There has been limited action at the federal level, and although state warrants have been issued – in some reluctantly – it has often been left largely to the people themselves to manage their own response, especially in the early stages. An analysis by the European think tank Bruegel found that in many cases, social distancing occurred before government intervention. “In the absence of government action, if individuals are made aware of the risks, they appear to choose to engage in social distancing,” the researchers concluded.
Admittedly, the informal nature of these rules has led to public disagreements and even arguments, and local authorities have stepped in to stress the rules of social distancing. But often this only happened after the rules themselves emerged.
In short, the pandemic demonstrated the evolution of an informal rule of law that was initially promulgated, challenged, and enforced primarily independent of US governments, courts, and police.
The speed at which the informal rule of law has been accepted by many when it comes to COVID-19 should remind us that human societies are capable of self-regulation to a fairly effective extent. My region, and many others, fought off the pandemic in Wave 1 primarily through the rapid spread of rules of behavior that required self-sacrifice but served the public interest. As Cambridge economic epidemiologist Flavio Toxvaerd recently noted in a study on the impact of behavior on disease: âSpontaneous and uncoordinated social distancingâ¦ acts to flatten the curve of the epidemic by reducing the peak of prevalence.
Being part of the informal rule of law can be edifying. Indeed, the sense of satisfaction that people I know have expressed in making a difference in saving lives by adhering to standards of social distancing is at least a small element of action against the terrible trauma and death toll that the pandemic caused.
Yet the informal rule of law has its limits. These are also clear in a large-scale crisis like COVID-19. First, enforcing informal rules is difficult, as many know from the discomfort we feel when trying to get others to wear masks. Important political thinkers have argued for centuries that one of the main reasons people need government is to rule on critical rules effectively and impartially, and to punish significant violations. The informal rule of law during the pandemic has helped reduce the spread of cases. But research has shown that warrants could be more effective. And enforcement institutions always seem necessary when people really disagree on informal legal behavior, as we’ve seen in some areas with large outbreaks of COVID-19 in the United States.
More importantly, a major crisis like the pandemic is too widespread and complex to be fully regulated by a local and consensual informal rule of law. Many aspects of the fight against the pandemic go far beyond what can be achieved by ordinary people or communities. This requires data on cases, research into the disease and ways to control it, the distribution of essential supplies and the accumulation of expert knowledge.
As key aspects of the COVID-19 pandemic depend on larger-scale action and expertise, the role of informal rule of law works best alongside the formal actions of leaders and institutions.
Nevertheless, the supporting role of the informal rule of law deserves attention. With so many great challenges facing the United States and the world today, it’s easy for people to feel helpless and passive. Yet as a collection of small corporations and often generous individuals, people in the part of Massachusetts where I live, and in many diverse places, have succeeded in developing new ways of interacting and socializing. behave that may not be particularly rewarding. They have saved countless lives again.[Get facts about coronavirus and the latest research. Sign up for The Conversationâs newsletter.]
David Mednicoff, Chairman, Department of Judaic and Near Eastern Studies, and Associate Professor of Middle Eastern Studies and Public Policy, University of Massachusetts Amherst
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