• Some of the power of the French Revolution derived from the architecture of Paris: the city’s small and winding streets were easily barricaded, making it possible for revolutionaries to take control of the city with relatively little absolute strength. Louis Napoleon III understood this, and in 1853 he took steps to change it.¹ Paris was rebuilt, with wide boulevards and multiple passages, making it impossible for insurgents to take control of the city.

• Every schoolchild learns of Lafayette’s design to make an invasion of Washington difficult. But more interesting is the placement of the White House relative to the Capitol. The distance between them is one mile, and at the time it was a mile through difficult terrain. (The mall was a swamp.) The distance was a barrier meant to tilt the intercourse between Congress and the president by making it marginally more difficult for them to connect—and thereby more difficult for the executive to control the legislature.

• This same idea has influenced the placement of constitutional courts in Europe. Throughout Europe constitutional courts were placed in cities other than the capital. In Germany the court is in Karlsruhe rather than Berlin; in the Czech Republic it is in Brno rather than Prague. The reason again is tied to the constraint of geography: placing constitutional courts far away from legislatures and executives was meant to minimize both the pressure the latter two bodies could place on the court and reduce the court’s temptation to bow to it.

• The principle is not limited to high politics. Designers of parking garages or streets where children may play place speed bumps in the road so that drivers must slow down. These structures have the same purpose as a speed limit or a norm against driving too fast. But they operate by modifying architecture so that architecture regulates.

• Neither is the principle limited to virtuous regulation: Robert Moses built bridges on Long Island to block buses, so that African Americans, who depended primarily on public transportation, could not easily get to public beaches.² That was regulation through architecture, invidious yet familiar.

• Nor is it limited to governments. A major American airline noticed that passengers on early Monday morning flights were frustrated with the time it took to retrieve bags from the plane. They were much more annoyed than other passengers, even though it took no longer than average to retrieve the bags from these flights. The company began parking these flights at gates farther away from baggage claim, so that by the time the passengers arrived at baggage claim, their bags were there. Frustration with the baggage handling system was eliminated.

• A large hotel in an American city received many complaints about the slowness of its elevators. It installed mirrors next to the elevator doors. The complaints ended.

In each example, a constraint of architecture is changed so as to realize a collective or social end. As a sign above one of the portals at the 1933 Chicago World’s Fair put it (though it was speaking of science): “Science Explores: Technology Executes: Man Conforms.”³

Law can change social norms as well, though much of our constitutional jurisprudence seems dedicated to forgetting just how.⁴ Education is the most obvious example. As Thurgood Marshall put it, “Education is not the teaching of the three R’s. Education is the teaching of the overall citizenship, to learn to live together with fellow citizens, and above all to learn to obey the law.”⁵ Education is, in part at least, a process through which we indoctrinate children into certain norms of behavior—we teach them how to “say no” to sex and drugs. We try to build within them a sense of what is correct. This sense then regulates them to the law’s end.

Plainly, the content of much of this education is regulated by law. Conservatives worry, for example, that by teaching sex education we change the norm of sexual abstinence. Whether that is correct or not, the law is certainly being used to change the norms of children. If conservatives are correct, the law is eliminating abstinence. If liberals are correct, the law is being used to instill a norm of safe sex. Either way, norms have their own constraint, and law is aiming to change that constraint.

To say that law plays a role is not to say that it always plays a positive role. The law can muck up norms as well as improve them, and I do not claim that the latter result is more common than the former.⁶ The point is just to see the role, not to praise or criticize it. The aim is descriptive; the normative comes later.

Footnotes

¹ See Alain Plessis, The Rise and Fall of the Second Empire, 1852–1871, (1979) translated by Jonathan Mandelbaum (English-language edition, New York: Cambridge University Press, 1985), 121; “Haussmann, Georges-Eugene Baron,” in Encyclopedia Britannica, 5th ed., vol. 5 (1992). Steven Johnson criticizes other aspects of the change in Interface Culture, 63–64. Edit Delete

² See Robert A. Caro, The Power Broker: Robert Moses and the Fall of New York (New York: Alfred A. Knopf, 1974), 318. Edit Delete

³ Brin, The Transparent Society, 293. Edit Delete

⁴ Consider civil rights in the American South. During the legislative hearings on the Civil Rights Act of 1964, supporters of the bill called before the committee white, southern employers and business owners whose discrimination against blacks was the prime target of the legislation. Some of these employers and businessmen supported the bill because business would improve: the labor pool would increase, causing wages to decrease, and the demand for services would increase—so long, that is, as whites did not shift their custom. This last point is what set the stage for business support for the Civil Rights Act. What business leaders feared was the retaliation of whites against their voluntary efforts to integrate. The Civil Rights Act changed the context to make discrimination against blacks illegal. The businessman could then—without fear of the retaliation of whites—hire or serve a black because of either his concern for the status of blacks or his concern to obey the law. By creating this ambiguity, the law reduced the symbolic costs of hiring blacks. This example demonstrates how law can change norms without government having control over the norms. In this case, the norm of accommodating blacks was changed by giving it a second meaning—the norm of simply obeying the law; see Lessig, “The Regulation of Social Meaning,” 965–67. Edit Delete

⁵ Thurgood Marshall, Esq., oral argument on behalf of respondents, Cooper v Aaron, 358 US 1 (1958) (no. 1), in Fifty-four Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, edited by Philip B. Kurland and Gerhard Casper (Washington, D.C.: University Publications of America, 1975), 533, 713. Edit Delete

⁶ See, for example, Dyson, Release 2.0: “Government can play a divisive role vis--vis communities. Often, the more government provides, the less community members themselves contribute” (43); in “The Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action” (University of Chicago Law Review 63 [1996]: 133), Eric A. Posner argues that government help to a community can undermine the community. Edit Delete