BRIGHT IDEAS: Grant McCracken, author of The Chief Culture Officer, on “Hard law, soft law and culture in the court room”

Chief Culture OfficerI am thrilled to be able to share Grant McCracken’s piece, “Hard law, soft law and culture in the court room” as part of our Bright Ideas series. If you do not know Dr. McCracken’s work, I urge you to change that state of affairs. As noted below, he has written many books, but you can begin at his blog, Cultureby which explains “This Blog Sits At the Intersection of Anthropology and Economics.” That idea is what draws me to Dr. McCracken’s work. As some of our readers may know, I am working on a large project about brands as opposed to trademarks. In simplest terms, I am arguing that the law captures only a small part of what brands do and that the legal conception of trademarks is a subset of what the business world and society in general understands as brands. Dr. McCracken’s work is important to law and legal academia, because it looks beyond law and economics and provides new perspectives and new vocabulary to describe and understand commerce and how commerce operates. In that sense, I think he captures the soft law side of culture and intellectual property. Indeed, Basic Books sent me an advance copy of his new book, Chief Culture Officer, How to Create a Living, Breathing Corporation, and I plowed through it over the Thanksgiving holiday including staying up until 3 a.m. one night, because I could not stop reading.

Dr. McCracken’s work will likely challenge those who want a neat, simple explanation for how culture and commerce intersect and interact. So be it. His book is honest, and I think accurate, about the way culture and commerce of their nature require professional study yet demand a flexibility with which many professions are uneasy. I believe that Dr. McCracken will continue this work. As he explains, we are just starting to let culture into the corporation in the open way he describes. As a case for and blueprint of the first generation of Chief Culture Officers, the book presents an excellent argument as to why companies should have a Chief Culture Officer and the key first steps for what such a position would entail (hint this position is not about being ultra-hip and fad chasing; quite the opposite). My guess is that follow-up work will explore how the first generation is doing, identify signs of the next generation, and offer lessons for both. Regardless of what comes next, I am eager to see where the ideas in Chief Culture Officer takes us and highly recommend it.

Dr. McCracken is a Research Affiliate of the Convergence Culture Consortium at Massachusetts Institute of Technology. Dr. McCracken obtained his Ph.D. in anthropology from the University of Chicago where he was the founding Director of the Institute of Contemporary Culture. He has written several books, including Transformations (2008), Flock and Flow (2006), Culture and Consumption II (2005), Big Hair (1996), and Culture and Consumption (1988). He has taught at Cambridge University, McGill University, and the Harvard Business School. In addition, he has been a consultant for many corporations, including Campbell Soup, Coke, L’Oreal, IBM, and the Children’s Television Workshop. Dr. McCracken’s work has been covered by Oprah, the New York Times, the LA Times, Newsweek, and BusinessWeek.

And now, Dr. Grant McCracken:

Hard law, soft law and culture in the court room
By Grant McCracken, MIT

Teaching legal anthropology at Cambridge, I used to draw a distinction between hard law and soft law. It’s not a perfect distinction but some students found it clarifying.
Hard law is the body of rules that comes from the deliberations of jurists, legislators and the precedent of legal discourse. It is relatively formal, explicit, and well documented. It is subject to constant scrutiny, test and revision.

Soft law is the body of rules comes from a shifting consensus contained in social life. It prevails in traditional societies where, typically, there is no written record of what the community believes. Instead, there is a shared, deeply assumed set of notions about what is required, what is prohibited, and what punishment is called for when things go wrong. When soft law changes, it often does so by gradual and invisible consensus.

Hard law and soft law represent two kinds of order. Both help regulate social affairs, but clearly they operate in very different ways. As an anthropologist who studies contemporary culture, I am surprised how often these two forms of law are proverbial “ships passing.” We might expect soft law to proceed without a clear concept of the contents of hard law. But it is odd, I think, that hard law should be created and prosecuted as if soft law does not matter…or does not exist.

Let’s take an obvious example. The famous sociologist Erving Goffman helped us understand that there is a soft law that specifies the “comfort zone” that exists around every individual in public space. The soft law says, something like, ‘you may not come with 24 inches of another individual without provoking suspicion, fear and perhaps aggression in reply.’
I am no student of the law, but it is my understanding that the law does not know from “personal space.” Those who engage in its violation are not culpable. Those who engage in its defense are not defensible. The soft law that constrains the relative position of bodies in social space has no “standing” in the court. But I believe it’s the case that some of the hostilities that require the intersession of the law begin with the violation of personal space. Justice is supposed to be blind in some ways. Why is it blind in this one?

Soft law governs social life meticulously. How we interact is specified by a code that everyone “just knows.” Verbal greetings, physical gestures, and eye movements pass between us constantly. We use them to signal, or withhold, acknowledgment, respect, esteem and deference. In a famous experiment, a sociolinguist decided to see what would happen if he stopped acknowledging his colleagues and staff at work. It wasn’t long before a sense of unease settled over the department, and eventually people began to mutter, “What the matter with Ferguson?” I wonder if the deliberate or inadvertent violations of soft law do not play a part in matters of hard law more often than we think.

We could put it this way. We are bound by soft law contracts before entering into contracts governed by hard law. Indeed, the vagaries of hard law contract may well be the outcome of the vagaries of soft law contract.

Soft law governs the domestic world before hard law enters into it. What one spouse owes another, what parents owe children, what siblings and in laws owe one another, all of this is specified in the first place by soft law. But justice is blind to soft law. Hard law has no good way of reckoning with or measuring the injuries that come to family members through the violation of soft law, and no way of acknowledging soft law violation as a prime mover of domestic unrest. This is strange because the social science here is relatively robust.

Soft law is not immutable. It is shaped and reshaped by changes in popular opinion and contemporary culture. Ours is a culture that endures and indeed requires a constant “flow through” of new belief and practice. This is the way we manage to adjust to the cataclysmic changes forced upon us by changes in technology, the economy, and indeed the beliefs and practices themselves. The force of this change is so great that the culture of the 1980s seems remote from that of the 2000s, and the world of 1960, as portrayed in the TV show Mad Men, now impossibly exotic.

What is this orderly world on which soft law rests? Let’s call it a “soft system.” It has some of the properties of order. It is systematic, governed by diffusion effects and the dynamics that govern all complex adaptive systems. It is thanks to this soft system that we all change but that we all move in roughly the same direction. But still and all, the soft system still soft. Its processes are not completely rule bound. The outcomes are not completely clear. This is to say that the soft system is like soft law. It represents a messy, assumed, consensus that endows us with order through no explicit intervention or governance on our part.

Here too justice is blind. A soft system may govern the social world but the court looks the other way. And let’s not kid ourselves. Virtually everything in the court room is governed by this soft system, the superficial things like clothing styles and the more substantial things that have to do with what we think “rights” are, what “punishment” should be, how “justice” works. If this seems extreme, perhaps someone can tell me what happened to that now idea of “rehabilitation.” This was once a very fixture of our system of justice. By invisible consensus, it has disappeared from view, dispatched on the ice flows of public opinion, and recently too.

I don’t have the benefit of legal training, so it’s hard to tell whether these remarks are useful. But it seems to me odd that the hard law should be so little interested in soft law and soft system. We treat them as ships passing, but they are often in collision. Lawyers and jurists are perhaps a little like economists in this respect. They do not acknowledge and sometimes appear not even to see the larger social and cultural context in which the law is applied. If every law firm and law school had a Chief Culture Officer, we could change this in very short order.

References
Goffman, Erving. 1959. The Presentation of Self in Everyday Life. Anchor.
McCracken, Grant. 2009. Chief Culture Officer. New York: Basic Books.
Ferguson, Charles. 1976. The Structure and Use of Politeness Formulas. Language in Society. Vol. 5, Issue 2, August, pp. 137-151.
Fox, Kate. 2008. Watching the English: The Hidden Rules of English Behaviour. Nicholas Brealey Publishing.

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4 Responses

  1. A.J. Sutter says:

    (1) As for GMcC’s comments on law: I understand your context of interest, about law still being out of touch with how people interact with brands, but I’m sorry to say that in a more general context his remarks seem rather facile. First of all, hard law is not only made by courts, it’s made by legislators, who are at times a little too susceptible to the influence of “soft law.” Second, trial lawyers are all the time coming up with new causes of action (emotional distress, “palimony”, privacy, etc.) that are very much the products of “soft law”. To say that “They do not acknowledge and sometimes appear not even to see the larger social and cultural context in which the law is applied” is at best a broad overstatement. Third, the comment “The outcomes are not completely clear,” in the context of an implied contrast between “soft” and “hard” law, reflect a typical non-lawyer’s overestimation of the clarity of law. As for his comments about greetings, gestures and eye movements in the courtroom, this sounds like a lead-up to a pitch for consulting services, turning anthropology into an instrument for winning lawsuits.

    (2) As for the reference to the CCO book: Thanks; I, for one, will look into it. But judging by GMcC’s blog entries, I have a feeling that it will be more as a case study of where America has gone wrong than as a source of inspiration. Take this from his recent HBR blog entry, about a certain “Susan Householder”:

    “Susan has her eye on a purse by the designer Kate Spade. It’s called the Cornelia Street Noel Blair and it costs $425. Susan has many purses, around 20 of them. So she doesn’t need this bag…at all. This must be all about vanity, status and greed. [¶] Not really. Susan loves this bag because it captures a concept of the person she thinks she might be becoming. Kate Spade has a positive genius for plucking new signals out of the noise of culture and turning them into something a woman can own, wear, and become. This is a luxury purchase in so far as it costs vastly more than a container needs to. But what makes it valuable for Susan is that it contains the idea of who she wants to be.”

    Why doesn’t anyone question whether it’s healthy that Susan’s idea of who she wants to be should be expressed through the acquisition of material goods? Is that the only way of becoming? What opportunities of self-realization are available to people who can’t afford $425 handbags, much less 20 of them? Whatever happened to the distinction between having and being? I also wonder to what extent the conflation of being and having is facilitated by the loss of the distinction between use value and exchange value in neoclassical economics-based capitalism.

    (There is also the question of who does Susan want to be — why should we assume that whatever she wants is necessarily benign? Is a libertarian attitude our only option here? Suppose her image of herself is as da biggest coke dealer in La Jolla? But this is to digress.)

    GMcC’s point of view seems to go beyond description — sc. of how American culture is — to prescription, in the form of urging corporations to exploit and deepen Susan’s tendencies. Not at all to single him out, because I think many share those aims, but I find that deeply troubling.

  2. Mark Edwards says:

    I’m very reluctant to plug my own work, but the relationship between what McCracken calls hard and soft law is darn near exactly what I write about. (Of course, it doesn’t say much for me that neither McCracken, nor pretty much anyone else besides me and my dog, knows it, but that’s another issue). The article that I’m finishing at the moment applies that analysis to property rights, but I’ve written about it in other contexts too. You could even read about it. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1001450

  3. Confused 2(now 3)L says:

    I acknowledge that there is a definite distinction between what the author terms soft law and hard law, (which strikes me as largely a reiteration of the concepts of custom and positive law) but I also think he is missing some of the obvious interplays between them that already exist.

    His first example is the soft law of personal space, which he argues justice is blind to, but one could suggest that the concepts of assault, and plausibly simple battery, are designed specifically to protect the concepts of personal space. They may do so poorly or incompletely, but one of the features of unstated consensus is that it is rarely precise, and in light of that the law only enforces it in cases of significant breach.

    The other description he offers is the relationship and duties that exist within a family, and here I’d argue that the intestacy system is designed exactly in response to what he is discussing. As well courts tendency to strike wills which would result in an “unnatural” dispositions of the dead’s property.

    Finally as the author alludes to soft law is given life in the very interaction of the individuals that make up the legal system. No where is this clearer than in the jury systems explicitly required in American jurisprudence which was enacted specifically to avoid the purely mechanical operation of law. Actions taken by the court in equity produce a similar result.

    None of this is to say that McCraken’s general arguments are incorrect, but simply that this is a extremely complicated set of interactions.

    JMS