Voting, Political Participation, and Symbolic Behavior

An important but neglected aspect of the law is its symbolic function. A sym-bol is an image that refers to a system of beliefs that are generally known, if not necessarily shared, by the person who observes the symbol. Symbolic havior is an agent’s use of a symbol to show that he shares or rejects these be-liefs, and usually involves either an act of respect for the symbol or an act of rejection. When I wave an American ﬂag at a parade, for example, I do not do so because I enjoy the physical exercise, the way I might enjoy hitting a punching bag. I do so in order to persuade people that I have certain beliefs about the United States. When I burn or mutilate a ﬂag, I draw attention to my rejection of these beliefs.

It hardly needs to be said that symbolism is important in politics and the law. Flag desecration itself riles emotions periodically, most recently in the early 1990s, but also during the Vietnam War and as far back as the end of the nineteenth century (Goldstein 1996). The most recent eruption resulted in state legislation, a significant Supreme Court opinion, and even efforts to amend the U.S. Constitution. And yet what is at stake? In many countries, the flag means nothing, flag desecration is unknown, and citizens fight over other symbols, like the lyrics of the national anthem or the treatment of the national bird.

Other areas of American law concern symbols. The jurisprudence on the religion clauses of the U.S. Constitution concerns the use of public property to display religious symbols. Voting is essentially a symbolic act, since an indi-vidual’s vote has virtually no inﬂuence on the outcome of elections, so laws that regulate voting are laws that regulate symbolic behavior. Controversies over national holidays (like Martin Luther King, Jr. Day), whether there

should be a national language, apologies to historically victimized groups, and so on, are essentially controversies about symbolic behavior. Yet, despite the importance of symbolism in politics and the law, the legal literature lacks a methodology for understanding it.¹

A Model of Symbolic Behavior

I will limit myself to a discussion of patriotic symbolism, by which I mean symbolic behavior that shows one’s commitment to the state, but the discus-sion can be extended to symbolic behavior that shows one’s commitment to a religious group or to an ethnic or racial group (see the next chapter). The model of patriotism is a simple reinterpretation of the cooperation model de-scribed in Chapter 2.

Patriotic behavior can be a signal that one belongs to the good type. The reason is that typical patriotic behavior—volunteering for the army, joining rallies and parades, waving the flag, voting—does not satisfy preferences that most ordinary people have, as everyone recognizes. No one displays the Amer-ican flag outside his or her house on July 4 for the sheer aesthetic joy of it. If one really thought that the flag was uniquely beautiful and enhanced the ap-pearance of one’s house, one would display the flag every day, not just on July 4. This is not to say that patriotic behavior is always a clear signal. In the past the army attracted adventurers and today it supplies valuable training. But when people join the army in a time of war, most expose themselves to costs that exceed whatever gains might be expected. Similarly, joining a parade might be fun independently of its patriotic meanings; but to join a parade during, say, the Vietnam War, or during Veteran’s Day in the pouring rain, is not intrinsically enjoyable for most people. In this way, patriotic behavior is like gift-giving, where there is always some ambiguity whether the donor acts from altruism (in which case the signal is costless and therefore meaningless) or from a desire to reveal type. “Symbolic behavior” is thus simply signaling behavior. Patriotic symbolism is signaling behavior that exploits people’s prior beliefs that actions relating to the good of the country are generally costly actions.

A stylized example can be used to illustrate these points. The McCarthy era began after the explosion of a hydrogen bomb by the Soviet Union and the exposure of Soviet spies in the American government, events that heightened fears about the security of the United States and provoked concern about na-tional cohesiveness. Although people always worry about the trustworthi-ness of their social and busitrustworthi-ness partners, increasing international tensions heighten these worries. The victim of a partner’s opportunism incurs a greater loss, if everything else is equal, in a wartime economy characterized by scarcity than in times of peace and robust economic growth. In an atmosphere of

cri-sis, traditional signals of patriotism, such as attendance at parades, are likely to be insufficient to distinguish good types and bad types. As the cost and likelihood of being shunned increases, bad types will find it worthwhile to in-vest in the relatively inexpensive signals. To distinguish themselves from the bad types, then, good types must discover more expensive signals. The signal proposed by McCarthy was the shunning of communists and anyone else who expressed skepticism about traditional American political institutions and values. In certain areas of the American economy, such as the entertain-ment industry, the proposal was dramatically successful. To avoid losing their jobs, people informed on or shunned members of the Communist Party. At the time, this behavior was viewed by many people (though not, of course, by critics) as patriotic behavior, similar to volunteering for the army and civil de-fense and (to take examples from World War II) recycling rubber and tending victory gardens, and to attending parades and memorials, observing national holidays, and showing respect for the flag.

The significance of world events was twofold. First, they enhanced the felt need to avoid bad types. In times of peace, entering a relationship with a bad type may not be so dangerous: the bad type may cheat you, but little is at stake anyway. In times of war, entering a relationship with a bad type is dan-gerous; because resources are pinched, and more is at stake. One might object that while this may be true during real emergencies, when goods are scarce and ordinary conveniences disappear, a buyer of widgets is not going to lose confidence with the seller just because of international tensions. This is a rea-sonable objection. Second, world events supplied the focal point of the signal-ing equilibrium. If the Soviet Union is the threat, and the Soviet Union is controlled by communists, then, the reasoning goes, maybe American com-munists are also a threat. Shunning American comcom-munists and their allies, as long as it is costly, reveals one’s commitment to cooperation with non-com-munist citizens. The buyer of widgets and the seller of widgets reaffirm their trust by condemning communists, not by praising Stalin.

McCarthy, a classic norm entrepreneur, did not fabricate the association between communism and subversion, but he strengthened the association by drawing attention to it. Before the McCarthy era, avoiding communists was not a powerful signal of loyalty. During the McCarthy era, it became such a powerful signal of loyalty that a separating equilibrium was created. Only af-ter some years did this equilibrium collapse, when Americans came to believe that the Soviet threat was exaggerated, or that the threat from bad types was exaggerated, or that the cost of erroneously shunning people who were not bad types was too high.

The last point is important. The patriotic signal would not have been is-sued by good types who cared deeply about the good of the country and who objected to McCarthy’s tactics or were committed to communism, and yet

these people would have been ostracized. There is a difference between one’s type—which refers to one’s discount rate—and one’s beliefs about what is best for one’s country. The demise of McCarthyism resulted in part from the real-ization that good types were being shunned along with the bad. Once people stopped believing that only good types supported McCarthy and only bad types opposed McCarthy, support for McCarthy became a costly action that failed to reveal that one belonged to the good type. The separating equilib-rium collapsed into a pooling equilibequilib-rium in which no one (or few people) sent patriotic messages and no one (or few people) inferred from the failure to send such messages that a particular person would be an unreliable partner.

The model suggests that when tensions increase, people will signal more.

The point is not just that during wars, plagues, civil unrest, and massive social change, people will care more about their reputation, because they must trust each other more, and can rely less on the state. What is special about signaling is that as it becomes more important to send the right signal, behavior departs more and more from the sort of ordinary value-maximizing behavior in which people engage when they cooperate for the purpose of producing and sharing a surplus. Behavior becomes divorced from value-maximizing behavior, and so it appears strange to those looking back at it from later periods. Behavior becomes excessive, intense beyond what is justiﬁed by events, frenzied and yet ritualized, since everyone cares about not being misinterpreted. This is the way to understand the Red Scare after World War I, the widespread paranoia during the Great Depression, the McCarthy episode during the Cold War, and anti-immigrant chauvinism during every major war.

But the main interest of the cooperation game is in showing the various ways in which a law can have both behavioral and hermeneutic effects. (Recall from Chapter 2 that the hermeneutic effect of a law is its effect on people’s be-liefs about whether an action reveals a type, like whether informing on Com-munists is the action of a good type or a bad type.) First, the law can modify the cost of sending a signal. Second, the law can modify the payoffs from co-operation. Third, the law can modify people’s beliefs about the proportion of types in the population. Fourth, the law can modify the norm entrepreneur’s payoff from constructing a signal or the law can construct a signal itself.

These four effects in combination may produce a change in the equilibrium.

The behavior in this new equilibrium represents the law’s behavioral effect, and the beliefs in this equilibrium represent the law’s hermeneutic effect. The following examples illustrate these phenomena.

Honoring and Desecrating the Flag

One way to signal is to show respect for the ﬂag. I will call “saluting the ﬂag”

any of a range of actions, including actually saluting the ﬂag when the

oppor-tunity arises, displaying the flag, following the rituals that govern care of a flag, and so on. I will call “denigrating the flag” any gesture perceived as disre-spect for the flag, from ignoring the flag when one should show redisre-spect for it to burning it on the steps of the courthouse. Of course, flags are cheap, and putting one up on a flagpole is cheap, but the costs of observing all of the ritu-als surrounding flag owning and saluting quickly mount, and anyway this is just one of many signals that people use.

The cooperation game shows why enthusiasm for the ﬂag waxes and wanes.

In times of crisis the cost of being ostracized is so great that no one would risk the punishment that might result from deviation from an equilibrium in which everyone respects the flag. In times of security the cost of being ostra-cized is relatively low, so bad types do not bother to salute the flag. But if peo-ple will cooperate with peopeo-ple who do not salute the flag, good types will not incur the cost of saluting the flag. Therefore, no one will salute the flag. In times of tension, separating may occur, as only the good types find it profit-able to salute the flag.

Does it make sense for people to believe that those who fail to show respect for the flag are not good cooperative partners? It depends. In the United States a combination of accident and design has created an association in the minds of almost everyone between a particular pattern of stars and stripes and a clus-ter of beliefs. This clusclus-ter of beliefs includes at its core a commitment to the political structure of the United States of America. Because of accident and design, then, the flag is a focal point. If people see someone displaying the American flag on his house, they assume that he intends to express his com-mitment to the United States. In contrast, if people see someone displaying a flag that bears a design that they do not recognize, they will not understand the meaning that the person is trying to convey.

As noted earlier, because saluting the American flag has a relatively clear meaning, one does not think that a person displays a flag just because of a pe-culiar aesthetic taste. One believes that the person who displays the flag incurs costs in doing so, and because these costs are not exceeded by any intrinsic benefits, they must be incurred only for reputational purposes. Because the person who displays a flag could only do so for reputational gains if he has a low discount rate, that person must belong to the good type. He would make a good cooperative partner. It is important to emphasize that the reason that he would make a good cooperative partner is not that he necessarily has the patriotic beliefs that we associate with flag waving. The buyer of widgets cares little about whether the seller is a patriot or not, however that term is defined.

The buyer of widgets is attracted to the flag waver because the cost of flag waving implies that the flag waver has a low discount rate.

The disjunction between the two meanings of ﬂag waving—that one has

patriotic beliefs and that one has a low discount rate—produces some peculiar phenomena. Because burning a flag (and related conduct) is as costly as wav-ing a flag, burnwav-ing a flag can also serve to reveal that one has a low discount rate. Indeed, because burning a flag is a pithy expression of one’s rejection of the values of those who honor the flag, it is particularly expensive, as it re-duces one’s opportunities to deal with those who respect the flag. Therefore, burning the flag can be an effective signal if one belongs to a group that rejects the values of the majority. It is an effective signal because it is costly. It is, in addition, an effective commitment device because the resulting ostracism from the dominant community increases the cost of being ostracized from the subcommunity, and thus reduces the incentive to free-ride. In a separating equilibrium both the flag waver and the flag burner have low discount rates, and are good cooperators within their respective groups; the people who show no reaction to the flag one way or the other are the bad types in each group.

This phenomenon is not limited to ﬂags; it applies as well to the destruction of icons during the Byzantine Empire, the destruction of churches during the Reformation, the French Revolution, the Spanish Civil War, and the destruc-tion of the statues of communist heroes during the revoludestruc-tions of 1989–1991.

A separating equilibrium may be socially valuable or not, because saluting the ﬂag is an imperfect signal of the propensity to engage in cooperation.

Some people will show respect for the flag in order to obtain cooperative gains, but still cheat when the time is right. These people can show respect for the flag, then cheat, because they attach idiosyncratically low valuations to flag waving and other patriotic displays. Other people, who believe that patri-otism rightly understood requires non-participation in patriotic displays, will decline to show respect for the flag because of the intrinsic costliness of doing so, and the gains from cooperating with them will be lost. As long as error is low enough that people gain by cooperating only with those who salute the flag, the equilibrium will be sustained. A pooling equilibrium might be supe-rior or infesupe-rior to this state of affairs. If everyone salutes the flag because the cost of deviating is extremely high (say, in time of war), while the cost of the signal itself is relatively low, unnecessary and costly signaling will occur but at least the valuable patriotic people who don’t like waving the flag will not be ostracized (since even they will wave the flag). But notice that over time peo-ple will realize that some flag wavers must be bad types, and that flag waving is not a reliable signal of patriotism. Instead, flag waving becomes a hollow ritual, and this may drive good types over time to abandon this signal—and the norm entrepreneur to create new ones. This is an example of symbol transformation.

The state can influence the flag waving game in various ways. First, the state can modify the cost of saluting the flag. Consider a law that not only

for-bids the burning of flags but requires people to show respect for the flag. Sup-pose that before the law is passed, a separating equilibrium exists. Good types show respect for flags; bad types desecrate them. The law decreases the citi-zens’ cost of saluting the flag by increasing the cost of the substitutes, desecrat-ing or ignordesecrat-ing the flag. This change might create a pooldesecrat-ing equilibrium.

Now that it costs so much not to send the signal, bad types are forced to mimic the good types and send the signal.

However, the law could have a different effect on behavior. When the cost of not sending the signal rises, people may anticipate that everyone—good types and bad types alike—will show respect for the flag. This being the case, people no longer can rely on respect for the flag as an indicator of a person’s type. If a person’s loss from cooperating with a bad type is high enough, that person will refuse to cooperate with anyone when both types can afford to sa-lute the flag. But if the message senders anticipate this reaction, they will not bother to incur the cost of showing respect for the flag, even though the law has reduced this cost. Why incur this cost, if others are not going to respond by cooperating? To see this more clearly, suppose that rather than punishing people who fail to respect the flag, the law gives monetary rewards to those who do—tax breaks to those who display flags on their houses, show up to pa-rades, and so on—so that these actions are quite cheap (though still more

In document Law and Social Norms (Page 123-144)