Lawyers as Norm Entrepreneurs

- Rahul Singh and Prannv Dhawan†

In popular culture, a commercial lawyer is perceived as a self-oriented professional providing transactional services and legal advice. This article re-pivots this limited view—the role of lawyers is more appropriately understood as a ‘norm entrepreneur’. This pivot in perspective is pertinent in the present context where disciplinary dogmas are being dismantled to approach legal problems with an holistic approach.

Professor Cass Sunstein coined this term for those individuals who interact with the legal and social institutions to transform social norms by solving collective action problems. Norm entrepreneurship implies a gradual (or sometimes, sudden) change in the fundamental societal behavior and relations, thus giving shape to different social structures.

Lawyers as norm entrepreneurs can certainly be noteworthy. Consider for example the ‘norm bandwagon’ that resulted in the decriminalisation of homosexuality in India. Norm bandwagons are incremental transformations in popular norms wherein old norms are rejected in favor of the new. Remarkably, within a span of a few years the Supreme Court of India changed its view from ‘not its job’ to a unanimous decriminalisation verdict in Navtej Johar v Union of India. This happened in the face of strigent socio-legal activism and constitutional litigation.

This two-decade-long legal crusade did not merely involve mundane judicial procedure and adjudication, but also a widespread social churning and transformation of the social standards of ‘acceptable’ conduct and association. The legal arguments and the final decision highlighted the constitutional duty of treating all citizens with fraternity and dignity -- principles contained in the Preamble of the Indian constitution and were very close to Dr BR Ambedkar’s heart. In that context, it is important to realise that the egalitarian Constitution itself, through its chief architect, Dr BR Ambedkar, was an act of ‘norm cascade’ – a ‘rapid shift’ for hierarchical society.

Other remarkable changes in the law include the Real Estate (Regulation and Development) Act, 2016 wherein the parliamentary espousal of home buyers’ rights has been complimented by insolvency jurisprudence that is holding investors accountable for meeting their contractual obligations.

Conventional wisdom ties such norm entrepreneurship with human rights lawyers. Paradoxically, corporate or commercial lawyers are generally excluded from such a paradigm. Such belief is mistaken. If the basis of this classification is the impact on social norms, behaviour and structures, legal professions grappling with commercial law problems have a significant impact on re-framing of social norms.

Consider two emblematic instances -- technology and competition law experts are leading the ‘social’ conversation to transform the norms of regulating gigantic technology companies. As we see markets and societies grapple with the challenge of data protection in the digital economy, the governments are trying different regulatory approaches to appropriately safeguard public interest while facilitating technological development. These debates are further complicated because of the social consequences of the ‘curse of bigness’ that many of the technology companies are afflicted with. Consequently, global anti-trust norms and regulatory approaches are being rethought to achieve the outcome of free competition and markets.

Central to this approach is the questions of social disharmony and instability being caused due to fake news on social media. Corporate lawyers are at the forefront of deliberating and framing intermediary liability norms. The vibrant global debate on business and human rights is gradually leading to a change in the fundamental role of the corporation from the one seeking shareholder wealth maximization to a commitment towards the progressive environment, sustainability and governance [‘ESG’] goals. Similarly, the role of commercial lawyers in devising the legal policy framework for data protection in India has been instrumental in shifting the debate from the need for personal and non-personal data protection to appropriate institutional architecture for the same.

Interestingly, the re-pivoting of corporate law goals to ESG concerns is a result of massive transformation in corporate law scholarship. From the days of Milton Friedman’s ideas of shareholder primacy to the present-day ESG concerns, the jurisprudence of corporate law has traveled a long distance. Regardless of what one believes about the mot juste purpose of corporate entities, the flux in corporate law and jurisprudence stems from a sharp focus on quality of legal education being imparted in law schools around the world. The norm entrepreneurs were norm beginners at one stage of their lives. Society needs a vibrant debate amongst competing ideas about capitalism and the purpose of corporate entities. The norm entrepreneurs shape these debates and, are in turn, shaped by such ongoing debates.

To be sure, the norm entrepreneurship quality of lawyers is neither destined nor linear. In theory, it is possible to be regressive. As lawyers would say ‘it depends’ upon the status quo. The very nature of social norms is that they are more fragile than they appear to be. This can be explained with the example of amendments to commercial legislations like the Insolvency and Bankruptcy Code, 2016. The Code permits the Government to notify the entities to which the Code would apply. The Government of India brought personal guarantors to corporate debtors within the scope of the Code through a notification in 2019. The litigation on this notification and the Supreme Court judgment upholding its validity, have transformed the past commercial practice of not seeking recoveries from personal guarentors.

This fragility underscores the significance of a good quality legal education. Given the nature of the disciple of law, lawyers remain life-long self-learners. The COVID-19 pandemic has challenged the traditional university-based brick and mortar model of legal education. It’s bound to harbinger a hybrid (yet flat) model of self-learning where ‘norm entrepreneurs’ of both human rights and corporate law are likely to co-exist and co-learn.

† Rahul Singh is an Associate Professor at the NLSIU Bengaluru. Prannv Dhawan is a penultimate year student at the NLSIU Bengaluru.