9. Legal normativity and ideological advertising

9.1. Words to remember:

advertising	пропаганда, пропагандирование
distort	искажать
distorting	одурачивать
contends	спорить, утверждать
ex nihilo — "out of nothing "creation out of nothing"	Из ничего - ничто; ничто не возникает из ничего (Лукреций).
coercive	принудительный
incumbent	обязательный, должный
insight	разумение, усмотрение

9.2. Read the text.

I have argued that legal normativity, which turns subjective commands into objective norms, is a fiction created by politicians and educators to validate state power. In this section I will discuss legal normativity as a form of ideological advertising developed by state power in order to increase the demand for law-abiding. Ideological advertising can perform various distorting or mystifying functions.

One of these is to conceal the fact that legal and political conventions are self-validating. Peter Berger contends that the basic recipe of social legitimation is as follows:

— Let the institutional order be so interpreted as to hide, as much as possible, its constructed character.

— Let that which has been stamped out of the ground ex nihilo appear as the manifestation of something that has been existent from the beginning of time, or at least from the beginning of this group.

— Let the people forget that this order was established by men and continues to be dependent upon the consent of men.

Similarly, the ideology of legal normativity is built on the fiction that coercive orders can generate valid obligations. This is an ideological fiction because the assumption that political enactments generate inherently prescriptive entities (i.e., “obligations” or “reasons”), as something different from the assumption that agents believe or pretend to believe that commands give rise to such entities, is unnecessary for the explanation of social behavior; and because the assumption’s chief role is to justify the exercise of political power, rather than to subject it to rational criticism. This contention about legal normativity is consistent with claiming that sometimes political ideologies include true cognitive contents.

There are three fundamental reasons why it might be profitable for the state to invest in ideological advertising.

First, the state’s monopoly power is never perfect. On the one hand, even after nationalization of protective services, there often are available private ways of achieving the same results (black markets, informal norms, private protective agencies, private arbitrators, etc.), or foreign suppliers of public goods (e.g., neighboring countries that offer favorable legal conditions to attract investments). The ideology of legal normativity increases the demand for formal domestic law and the formal methods of adjudication. On the other hand, there is usually extrasystemic political competition from various groups who try to obtain the constitutional power. The incumbent groups or coalitions might gain from investing in advertising if they need popular support to arrest revolutionary tendencies. In a monarchy, for instance, there might be revolutionary competitors who want to establish a republic.

Second, advertising can be helpful for the internalization of legal norms.As James Coleman rightly remarks, “internalization of a norm will mean that an individual comes to have an internal sanctioning system which provides punishment when he carries out an action proscribed by the norm or fails to carry out an action prescribed by the norm In fact, advertising can shift agents’ preferences in ways conducive to social efficiency, or to the welfare of the ruling groups, as the case may be. This is precisely Hume’s great insight. In turn, internalization of legal norms can decrease monitoring and enforcements costs.