Introduction: Conformity and Dissent,
Doing What Others Do,
Obeying (and Disobeying) the Law

excerpted from the book

Why Societies Need Dissent

by Cass R. Sunstein

Harvard University Press, 2003, paper

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A child, however, who had no important job and could only see things as his eyes showed them to him, went up to ) the carriage. "The Emperor is naked," he said.

Hans Christian Andersen, "The Emperor's New Clothes"

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Silence is a way of talking, of writing; above all, it is a way of thinking that obfuscates and covers up for the cruelty that should today be a central preoccupation of those who make talking, writing, and thinking their business. Breaking with this silence is the moral obligation of every Arab, in particular the "intellectuals" among us. Nothing else is of comparable importance.

Kanan Makiya, Cruelty and Silence: War, Tyranny, Uprising, and the Arab World

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Many of us display a great deal of independence. But most human beings, including many apparent rebels, are strongly influenced by the views and actions of others. Unchecked by dissent, conformity can produce disturbing, harmful, and sometimes astonishing outcomes.

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One reason we conform is that we often lack much information of our own, and the decisions of others provide the best information we can get.'° If we aren't sure what to do, we might well adopt an easily applied rule of thumb: Follow the crowd.

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Conformists follow others and silence themselves, without disclosing knowledge from which others would benefit.

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Conformists are often thought to be protective of social interests, keeping quiet for the sake of the group. By contrast, dissenters tend to be seen as selfish individualists, embarking on projects of their own. But in an important sense, the opposite is closer to the truth. Much of the time, dissenters benefit others, while conformists benefit themselves.

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The honor roll of famous dissenters includes Galileo, Martin Luther, Thomas Jefferson, Elizabeth Cady Stanton, Gandhi, and Martin Luther King, Jr.

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... I want to consider some of the most famous and most alarming experiments in modern social science." These experiments, conducted by the psychologist Stanley Milgam, involved conformity not to the judgments of peers but to the will of an experimenter. For better or for worse, these experiments almost certainly could not be performed today because of restrictions on the use of human subjects. But they are of independent interest because they have major implications for social influences on judgments of morality, not merely facts. In discussing those experiments, my ultimate aim is to connect them with some large issues in law and politics; but they are well worth examining for their own sake.

The experiments asked people to administer electric shocks to a person sitting in an adjacent room. Subjects were told, falsely, that the purpose of the experiments was to test the effects of punishment on memory. Unbeknownst to the subject, the victim of the electric shocks was a confederate and the apparent shocks were not real. They were actually delivered by a simulated shock generator, offering thirty clearly delineated voltage levels, ranging from 15 to 450 volts, accompanied by verbal descriptions ranging from "Slight Shock" to "Danger: Severe Shock." As the experiment unfolded, the subject was asked to administer increasingly severe shocks for incorrect answers, up to and past the "Danger: Severe Shock" level, which began at 400 volts.

In Milgram's original experiments, the subjects included forty men between the ages of 20 and 50. They came from a range of occupations, including engineers, high school teachers, and postal clerks. They were paid $4.50 for their participation-and were also told that they could keep the money no matter how the experiment went. The "memory test" involved remembering word pairs; every mistake by the confederate/victim was to be met by an electric shock and a movement to one higher level on the shock generator To ensure that everything seemed authentic, at the beginning of the experiment the subject was given an actual sample shock at the lowest level. But the subject was also assured that the shocks were not dangerous, with the experimenter declaring, in response to a prearranged question from the confederate, "Although the shocks can be extremely painful, they cause no permanent tissue damage. "59

In the original experiments, the victim did not make any protest until the 300-volt shock, which produced a loud kick, by the victim, on the wall of the room where he was bound to the electric chair. After that point, the victim did not answer further questions and was heard from only after the 315-volt shock, when he pounded on the wall again; he was not heard from thereafter, even with increases in shocks to and past the 400-volt level. If the subject indicated an unwillingness to continue, the experimenter offered prods of increasing firmness, from "Please go on" to "You have no other choice; you must go on." 60 But the experimenter had no power to impose sanctions on subjects.

What do you think subjects would do, when placed in this experiment? Most people predict that over 95 percent of subjects would refuse to proceed to the end of the series of shocks. When people are asked to make predictions about what subjects would do, the expected break-off point is "Very Strong Shock" of 195 volts. But in Milgram's experiment, every one of the forty subjects went beyond 300 volts. The mean maximum shock level was 405 volts. A strong majority-26 of 40, or 65 percent-went to the full 450 volt shock, two steps beyond "Danger: Severe Shock."

Later variations on the original experiments produced even more remarkable results. In those experiments, the victim expressed a growing level of pain and distress as the voltage increased. Small grunts were heard from 75 volts to 105 volts, and at 120 volts the subject shouted to the experimenter that the shocks were starting to become painful. At 150 volts the victim cried out, "Experimenter, get me out of here! I won't be in the experiment anymore! I refuse to go on! 1164 At 180 volts, the victim said, "I can't stand the pain." At 270 volts he responded with an agonized scream. At 300 volts he shouted that he would no longer answer the questions. At 315 volts he screamed violently. At 330 volts and more he was not heard.

In this version of the experiment, there was no significant change in Milgram's results: 25 of 40 participants went to the maximum level, and the mean maximum level was over 360 volts. In a somewhat gruesome variation, the victim said, before the experiment began, that he had a heart condition, and his pleas to discontinue the experiment included repeated reference to the fact his heart was "bothering" him as the shocks continued. This too did not lead subjects to behave differently. Notably, women did not behave differently from men in these experiments; they showed the same basic patterns of responses.

Milgram himself explained his results as involving obedience to authority, in a way reminiscent of the behavior of Germans under Nazi rule. Indeed, Milgram conducted his experiments partly to understand how the Holocaust could have happened. Milgram concluded that ordinary people will follow orders, even if the result is to produce great suffering in innocent others

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... one or two dissenters, willing to follow their conscience, can lead others to follow their conscience, too.

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The general lessons are straightforwardi When the morality of a situation is not entirely clear, most people will be influenced by someone who seems to be an expert, able to weigh the risks involved. But when the expert's questionable moral judgment is countered by reasonable people who are bringing their own moral judgments to bear, most people are unlikely to follow experts. They are far more likely to do as their conscience really dictates. Here, we can learn something about cruelty among teenagers, against oppressed groups, and on the battlefield.

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Now of course this is not all of the picture. Among some people, the law has a high degree of moral authority just because it is law. For them, the law's moral authority greatly exceeds the shared but unenacted view of many people. If this is true, the law's authority will extend well beyond that of Asch's unanimous confederates, and probably well beyond that of Milgram's experimenter as well. But we cannot fully appreciate law's moral authority without seeing it as intertwined with the social influences that I have been emphasizing.

This point suggests that the law's expressive power depends on whether law is thought to convey good information about what citizens should do, or about what most people think that citizens should do. These conditions are most likely to be met in democracies and least likely to be met in dictatorships. Hence, democracies, far more than tyrannies, can count on compliance without enforcement. In a democratic system, people know that much of the time the law captures the judgments of their fellow citizens. If the system is genuinely democratic, people know that the law is not an arbitrary imposition by a self-appointed elite. But when a tyrant issues an edict, people are likely to think that it represents the tyrant's will alone. Unless the tyrant is thought to be wise, his edict will carry no signal about what should be done. It follows that as a general rule, tyrants, far more than democratic rulers, need guns, ammunition, spies, and police officers. Their decrees will rarely be self-implementing. Terror is required. And if people are more likely to comply with the law when they perceive it to be fair, then tyrants have an additional problem. Those living under tyranny will not believe that the law is treating them fairly, and for this reason too noncompliance is likely.

In these circumstances, what do tyrants do? If a tyrant is able to create a culture in which people are fearful of random but horrendous punishments, compliance is more likely. The likelihood of compliance increases further if the dictator can create an army of private enforcers and informants, themselves fearful that a failure to report wrongdoing will result in punishment and even death.

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When a law no longer reflects citizens' values, people are unlikely to obey it without a great deal of enforcement activity. And when a law is so inconsistent with people's values that it cannot, in a democracy, be much enforced, it loses its legitimacy.

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Full disclosure of accurate information is a central goal of good institutions ...

Why Societies Need Dissent

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