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The Problem of Social Order: What Should We Count as Law?

Published online by Cambridge University Press:  27 December 2018

Gillian K. Hadfield
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Abstract

In these two fine contributions to the relatively small body of empirically-grounded theoretical accounts of law, Fred Schauer and Richard McAdams focus on the two key elements of any legal system: the coordination of conduct that individuals have an incentive to engage in if they believe others will also, and the coercive force that is needed to deter conduct when coordination incentives are absent or insufficient. Both contributions deepen our understanding of the dynamics of coordination and coercion. But both also focus primarily on the concept of law as a set of rules generated and enforced exclusively by government. In this comment, drawing on recent work with Barry Weingast, I emphasize the importance of extending the scope of analysis to include settings in which governments are missing or weak and where legal order has not yet been achieved or stabilized—the challenge that faces many poor and developing countries around the world and the challenge that today's advanced legal regimes overcame historically. In our account, coordination and coercion are not substitute mechanisms, but are deeply linked: prior to the establishment of wealthy stable governments (and perhaps even in the presence of such governments), coercive penalties are delivered only if the decentralized application of punishment by ordinary individuals is successfully coordinated and incentivized.

Type
Articles
Information
Law & Social Inquiry , Volume 42 , Issue 1 , Winter 2017 , pp. 16 - 27
Copyright
Copyright © American Bar Foundation, 2017 

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References

Acemoglu, D., and Robinson, J. A. 2012. Why Nations Fail: The Origins of Power, Prosperity, and Poverty. New York: Crown Business.Google Scholar
Carothers, T. 2006. Promoting the Rule of Law Abroad: In Search of Knowledge. Washington, DC: Carnegie Endowment for International Peace.Google Scholar
Carugati, F. M., Hadfield, G. K., and Weingast, B. R. 2015. Building Legal Order in Ancient Athens. Journal of Legal Analysis 7:291–324.Google Scholar
Collier, P. 2007. The Bottom Billion: Why the Poorest Countries Are Failing and What Can Be Done About It. Oxford: Oxford University Press.Google Scholar
Dixit, A. 2004. Lawlessness and Economics: Alternative Modes of Governance. Princeton, NJ: Princeton University Press.Google Scholar
Easterly, W. 2006. The White Man's Burden: Why the West's Efforts to Aid the Rest Have Done So Much Ill and So Little Good New York: Penguin Books.Google Scholar
Ellickson, R. 1991. Order Without Law: How Neighbors Settle Disputes. Cambridge, MA: Harvard University Press.Google Scholar
Finnis, J. 2011. Natural Law and Natural Rights, 2nd ed. Oxford: Oxford University Press.Google Scholar
Hadfield, G. K. 2017. Rules for a Flat World: Why Humans Invented Law and How to Reinvent it for a Complex Global Economy. Oxford: Oxford University Press.Google Scholar
Hadfield, G. K., and Bozovic, I. Forthcoming. Scaffolding: Using Formal Contracts to Build Informal Relations in Support of Innovation. Wisconsin Law Review.Google Scholar
Hadfield, G. K., and Weingast, B. R. 2012. What Is Law? A Coordination Model of the Characteristics of Legal Order. Journal of Legal Analysis 4 (2): 471–514.Google Scholar
Hadfield, G. K., and Weingast, B. R. 2013. Law Without the State: Legal Attributes and the Coordination of Decentralized Collective Punishment. Journal of Law and Courts 1 (1): 3–34.Google Scholar
Hadfield, G. K., and Weingast, B. R. 2014a. Constitutions as Coordinating Devices. In Institutions, Property Rights and Economic Growth: The Legacy of Douglass North, ed. Galiani, S. and Sened, I., 121–50. Cambridge: Cambridge University Press.Google Scholar
Hadfield, G. K., and Weingast, B. R. 2014b. Microfoundations of the Rule of Law. Annual Review of Political Science 17:21–42.Google Scholar
Hadfield, G. K., and Weingast, B. R. Forthcoming. Is Rule of Law an Equilibrium Without Private Ordering? NOMOS.Google Scholar
Hart, H. L. A. [1961] 2012. The Concept of Law, 3rd ed. Oxford: Oxford University Press.Google Scholar
Hoebel, E. [1954] 2006. The Law of Primitive Man: A Study in Comparative Legal Dynamics, 2nd ed. Cambridge, MA: Harvard University Press.Google Scholar
Macaulay, S. 1963. Non‐Contractual Relations in Business: A Preliminary Study. American Sociological Review 28:55–67.Google Scholar
Malinowski, B. [1926] 2013. Crime and Custom in Savage Society. New Brunswick, NJ: Transaction.Google Scholar
McAdams, R. H. 2015. The Expressive Powers of Law: Theories and Limits. Cambridge, MA: Harvard University Press.Google Scholar
Raz, J. 2009. The Authority of Law: Essays on Law and Morality. Oxford: Oxford University Press.Google Scholar
Waldron, J. 2011. The Rule of Law and the Importance of Procedure. NOMOS. New York: New York University Press.Google Scholar
Schauer, F. 2015. The Force of Law. Cambridge, MA: Harvard University Press.Google Scholar
United Nations, Commission on the Legal Empowerment of the Poor. 2008. Making the Law Work for Everyone. Somerset, NJ: Toppan.Google Scholar