Order without Law: How Neighbors Settle Disputes

by Robert C. Ellickson

Overview

In Order without Law, Robert Ellickson shows that law is far less important than is generally thought. He demonstrates that people largely govern themselves by means of informal rules—social norms—that develop without the aid of a state or other central coordinator. Integrating the latest scholarship in law, economics, sociology, game theory, and anthropology, Ellickson investigates the uncharted world within which order is successfully achieved without law.

The springboard for Ellickson’s theory of norms is his close investigation of a variety of disputes arising from the damage created by escaped cattle in Shasta County, California. In “The Problem of Social Cost”—the most frequently cited article on law—economist Ronald H. Coase depicts farmers and ranchers as bargaining in the shadow of the law while resolving cattle-trespass disputes. Ellickson’s field study of this problem refutes many of the behavioral assumptions that underlie Coase’s vision, and will add realism to future efforts to apply economic analysis to law.

Drawing examples from a wide variety of social contexts, including whaling grounds, photocopying centers, and landlord–tenant relations, Ellickson explores the interaction between informal and legal rules and the usual domains in which these competing systems are employed. Order without Law firmly grounds its analysis in real-world events, while building a broad theory of how people cooperate to mutual advantage.

Product Details

ISBN-13:	9780674263277
Publisher:	Harvard University Press
Publication date:	03/15/1994
Sold by:	Barnes & Noble
Format:	eBook
Pages:	316
File size:	777 KB

Table of Contents

Introduction

Part I. Shasta County

1. Shasta County and Its Cattle Industry

2. The Politics of Cattle Trespass

3. The Resolution of Cattle-Trespass Disputes

4. Who Pays for Boundary Fences?

5. Disputes Arising out of Highway Collisions Involving Livestock

6. The Effects of Closed-Range Ordinances

Part II. A Theory of Norms

7. The System of Social Control

S. Shortcomings of Current Theories of Social Control

9. The Puzzle of Cooperation

10. A Hypothesis of Welfare-Maximizing Norms

11. Substantive Norms: Of Bees, Cattle, and Whales

12. Remedial Norms: Of Carrots and Sticks

13. Procedural and Constitutive Norms: Of Gossip, Ritual, and Hero Worship

14. Controller-Selecting Norms: Of Contracts, Custom, and Photocopies

Part III. The Future of Norms

15. Testing the Content of Norms

16. Conclusions and Implications

Appendix. Research Methods

Index

What People are Saying About This

Robert Ellickson shows that people govern themselves largely by means of informal rules--social norms--without the aid of a state or other central coordinator. Integrating the latest scholarship in law, economics, sociology, game theory, and anthropology, Ellickson investigates the uncharted world within which order is successfully achieved without law.

Editorial Reviews

Drawing examples from a wide variety of social contexts, including whaling grounds, photocopying centers, and landlord-tenant relations, Ellickson explores the interaction between informal and legal rules. He closely examines a variety of disputes arising from the damage created by escaped cattle in Shasta County, California and develops a theory of norms that refutes many accepted behavioral assumptions. Annotation c. Book News, Inc., Portland, OR (booknews.com)

Booknews

Robert Ellickson has written a fascinating and important book that addresses concerns of political scientists, anthropolo- gists, legal scholars, economists, and sociologists. ORDER WITHOUT LAW analyzes the ways in which cattlemen and their neighbors avoid and settle disputes; it also develops a theoretical framework which seeks to clarify the circumstances under which various kinds of norms will be invoked by disputants. Ellickson did his research in an unlikely site: Shasta County, California where he found cattlemen living under both open and closed range legal rules. This provided Ellickson a place to examine disputes involving ranchers about liability and fence-tending, for errant cattle have long created problems in locales where ranching is a major activity. Disputes of this sort are also the basis of much theorizing by Ronald Coase and his followers. Ellickson began his research seeking to find how the law affected ranchers' perception of liability for cattle trespass. Much to his surprise, the law plays almost no role in disputes about cattle that wander into neighboring ranches or residential plots nor is it prominent in the ways in which neighbors divide the costs of fence building and maintenance. These matters, Ellickson discovered, are governed by work-a-day norms of neigh- borliness. The residents of Shasta County keep an informal ledger of debits and credits. When cattle cause damage, their owners are expected to provide an appropriate remedy -- moving them quickly and making good the damages. Small wrongs are simply entered into the ranchers' mental ledger for repayment in kind at some later time. When fences need to be built or main- tained, ranchers reach informal, oral agreements which involve payment in kind rather a contract that compensates in cash for materials or labor provided by a neighbor. Only when cars and trucks hit cattle are more formal pro- cesses invoked. Ellickson attributes the use of law in these cases to the involvement of insurance companies, of strangers, and occasionally of large stakes. However, accident cases producing only minor damage are mostly settled informally without litigation. Why is law so little used where so much law is on the books? Ellickson finds the answer in the host of informal norms govern- ing the lives of ranchers and their neighbors in Shasta County. They employ informal norms, rather than the law, because they constitute a close knit group with many ties to one another. Their mutual obligations and the availability of informal sanc- tions to enforce them keep almost all Page 126 follows: residents within the bounds of civility. Being a good neighbor is paramount because these men depend upon one another in myriad ways. Ellickson turns to both a law and economics approach and particularly to game theory to elaborate his theory. People, he argues, seek to minimize "deadweight costs" and transaction costs. Ellickson defines deadweight costs as those greater than the optimal, cooperative solution in a two-person game. He then argues that in almost every instance the employment of informal norms reaches such an outcome. One of the virtues of Ellickson's approach is that he disaggregates the concept of norms into five kinds of rules. Substantive rules define what conduct is to be rewarded or punished. Remedial rules set out whether reward or punishment is to be applied and what sorts will be employed. Procedural rules determine how those who impose sanctions will gather information and weigh it. Constitutive rules establish the internal struc- tures of the governors of the system. Controller-selecting rules establish how choices are made between alternative sets of rules, such as between those of the legal system and those of an infor- mal social system. Distinct calculations govern the invocation of each set of rules. Ellickson fills his book with fascinating detail about disputing practices together with clearly written expositions of game theoretical models. He systematizes much of the work in the law and society movement about disputing. Yet this reader continues to have nagging doubts about how much in the end is captured by the web he spins. A key variable for Ellickson is whether a group is tightly knit or not. He examines only disputes among those who allegedly are part of a closely knit group; he presumes that others will not avail themselves of informal norms but resort more to formal legal mechanisms. Yet nowhere does he propose how we distinguish the tightly knit from the not so tightly knit groups and where the breakpoint between them might occur. This is no trifling matter since two of his examples involve groups which by some criteria are not tightly knit at all. One concerns 19th century whalers who called many different places their home ports and had little interaction with one another except when they were on the same ship. The other example is the contemporary American professoriate which extends over many disciplines and across an entire continent. Moreover, what would he do with those who are seeking to escape from tightly knit bonds such as divorcing couples and dissolving business partnerships? Just as crucial is the absence of a way of discerning when deadweight losses are minimized. Transaction costs are more readily calculable, but the reckoning of deadweight losses involves an abstract hypothetical transaction for which few empirical indicators seem available. In his examples, Ellickson asserts that the condition of minimizing deadweight losses occurs but he never demonstrates it. Page 127 follows: Despite these objections (which are not quibbles), ORDER WITHOUT LAW remains an extremely stimulating book. It represents a large step forward in the effort to understand the role that law plays in solving disputes and maintaining social order. This is a question that has not received much attention from political scientists who assume the centrality of law because they mostly study courts. Those who want to systematize their thinking about the larger question of how law intersects with other social control mechanisms would do well to begin with Ellickson's book.

Herbert Jacob

[A] fascinating book… Ellickson’s clean prose and considerate rhetorical style are refreshing.

Land Economics - William Fischel

Uses theory and ethnography to explain norms in a manner that sociologists would do well to imitate. [Ellickson] presents evidence in an objective style that allows readers to reach their own verdicts, and his skillful storytelling accentuates his theoretical acumen.

Jason Jimersonn Journal of Sociology

A welcome addition to the new literature on conflict, law, and informal social control in contemporary societies… [Order without Law] constitutes one of the most eloquent and powerful attacks yet on the widespread belief that government lies at the heart of social order in the modern world.

Contemporary Sociology - M. P. Baumgartner

This immensely interesting, wide-ranging, well-written, learned, and contentious book—a superb analysis of extralegal regulation—will command a large readership among academic lawyers and social scientists, and may in the fullness of time come to be regarded as a classic of interdisciplinary legal scholarship.

Richard A. Posner

Uses theory and ethnography to explain norms in a manner that sociologists would do well to imitate. [Ellickson] presents evidence in an objective style that allows readers to reach their own verdicts, and his skillful storytelling accentuates his theoretical acumen.

American Journal of Sociology - Jason Jimerson

"[A] fascinating book... Ellickson's clean prose and considerate rhetorical style are refreshing.
— William Fischel

Land Economics

Uses theory and ethnography to explain norms in a manner that sociologists would do well to imitate. [Ellickson] presents evidence in an objective style that allows readers to reach their own verdicts, and his skillful storytelling accentuates his theoretical acumen.
— Jason Jimerson

American Journal of Sociology

A welcome addition to the new literature on conflict, law, and informal social control in contemporary societies... [Order without Law] constitutes one of the most eloquent and powerful attacks yet on the widespread belief that government lies at the heart of social order in the modern world.
— M. P. Baumgartner

Contemporary Sociology