44 Pages Posted: 11 Nov 2010 Last revised: 12 Nov 2013
Date Written: September 2012
Legal philosophers have long debated the question, what is law? But few in social science have attempted to explain the phenomenon of legal order. In this paper we build a rational choice model of legal order in an environment that relies exclusively on decentralized enforcement, such as we find in human societies prior to the emergence of the nation state and in many modern settings. We begin with a simple set of axioms about what counts as legal order. We then demonstrate that we can support an equilibrium in which wrongful behavior is effectively deterred by exclusively decentralized enforcement, specifically collective punishment. Equilibrium is achieved by an institution that supplies a common logic for classifying behavior as wrongful or not. We demonstrate that several features ordinarily associated with legal order such as generality, impersonality, open process and stability can be explained by the incentive and coordination problems facing collective punishment.
Keywords: rule of law, philosophy of law, coordinated punishment, legal origins
Suggested Citation: Suggested Citation
Hadfield, Gillian K. and Weingast, Barry R., What is Law? A Coordination Account of the Characteristics of Legal Order (September 2012). The Journal of Legal Analysis, Vol 4. Available at SSRN: https://ssrn.com/abstract=1707083
By Orin Kerr
By John Finnis