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Norms and Law: Putting the Horse Before the Cart

Barak D. Richman

Duke University - School of Law

December 1, 2012

Duke Law Journal, Vol. 62, No. 3, 2012

Law and society scholars have long been fascinated with the interplay of formal legal and informal extralegal procedures. Unfortunately, the fascination has been accompanied by imprecision, and scholars have conceptually conflated two very different mechanisms that extralegally resolve disputes. One set of mechanisms might be described as the “shadow of the law,” made famous by seminal works by Professors Stewart Macaulay and Marc Galanter, in which social coercion and custom have force because formal legal rights are credible and reasonably defined. The other set of mechanisms, recently explored by economic historians and legal institutionalists, might be described as “order without law,” borrowing from Professor Robert Ellickson’s famous work. In this second mechanism, extralegal mechanisms — whether organized shunning, violence, or social disdain — replace legal coercion to bring social order and are an alternative to, not an extension of, formal legal sanctions.

One victim of conflating these mechanisms has been our understanding of industry-wide systems of private law and private adjudication, or private legal systems. Recent examinations of private legal systems have chiefly understood those systems as efforts to economize on litigation and dispute-resolution costs, but private legal systems are better understood as mechanisms that economize on enforcement costs. This is not a small mischaracterization. Instead, it reveals a deep misunderstanding of when and why private enforcement systems arise in a modern economy.

Number of Pages in PDF File: 28

Keywords: private ordering, private legal systems, reputational exchange

JEL Classification: K12, L14, L22

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Date posted: December 15, 2012  

Suggested Citation

Richman, Barak D., Norms and Law: Putting the Horse Before the Cart (December 1, 2012). Duke Law Journal, Vol. 62, No. 3, 2012. Available at SSRN: https://ssrn.com/abstract=2189490

Contact Information

Barak D. Richman (Contact Author)
Duke University - School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7244 (Phone)
919-613-7231 (Fax)

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