Law and Order without Coercion

By Cole, G. Marcus | Journal of Private Enterprise, Spring 2007 | Go to article overview

Law and Order without Coercion

Cole, G. Marcus, Journal of Private Enterprise

Much of the contemporary discussion regarding law and public policy focuses on how government ought to address important issues. From global warming to technological innovation to corporate finance, voters and policy-makers alike share the belief that the tools of government ought to be brought to bear on all of the important matters of our times.

Virtually no attention is given public policy debates, however, to the question of whether government ought to address these important issues. In fact, the larger and more complex the issue, the more policy-makers and opinion leaders assume that government provides the only mechanism for addressing such concerns. Two types of "market failure," in particular, commonly serve as justifications for governmental intervention into and regulation of otherwise private markets and matters. Private market mechanisms are said to fail where society seeks the provision of what are commonly called "public goods," and also where the cooperation of large groups of individuals are necessary in order to accomplish some task. These latter problems, frequently termed "collective action" problems, can coincide with the problem of public goods provision, but can also arise independently of them.

These two typical justifications for imposition of regulation, the "Public Goods" justification and the "Collective Action" justification, have largely been embraced by neoclassical economists, and have been completely unchallenged by legal academics. Nevertheless, the question as to whether and to what extent private actors can regulate their own behavior without government coercion is an increasingly important one.

This Article attempts to answer this question by surveying the literature on private ordering and self-regulating human systems. As such, it demonstrates the many circumstances under which human beings have provided kw and order to govern their affairs without the monopolized use of coercive physical force or violence characteristic of, and indeed defining, governmental regulation.

This Article proceeds in three parts. Part I outlines the commonly relied-upon justifications for the use of coercive governmental force to regulate human affairs. These include the "public goods" justification, as well as the "common pool" justification. The conditions surrounding public goods and common pools are assumed to require governmental intervention and regulation, and typical examples of these are explored here. Part I concludes with an explication of the responses to the public goods and common pool justifications offered by Austrian school and classical economists, which provide logical albeit theoretical market alternatives to regulatory solutions.

Part II bridges theory with reality, by exploring the many and varied historical examples of private order solutions to what neoclassical economists refer to as public goods or common pool problems. In this part, the literature expositing these examples is surveyed, detailing the rise, operation, and decline of sophisticated and complex private legal orders of the past. These orders are significant examples, in part because their functioning was often only interrupted by state action and resort to the government's monopolistic use of legitimized physical force.

Part III brings theory and practice into the present, with an examination of just a few of the many private legal orders that make modern life possible or prosperous. Unlike many of the historical .examples, these modern private legal orders frequently operate "in the shadow of the law" provided by governmental entities. Nevertheless, this survey of contemporary private legal orders illustrates the ways in which many institutions and industries regulate their own members' behavior and affairs, without resort to the coercive use of physical force entailed by governmental regulation.

Part IV explores the future of private ordering, by surveying the literature proposing innovative market-based solutions to problems commonly thought to be the province of governmental regulators. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)


1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited article

Law and Order without Coercion


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.