Norms and Law: Putting the Horse before the Cart
Richman, Barak D., Duke Law Journal
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. (1) 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.
This Essay provides a taxonomy for the various mechanisms of private ordering. These assorted mechanisms, despite their important differences, have been conflated in large part because there has been a poor understanding of the particular institutional efficiencies and costs of the alternative systems. Specifically, enforcement costs have often been inadequately distinguished from procedural or dispute-resolution costs, and this imprecision has produced theories that inaccurately predict when private ordering will thrive and when the costs of private ordering overwhelm corresponding efficiencies. The implications for institutional theory are significant, as confusion in the literature has led to overappreciation of private ordering, underappreciation of social institutions, and Panglossian attitudes toward both lawlessness and legal development.
TABLE OF CONTENTS Introduction I. The Many Faces of Private Law A. Shadow of the Law B. Order Without Law II. The Varying Formality of Informal Enforcement III. Private Legal Systems--A Confusing Hybrid IV. Three Strikes for the Current Theory V. Private Legal Systems, Properly Understood Conclusion
Among the most salient features of modern courts are that they are expensive, slow, and inaccurate. Parties to a contract unsurprisingly anticipate many of these shortcomings and write contracts that can reduce the costs, delays, and mistakes that are often associated with enforcing agreements in court. Common strategies are to write contracts with detailed substantive provisions, choice-of-law clauses, and--especially--arbitration clauses.
Of course, even detailed contracts are costly and cumbersome to enforce, and parties frequently seek nonlegal mechanisms to enforce their agreements. Professor Stuart Macaulay is credited with triggering a renaissance of scholarly inquiry when he reported that businesspeople try to enforce agreements without resorting to legal coercion) Although the observation seems self-evident--perhaps only in retrospect--it marked the start of a growing scholarly fascination with the world of extralegal enforcement: law and society scholars inquired into the social structures that induced contractual compliance, (3) law and economics scholars examined the extralegal institutions that maintained economic governance, (4) and legal historians investigated how commercial agreements were sustained in premodern times in the absence of court ordering. …