Although most economic and positive political theory presumes the existence of an effective legal regime (protecting property rights or implementing legislative or judicial choices, for example), behavioral social science has devoted little systematic attention to the question of what constitutes distinctively legal order. Most social scientists take for granted that law is defined by the presence of a centralized authority capable of exacting coercive penalties for violations of legal rules. This unexamined presumption, however, leaves us with few tools in social science to answer key questions about the emergence and maintenance of legal order. A focus on centralized coercion fails to distinguish between spontaneous social order based on social norms and deliberate order structured by organized efforts to create and enforce rules in the absence of centralized coercion. In this paper we discuss several settings in which centralized coercive force is absent and yet social order relies on distinctively legal attributes and institutions. Drawing on a model developed in Hadfield & Weingast (2011), we use these settings to show how distinctively legal attributes and institutions work to coordinate decentralized collective punishment. We focus in particular on how legal institutions reduce ambiguity and solve incentive problems to support a decentralized equilibrium characterized by compliance with deliberately chosen rules. We thus sketch out how a social scientific account of law can help distinguish social norms from legal rules and identify the institutions that support legal order in a wide range of settings that do not presume the existence of centralized coercion.
Constitutional Law | Jurisprudence | Law and Economics | Politics
Date of this Version
Gillian K. Hadfield and Barry Weingast, "Collective Punishment: A Coordination Account of Legal Order" (March 2011). University of Southern California Law and Economics Working Paper Series. Working Paper 128.