Norms and Law: Putting the Horse Before the Cart
Abstract: Law & society scholars have long been fascinated with the interplay of formal legal and informal extralegal sanctions. Unfortunately, there has been a conceptual conflation of very different mechanisms that spur the reliance of extralegal mechanisms. One mechanism might be described as “the shadow of the law,” made famous by seminal works by Macaulay & Galanter, in which social coercion and custom have force because formal legal rights are credible and reasonably defined. The other mechanism, recently explored by economic historians and legal institutionalists, might be described as “social norms” or “order without law”, borrowing from 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. Various forms of arbitration contain elements that resemble both mechanisms, but the penumbra of systems has led to scholarly imprecision. Specifically, recent scholarship private legal systems—specifically, industry-wide systems of private law and private adjudication—has chiefly been put in the first category and understood as a system to economize on litigation and dispute resolution costs. Instead, it belongs in the second and should be understood as economizing on enforcement costs. The implications for institutional theory are significant, as confusion in the literature has led to both an over appreciation of private ordering, an under appreciation for social institutions, and Panglossian attitudes towards both lawlessness and legal development.
