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The Problem of Social Order: What Should We Count as Law?

Published online by Cambridge University Press:  27 December 2018

Abstract

In these two fine contributions to the relatively small body of empirically-grounded theoretical accounts of law, Fred Schauer and Richard McAdams focus on the two key elements of any legal system: the coordination of conduct that individuals have an incentive to engage in if they believe others will also, and the coercive force that is needed to deter conduct when coordination incentives are absent or insufficient. Both contributions deepen our understanding of the dynamics of coordination and coercion. But both also focus primarily on the concept of law as a set of rules generated and enforced exclusively by government. In this comment, drawing on recent work with Barry Weingast, I emphasize the importance of extending the scope of analysis to include settings in which governments are missing or weak and where legal order has not yet been achieved or stabilized—the challenge that faces many poor and developing countries around the world and the challenge that today's advanced legal regimes overcame historically. In our account, coordination and coercion are not substitute mechanisms, but are deeply linked: prior to the establishment of wealthy stable governments (and perhaps even in the presence of such governments), coercive penalties are delivered only if the decentralized application of punishment by ordinary individuals is successfully coordinated and incentivized.

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Copyright © American Bar Foundation, 2017 

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