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Article
The Problem of Social Order: What Should We Count as Law?
Journal of Law and Social Inquiry (2017)
  • Gillian K Hadfield
Abstract
This comment considers two recent contributions to the relatively small body of empirically-grounded
theoretical accounts of law: Fred Schauers The Force of Law and Richard McAdams The Expressive Powers of Law. Both Schauer and 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.
Keywords
  • rule of law,
  • legal theory,
  • coordination account of law,
  • law and coercion
Disciplines
Publication Date
Winter 2017
Citation Information
Gillian K Hadfield. "The Problem of Social Order: What Should We Count as Law?" Journal of Law and Social Inquiry Vol. 42 Iss. 1 (2017) p. 16 - 27
Available at: http://works.bepress.com/ghadfield/62/