RFC re "Order Without Law" (Ellickson)

Ellickson, Order Without Law (1991)

This book explains how Robert Ellickson changed his mind about the role of law in providing order in society. He'd started from a premise for which Ronald Coase is famous: that people start where the legal system places them and negotiate from there to mutually useful outcomes. Coase presented a now famous theory that if transaction costs were zero, a change in the legal rules would have no effect because people would just negotiate to the allocation of resources that existed before the law was changed.

On the ground in Shasta County, California, Ellickson studied the ways that real-life ranchers resolved disputes over wandering cattle on land that was "open range," where branded cattle roamed free and unfenced until rounded up for market. Sometimes they ate up a neighbor's hay, broke his fences, or blocked roads, sometimes triggering auto accidents. Most of these disputes were resolved without resort to law, and often were resolved in a way contrary to the legal rules.

His theory, presented and supported in his book, is that people would often resolve disputes by applying community norms, without paying any attention to the legal rules that apply to those disputes. And that this occurs even though they have contrary interests and do not have alturistic motives. Their methods and results were often actually contrary to what the legal rules called for, and the community often actively resisted and discouraged those who "went to law" to resolve certain disputes.

Order Often Arises Spontaneously

What Ellickson found surprised him: "Order often arises spontaneously. Although many other writers have recognized this point, it remains counterintuitive and cannot be repeated too often. * * * According to [Thomas] Hobbes, without a Leviathan (government) to issue and enforce commands, all would be endless strife. The Shasta County evidence shows that Hobbes was much too quick to equate anarchy with chaos. Many entitlements, especially workaday entitlements, can arise spontaneously. People may supplement, and indeed preempt, the state's rules with rules of their own." Ellickson, p. 4.

Ellickson's analysis divided the rules that emerge in complex societies into five overlapping categories (and their origins) : personal ethics (self-discipline), contracts (agreement), norms (social effects), organization rules (non-governments), and law (government). Each of these categories has its own type of sanction, either positive or negative: self-sanctions, personal self-help, vicarious self-help, organization enforcement and state enforcement.

What Ellickson found in Shasta County was that when residents resolved their disputes among themselves, they typically did so in total ignorance of their legal rights, and applied societal norms that effectively supplanted legal rights and obligations. He found that self-help enforcement was common, even escalating to violence against offending cattle if the owner did not respond to less stringent self-help sanctions. He also found that they rarely used attorneys to resolve disputes. Under these circumstances, discernable norms emerged that were well known and followed by Shasta County residents.

Theories of Close-Knit Groups

Ellickson presented his own theory based upon the actual behavior observed in his and others' studies of the emergence of norms among groups:
"Members of a close-knit group develop and maintain norms whose content serves to maximize the aggregate welfare that members obtain in their workaday affairs with one another." Stated another way, "the hypothesis predicts that members of tight social groups will informally encourage each other to engage in cooperative behavior." Ellickson, p. 167.

When he refers to "maximizing welfare" he means getting to the highest possible group aggregate of all outcomes that people value, not just commodities but also intangbles "such as parenthood, leisure, good health, high social status, and close personal relationships." Id. p. 170.

By "workaday affairs" he does not include two kinds of foundational rules: the ground rules of property ownership and exchange (e.g., no deliberate theft or vandalism, no murder) and purely distributive norms like that encouraging charity.

By "close-knit" he means a group in which "informal power is broadly distributed among group members and the information pertinent to informal control circulates easily among them." Id. p. 178. A close-knit group is one in which the members can expect to interact in the future, they know each other's history and everyone will "have their day" when the power tables will be turned.

The Shadow of the Future

Other scholars of game theory, notably Axelrod, have documented the importance of this "shadow of the future:" each member's knowledge that there will come a time when the other member(s) will have the opportunity to make "get even" for past behavior (good or bad). The knowledge of these unavoidable future encounters has a distinct effect in encouraging cooperation, because those that don't cooperate know that they are likely to be punished by one or more of their peers in the future. This situation is summed up in the common caution: "remember, I have to work with these people every day."

But that knowledge alone is not enough to trigger the emergence of cooperative behavior. The other essential ingredient is some information about the past and the present. Close-knit groups with many links help members maintain a gossip network through which truthful reports move, sharing how certain members behaved in certain circumstances in the past.

Close-knittedness does not require a group to have exclusive claim on one member; one can simultaneously be a member of several close-knit groups (e.g. a work group, a residence group and a political group). Also, even a large group can be close-knit, although small groups are more likely to have higher quality of gossip, reciprocity of power and ease of enforcement.

In his book Ellickson went on to explore how his theory seemed to explain various social norms that developed among various groups that operated essentially outside of the reach of formal law, such as those among cattlemen in Shasta County and those among 18th century whalers.

He went on for several chapters discussing the various types of norms and the various ways in which group members can exert positive sanctions (rewards) and negative sanctions (punishments) on members whose behavior exceeded or fell below group norms.

Law is Expensive, and Community Norms More Expeditious

Ellickson found that people may ignore "law" because they realize that resort to formal legal processes is expensive, especially for small-stakes matters, and "going to law" often makes social relationships worse. Another reason is that they have more expeditious means to obtain order, when they are in close-knit groups that can govern minor problems using informal norms enforced by means such as truthful negative gossip and mild physical reprisals. When those conditions apply, "informal social controls are likely to supplant law." Id. p. 282.

Formal law does have a role to play, in enabling such informal controls. Writes Ellickson: "To achieve order without law, people must have continuing relationships, reliable information about past behavior, and effective countervailing power. * * * Legal rules can influence all these attributes of social structure and thereby promote -- or impede -- informal cooperation." Id. p. 284.

As an example, Ellickson points to land laws; those that encourage subdivision of land among multiple owners reinforces their realization that they will be long-term neighbors, and divides the interest in keeping things up, increasing among them the likelihood of cooperation. The ability to sell land to another also enhances cooperation by giving an owner an interest in maintaining the value of the property even after she has sold and left. Law can also encourage symmetries of power and discourage assymetric situations, in which one or a few parties have disproportionate power over others, leaving an imbalance that allows those "on the bottom" little opportunity to pay back uncooperative behavior.

Requests for Comment:

Have you read Ellickson's book or about these theories elsewhere?

Do they make sense to you, or seem to be bogus?

If there is something to them, in what ways do you see these theories possibly applied in SL?

Think of some groups or communities in SL. Are those that seem to be self-organized the ones that are more "close-knit" as Ellickson describes them?

If Ellickson is right, what characteristics would one look for or try to install in a SL community or group if one wanted to increase informal enforcement of useful societal norms, such as land use zoning, or avoidance of certain conducts?

What does Ellickson's theory say to you about approaches to setting up or joining new groups or land parcels in SL?

Very interesting book. I'm currently reading chapter 9,The Puzzle of Cooperation. Ellickson's research suggests that adherence to community norms is much more likely when the individual is a long term resident of the area. This has some applicability to SL, and we see it working well in communities such as Boardman and Taber. However Shasta County is FL -- no alts, no internet anonymity. Those two factors emasculate the 'shadow of the future' effect you mention.

One of Ellickson's observations triggers skepticism. He uses the term 'true gossip'. My attitude toward gossip in FL is negative. FL gossip appears to be biased to present the speaker in the best possible light, while passing off as fact some opinion that a third party is a bitch or whatever. The gossiper appears to be trying to rally more people to support the self-serving version of reality, and there's some kind of group mutual reinforcement going on that encourages people to join a particular partisan slant. It sounds about as reliable as marketing hype, and my reaction is, 'I'm supposed to care about that?'

So it's hard to square my FL impressions with the notion of 'true gossip'. Roughly analogous to 'true television commercials'.

Though I have not read the book, one aspect to consider here is the common background, in terms of family and schooling, that many of these people would have had. It would not surprise me that older residents were strongest in supporting the cooperation and order - at one time schools taught courses in ethics and civics, something that seems to have been supplanted by various versions of basketweaving.

Where there is a common background in terms of respect for individuals and a broad understanding of legal principles, if not the minutae that lawyers encrust the law with, it is likely that cooperative behaviour will emerge. This should not be taken to mean that anarchy is viable - transplant the situation to Bosnia, with many ethnic and religious animosities, and you would not expect the same kind of behaviour to occur.

In terms of "true gossip", I find that more than a bit of an oxymoron. Those who use gossip to further their agendas very seldom feel bound by the truth - I can attest strongly to that, having been the victim of much malicious and untrue gossip in the work environment. In a situation where people are just chatting, with no ulterior motives, there may be a process of passing only useful information. All it takes is one troublemaker to poison the whole process and spread rancor and disinformation.

I believe that a subset (perhaps small) of gossip is that which is "true." Distinguishing the true part from the false part can be a challenge, but I think what Ellickson refered to is what goes on in any community. People talk, and through informal channels ... over the back fence, in the Elks Club bar, at the church sewing circle, people exchange information about what is going on in a close knit community. Much of that gossip is true information.

When that information is true and perceived as true, it can have impact on behavior. Even if the person about whom the true story is told doesn't care what others think of him, others may modify their behavior around him, may protect themselves more in transactions, may withhold social benefits.

Whether you care what others think, if you are a realist, you know that your behavior may have those secondary social impacts on you. As a result, you may consciously avoid pissing people off so that they don't quietly retaliate. All of which tends to help shape behavior of the whole community toward a cooperative mode of observing social norms.

At least that is Ellickson's theory, which he found was supported by the experience among ranchers and their neighbors in Shasta County, and which was consistent with the earlier predictions and findings of Axelrod and Coase.

One of the problems I always had with the book is that he looks a very narrow slice of a very big pie. The problems of open range cattle grazing are not unique to shata and not unique to our era.

In looking at the present day problem, we see this in counterpoint only to the firmly established system of legal regulation. The historina in my recalls that when areas were much more fontier, a lot of men were killed in slef-help range wars, that refelcted societal norms. Personally I find SL more akin to the frontier, with under developed legal stadards and not shata county, which counterpoints custom to litigation.

Legal dispute resolution is meant to be an alternative to settleing things with the gun.

Ellickson's first section does look at one small empirical study, using the anecdoctal approach of a sociologist. While it is just a small slice, all empirical research is composed of manageable experiments that add to the whole body of knowledge. His study confirmed what Coase predicted, so has value though limited in scope.

The latter sections attempted to build a more general theory of norms based in part on his and others' studies.

I think the interesting thing about his empirical study is that even in modern times, the residents of Shasta County relied on non-legal methods of resolving issues, rather than formal legal methods. Also, the outcomes were often contrary to what the law indicated it "should" be. Part of this was due to the transaction costs of "going to law," and part was due to the fact that the legal "rules" ran contrary to the local societal norms.

I agree that SL is more like the "frontier," where dispute resolution can get ugly and messy. Yet Ellickson provides some theories that might help us evaluate alternatives.