Volume 1, No. 8 (November, 1991), pp. 125-127

ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES by Robert C. Ellickson (Cambridge: Harvard University Press, 1991), 302 pp. $39.95.

Reviewed by Herbert Jacob, Department of Political Science, Northwestern University

Robert Ellickson has written a fascinating and important book that addresses concerns of political scientists, anthropolo- gists, legal scholars, economists, and sociologists. ORDER WITHOUT LAW analyzes the ways in which cattlemen and their neighbors avoid and settle disputes; it also develops a theoretical framework which seeks to clarify the circumstances under which various kinds of norms will be invoked by disputants.

Ellickson did his research in an unlikely site: Shasta County, California where he found cattlemen living under both open and closed range legal rules. This provided Ellickson a place to examine disputes involving ranchers about liability and fence-tending, for errant cattle have long created problems in locales where ranching is a major activity. Disputes of this sort are also the basis of much theorizing by Ronald Coase and his followers.

Ellickson began his research seeking to find how the law affected ranchers' perception of liability for cattle trespass. Much to his surprise, the law plays almost no role in disputes about cattle that wander into neighboring ranches or residential plots nor is it prominent in the ways in which neighbors divide the costs of fence building and maintenance. These matters, Ellickson discovered, are governed by work-a-day norms of neigh- borliness. The residents of Shasta County keep an informal ledger of debits and credits. When cattle cause damage, their owners are expected to provide an appropriate remedy -- moving them quickly and making good the damages. Small wrongs are simply entered into the ranchers' mental ledger for repayment in kind at some later time. When fences need to be built or main- tained, ranchers reach informal, oral agreements which involve payment in kind rather a contract that compensates in cash for materials or labor provided by a neighbor.

Only when cars and trucks hit cattle are more formal pro- cesses invoked. Ellickson attributes the use of law in these cases to the involvement of insurance companies, of strangers, and occasionally of large stakes. However, accident cases producing only minor damage are mostly settled informally without litigation.

Why is law so little used where so much law is on the books? Ellickson finds the answer in the host of informal norms govern- ing the lives of ranchers and their neighbors in Shasta County. They employ informal norms, rather than the law, because they constitute a close knit group with many ties to one another. Their mutual obligations and the availability of informal sanc- tions to enforce them keep almost all

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residents within the bounds of civility. Being a good neighbor is paramount because these men depend upon one another in myriad ways.

Ellickson turns to both a law and economics approach and particularly to game theory to elaborate his theory. People, he argues, seek to minimize "deadweight costs" and transaction costs. Ellickson defines deadweight costs as those greater than the optimal, cooperative solution in a two-person game. He then argues that in almost every instance the employment of informal norms reaches such an outcome.

One of the virtues of Ellickson's approach is that he disaggregates the concept of norms into five kinds of rules. Substantive rules define what conduct is to be rewarded or punished. Remedial rules set out whether reward or punishment is to be applied and what sorts will be employed. Procedural rules determine how those who impose sanctions will gather information and weigh it. Constitutive rules establish the internal struc- tures of the governors of the system. Controller-selecting rules establish how choices are made between alternative sets of rules, such as between those of the legal system and those of an infor- mal social system. Distinct calculations govern the invocation of each set of rules.

Ellickson fills his book with fascinating detail about disputing practices together with clearly written expositions of game theoretical models. He systematizes much of the work in the law and society movement about disputing. Yet this reader continues to have nagging doubts about how much in the end is captured by the web he spins.

A key variable for Ellickson is whether a group is tightly knit or not. He examines only disputes among those who allegedly are part of a closely knit group; he presumes that others will not avail themselves of informal norms but resort more to formal legal mechanisms. Yet nowhere does he propose how we distinguish the tightly knit from the not so tightly knit groups and where the breakpoint between them might occur. This is no trifling matter since two of his examples involve groups which by some criteria are not tightly knit at all. One concerns 19th century whalers who called many different places their home ports and had little interaction with one another except when they were on the same ship. The other example is the contemporary American professoriate which extends over many disciplines and across an entire continent. Moreover, what would he do with those who are seeking to escape from tightly knit bonds such as divorcing couples and dissolving business partnerships?

Just as crucial is the absence of a way of discerning when deadweight losses are minimized. Transaction costs are more readily calculable, but the reckoning of deadweight losses involves an abstract hypothetical transaction for which few empirical indicators seem available. In his examples, Ellickson asserts that the condition of minimizing deadweight losses occurs but he never demonstrates it.

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Despite these objections (which are not quibbles), ORDER WITHOUT LAW remains an extremely stimulating book. It represents a large step forward in the effort to understand the role that law plays in solving disputes and maintaining social order. This is a question that has not received much attention from political scientists who assume the centrality of law because they mostly study courts. Those who want to systematize their thinking about the larger question of how law intersects with other social control mechanisms would do well to begin with Ellickson's book.