Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01944.x |
| Date | 01 March 1994 |
| Published date | 01 March 1994 |
| Author | Richard Ingleby |
REVIEWS
Robert
C.
Ellickson,
Order Without
Law:
How
Neighbors Settle Disputes,
Cambridge: Harvard University Press, 1991, 302 pp, hb f31.95.
This fascinating text has three sets of aims. The first, covered in ‘Part
I:
Shasta
County,
’
is an empirical description
of
dispute resolution strategies employed by
inhabitants of Shasta County in relation to damage caused by cattle. ‘Part
11:
A
Theory of Norms’ explores the respective capacities of various socio-legal theories
to explain the phenomena revealed by Part
I.
‘Part
111:
The Future
of
Norms’
examines the implications of the previous two Parts for the appropriate
relationship between statute and judicial precedent and other sources of normative
order.
Shasta County, Northern California, the fieldwork site from which the data in
Part
I
are drawn, was selected to test the ‘Coase Theorem.’ This influential (and
controversial) law and economics doctrine suggests that, in the absence
of
transaction costs, changes in legal liability influence the distribution but not the
allocation of resources. The importance of Shasta County in relation to the validity
of this Theorem is that it contains areas with different rules governing the liability
of cattle owners for damage caused by their trespassing cattle:
In open range an owner of cattle is typically not legally liable for damages stemming from his cattle’s
accidental trespass upon unfenced land
. . .
A
closed-range ordinance makes a cattleman strictly liable
. .
.
for any damage his livestock might cause while trespassing within the territory described by the
ordinance (p
3).
Ellickson challenges the validity of the Coase Theorem, demonstrating that
adjacent landowners distribute resources not in accordance with the rules of law
which govern their liability
vis-d-vis
each other, but in accordance with other
norms. One reason for this is that the relevant population is simply ignorant of the
law. Despite the frequency with which cattle strayed from one property to another,
Ellickson ‘found no one
. . .
with a complete working knowledge of the formal
trespass rules’ (p 49). Rather than bargaining from the endowments bestowed on
them by formal law, landowners generally maintained order by escalating through
‘(1)
self-help retaliation; (2) reports to county authorities; (3) claims for
compensation informally submitted without the help of attorneys; and (4) attorney-
assisted claims for compensation’ (p
57;
see also pp 143, 214). Likewise, in
relation to the question of how neighbours should distribute the costs
of
shared
fencing, there was little knowledge of the statutory provisions, and the norms by
which costs were actually shared differed from the formal legal rules. Ellickson
reveals a practice ‘for adjoining landowners to share fencing costs in rough
proportion to the average density of livestock present on the respective sides of the
boundary line’
(p
71; see also pp 78- 79). Not only were the locals ignorant of the
legal rules, but they were found to make a deliberate decision to ‘resist absorbing
information that is inconsistent with their folklore’ (p 115).
Ellickson writes in the context of what he describes as the ‘mutual lack of
respect, even contempt’ (p
7)
with which law-and-economics and law-and-society
0
The Modem Law Review Limited
1994
(MLR
57:2,
March). Published by Blackwell Publishers.
108
Cowley Road, Oxford
OX4
1JF
and
238
Main Street, Cambridge, MA
02142,
USA.
330
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