On the Institutional Foundations of Law: The Insufficiency of Custom and Private Ordering

Abstract

Some theorists propose that systems of law largely arise spontaneously, as an extension of customary rules. At most, the role of the state is to endorse customarylaws and add some minimal general rules. Some see no essential difference between custom and law. By contrast, this paper argues that law has properties that cannot be reduced to custom or private ordering alone. Customary mechanisms are insufficient to explain adherence to complex systems of law. Furthermore, law proper arose when customs were violated and some higher adjudication was required. We require an explanation of how a system of complex legal rules may be enforced, and why people often obey laws in the absence of obvious incentives or disincentives. Laws and their enforcement depend on stratified social structures within the framework of the state.

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