Gillian Hadfield and Barry R. Weingast (USC Law School and Department of Economics and Stanford University – The Hoover Institution on War, Revolution and Peace) have posted What is Law? A Coordination Model of the Characteristics of Legal Order on SSRN. Here is the abstract:
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Legal philosophers have long debated the question, what is law? When can we say that a society is organized as a legal order as opposed to some other type of order such as order based on religious authority, moral principles, emergent social norms, or tyranny? This question is of both theoretical interest and political and economic interest, as countries seek to transition from the rule of power or privilege to the rule of law to build market democracies and generate economic growth. We present a model that seeks to explain the distinctive characteristics of law – such as its generality, abstract reasoning, uniqueness and reliance on open and public processes – on the basis of law’s function to coordinate an equilibrium based on decentralized enforcement of rules. We thus depart from the conventional assumption in both law and economics and positive political theory, namely that law is to be defined as a system of coercive enforcement of penalties by the state. We find that the capacity of law – meaning third-party classification of behaviors as wrongful or not – to coordinate enforcement depends on the ability of law to provide unambiguous classifications. Many of the features identified by legal philosophers as characteristic of legal orders, and some that legal theory ignores or deemphasizes, are predicted by the model.
An important paper that should be of interest to every reader of legal theory blog. I should note that some of the setup of the paper seems to misunderstand the questions asked by legal philosophers about the nature of law and to misstate the positions of some legal philosophers. Persist until page four, where the deeply interesting core argument of the paper actually begins
Highly recommended. Download it while its hot!