A Critique of Economic and Sociological Theories of Social Control

Robert C. Ellickson, Yale Law School


How is it that people manage to live side by side without incessant "warre of every man against every man"? Thomas Hobbes, who won fame for posing this question, concluded that the legal system-the rules and might of Leviathan-is the wellspring of social order. Most law professors implicitly propagate this Hobbesian view, perhaps because it lends significance to what they teach. Law-and-economics scholars have been particularly prone to assert the centrality of legal doctrine. There is an opposing intellectual tradition, however, that emphasizes that social order can emerge without law. Its core theorists have been empirical sociologists and anthropologists who study stateless societies. Within the legal academy the law professors associated with the law-and-society movement have been the prime skeptics of the importance of law.

A field study that I recently conducted in Shasta County, California, provides an empirical perspective on the sources of social order. The study investigated how rural residents resolve disputes arising over damage done by stray livestock. Much of the Shasta County evidence casts doubt on the Hobbesian view. In areas of Shasta County that are legally designated as "closed range," a victim of cattle trespass is legally entitled to recover damages from the livestock owner on a strict-liability basis. In "open-range" areas, by contrast, a victim of trespass across an unfenced boundary has no rights to legal redress. I found that the rural residents of Shasta County (and even the insurance adjusters who settle minor trespass claims) pay almost no heed to these legal rules. The operative rule in both open- and closed-range areas is an informal norm that the owner of livestock is responsible for the conduct of his animals. Shasta County residents rely mainly on self-help to enforce this norm.