Is the state really necessary? Social norms scholars have long argued that, in the absence of a strong central government, local communities can fashion orderly rules to distribute property entitlements and regulate their enforcement. At its core, this Article argues that while the legal scholarship has fully explored the benefits of social norms, academics have yet to flesh out the drawbacks of governance systems based on private ordering principles. Specifically, scholars have overlooked the presence and subsequent costs of violence that arise in the absence of centralized enforcement mechanisms.
My argument has two pieces. To start, I demonstrate that property scholarship has ignored the amount of actual violence that occurs in systems of private ordering. I then highlight some of the costs of this hidden violence, for both individuals and communities.
To make these points I reexamine the three canonical examples of “successful” private ordering regimes — the California Gold Rush, the Maine lobstermen, and the cattle ranchers of the American West. In each instance my research shows that violence is a more pervasive menace than the legal literature has indicated. And, ultimately, the presence of intimate physical violence not only imposes autonomy costs on the individuals ensconced in systems regulated by private ordering, it also calls into question the overall efficiency of social norms.
Clowney, Stephen, Rule of Flesh and Bone: The Dark Side of Informal Property Rights (August 22, 2014). University of Illinois Law Review, forthcoming.