Abstract
Anthropologists and legal scholars have long come to the realization that
customs, social norms, informal rules, and the like govern societies as much as
state-made laws do. Law and economics researchers followed suit, producing a
large number of studies on the topic. With the growing amount of scholarship, it
is increasingly difficult to navigate in what has now become a complex field. This
article responds to said difficulty by offering a concise typology of spontaneous
norms. It starts by identifying three features associated with “custom”, “private
ordering”, “extralegal rules” etc.: (i) implicit (or tacit) rulemaking, as opposed
to explicit rulemaking; (ii) enforcement through decentralized (“social”)
sanctions, as opposed to centralized enforcement; (iii) private interpretation of
compliance with rules, as opposed to public and institutionalized interpretation.
The three criteria are combined to develop a typology of customary governance.
The paper also suggests how identified types can be game-theoretically modeled
as repeated games. It is argued that structural differences between various forms
of spontaneous norms can be best understood as differences in the sequence of
play in a stage game. Further, the typology is illustrated with real-world
examples from legal history and anthropology. Supposedly dissimilar regulatory
systems (e.g., customary international law and primitive law; norms of warfare
and domestic social norms) are shown to exhibit structural resemblance
customs, social norms, informal rules, and the like govern societies as much as
state-made laws do. Law and economics researchers followed suit, producing a
large number of studies on the topic. With the growing amount of scholarship, it
is increasingly difficult to navigate in what has now become a complex field. This
article responds to said difficulty by offering a concise typology of spontaneous
norms. It starts by identifying three features associated with “custom”, “private
ordering”, “extralegal rules” etc.: (i) implicit (or tacit) rulemaking, as opposed
to explicit rulemaking; (ii) enforcement through decentralized (“social”)
sanctions, as opposed to centralized enforcement; (iii) private interpretation of
compliance with rules, as opposed to public and institutionalized interpretation.
The three criteria are combined to develop a typology of customary governance.
The paper also suggests how identified types can be game-theoretically modeled
as repeated games. It is argued that structural differences between various forms
of spontaneous norms can be best understood as differences in the sequence of
play in a stage game. Further, the typology is illustrated with real-world
examples from legal history and anthropology. Supposedly dissimilar regulatory
systems (e.g., customary international law and primitive law; norms of warfare
and domestic social norms) are shown to exhibit structural resemblance