SOCIETÀ ITALIANA DI DIRITTO ED ECONOMIA
Karol Zdybel (University of Hamburg)
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