Against Legal Centrism

Mark Twain once quipped that everyone talks about the weather, but no one does anything about it. Similarly, everyone talks about empirical research in law and economics, but few people have done anything about it. Robert Ellickson is among those few. To find out how neighbors settle disputes, he interviewed ranchers and officials in Shasta County, California, concerning the harm caused by straying cattle. Ellickson reported his results in several journal articles which are collected and synthesized in a new book with the attractive title, Order Without Law (p. viii).1 Part One of the book recounts his empirical findings, and Part Two interprets them using theories from law and economics, law and society, and game theory. Taken together, the two parts of the book constitute the most systematic and thoughtful study of customary law to appear in recent years. Many scholars regard customary law in post-industrial society as a vestigial organ, like the human appendix. For example, Salmond thought that customary law, though originally important, naturally yields to statutes as the state acquires power.2 Behind this opinion lies the conviction that rational law cannot arise spontaneously from human interaction, but instead requires deliberation and debate. Similarly, most American scholars apparently regard the common law process as one in