Why Whaling?

Ellickson, Robert C. 1991. Order Without Law: How Neighbors Settle Disputes. Cambridge: Harvard University Press.

At first this section really turned me off, ugh the last thing I want to read about is whaling, but after taking Professor Ryan's advice to just get over it I actually learned alot. Chapter 11: Substantive Norms: Of Bees, Cattle, and Whales is a great example of how to an archeology of a norm. Ellickson breaks down whaling norms from their social, historical, and economic reasoning and position. He also demonstrates how the norms that were in place were welfare maximizing with low transaction cost by comparing them to hypothetical alternative norms which were not welfare maximizing with low transaction costs.

Whaling Norms 191
*The whaling industry, which was plentiful and highly profitable during the 18th and 19thc. established its own welfare maximizing norms spontaneously and over time. *Rules and norms were unwritten but established an overarching system to govern the property rights of whalers. *The actions inspired by theses norms were later used in courtrooms as precedent to establish law.
“The practices of high-seas whalers in the pre steamship era powerfully illustrate how nonhierarchical groups can create welfare maximizing substantive norms” (Ellickson 191).
The Whaling Industry 192
*The whaling industry was close and tight knit community. *Many lived in villages together and related by marriage. *Even internationally whalers were still a community at sea and were prey to gossip among other whalers or their families if they behaved inappropriately at sea. *Norms existed and were upheld because they were a tight knot community.
“The international whaling community was a tight knit one” (Ellickson 193).
“…evidence available suggests that whalers’ norms of capture were internationally binding” (Ellickson 193).
Hypothetical Whaling Norms 195
*There are all sorts of norms that whalers could have used but didn’t. *A possession decides rule, whale belonging to the ship that killed it, fractional ownership, active pursuit means right to capture, belongs to ship that had first reasonable prospect. *All of these hypothetical norms fail to reduce deadweight losses while simultaneously having low transaction costs.
“…whalers recognized that they needed norms to govern the ownership of whales that one ship had helped to kill, but another ship had ultimately seized” (Ellickson, 195).
Actual Whaling Norms 196
*Whalers actual norms were less fanciful and more utilitarian than the hypothetical norms presented above. *Whalers had 3 basic norms that were both sensitive to the problem of deadweight losses and transaction costs. 1.fast fish loose fish, if the fish was fastened to a line it belonged to the boat that held the line, if it was loose from the line the whale was up for grabs. Useful in Greenland for right whales. 2. iron holds the whale rule, no line connection needed for ownership just the harpoon or lance affixed to the body of the whale. Useful in New England for sperm whales. 3. rules that split ownership, this rule split the whale carcass when 2 ships were involved, the harpooner and the ultimate seizer, according to labor expended.
	Whaling Norms and Whaling Law 203
*Whalers were, for more than a century, able to govern their industry through self created and imposed norms. *There was no need for legal intervention until the whaling community and industry simultaneously began its decline. *Even after the decline the whalers’ self-created norms were used in court cases as precedent to make judgments.
“The example of the high seas whalers illustrates, contrary to the legal centralist view, that informal social networks are capable of creating rules that establish property rights. Whalers had little use for law or litigation” (Ellickson, 203).
Were Whalers’ Norms Welfare Maximizing? 204
*Yes, when considering the norms through an ex ante prediction. The norms appear to be welfare maximizing in the prediction of their application to whaling. *No, when looking back at the actual application of the norms, ex post. 1. The whalers did not apply the fast fish loose fish rule according to species, which would have been welfare maximizing, but according to fishery. 2. The norms enabled the whalers to work together, which in turn abetted in the fast depletion of whales. The norms caused the whalers to be to efficient for their own good.

Could we do without "Order Without Law"?

Ellickson, Robert C. 1991. Order Without Law: How Neighbors Settle Disputes. Cambridge: Harvard University Press.

I have heard numerous gripes from my classmates concerning the value of this text. I must agree with the objections based on the boring nature of most of the book's subject matter and the fact that a good portion of the book is written to be read by people more learned than myself. These two problems compounded only exacerbate the fact that to learn the lessons of the book (which are highly valuable) you have to be bored and lost for a good portion of the reading. I am not saying this to be insulting or contrary to the class or our brilliant professor but as a truth that might offer some constructive criticism. With that said, Order Without Law is undoubtedly an invaluable book for the legal and social sciences, but might be, as a whole, out of reach for undergrads. Maybe a reading of excerpts from the book followed by an in class discussion and interpretation of the material read would be more beneficial. The exercises that we did with the whaling chapter were enormously helpful for me in critically understanding the concepts put forth by Ellickson. With many of the other chapters that I read, of which were not engaged in other activities, were understood by me partially at best.

I felt that chapters 7: The System of Social Control, 9: The Puzzle of Cooperation, and 11: Substantive Norms: Of Bees, Cattle, and Whales were among the most helpful and directly applicable to the other class material.

Please operationalize "Rational" for me!

Inspired by our immersion into game theory and the constant postulating as to others actions, I was struck today that very few students handed in their game theory homework as per the instructions on the first page. Haven't we spent two weeks inside a world that needs to be played with rational rule following actions in order to work and be beneficial to all or at least most or at least you.

Then I realized that maybe the norm that dictates hand in times has not been properly upheld for this class. Is it because this is the first time that we have had to turn in an assignment physically on a desk during class time? Maybe. But we have spent our school careers turning things in as per the instructors instructions and being penalized for deviating from that. Do we think that Dan wont penalize us? I have to wonder, why put the time due on the assignment at all? Does Dan just like to type? Maybe he wanted to see if we follow instructions well, who knows. One thing is clear though, only a fraction of the class felt an obligation to follow the instructions of the assignment to the letter (no pun intended) and as it would appear Dan didn't seem to care either. In the future I will remember to relax and go with the Dan, as one of my brilliant classmates has suggested.

I am left with one Weberianesque question:

Is it possible to be a rational player in an irrational world?

Introduction to Game Theory

I have to say that so far I really like game theory and how it applies to social control. The documentary that we watched for class was fascinating (Game Theory pt1 on YouTube [9:00] Pt2 [8:40] Pt3 [8:36] Pt4 [7:10] ). I loved seeing inside of the real operations of the Rand Corporation and John Nash. I thought he was a little to romanticized for a mathematician in the movie. My favorite part of the documentary was Lang though. Just the fact that Lang had so much influence on the deconstruction/reconstruction of social welfare systems in the UK and that the mighty Margret Thatcher had a think tank based on his research is awesome. The inspection of the overly bureaucratized and inefficient social programs of Britain was long overdue.

I can also feel a kinship with his application of game theory to all personal interactions. Keeping in mind that all game theory application is based on ideal types, Lang's analysis of interpersonal interactions as strategic and selfish is something to seriously think about.

I know that the last part of the documentary on Lang's attack of the American Psychiatric profession is supposed to be taken with a grain of salt but how inspiring still and frightening. I love that Lang got some psychiatrists to question their own profession and the amount of human judgement that goes into diagnosing mental illness. The results of his protest are not necessarily what he had in mind though, a computerized and mathematical system that is now used in psychiatry to diagnose mental illness. I don't have an answer to what might bring more balance into the profession of psychiatry but it is a system in need of serious repairs. Lang showed me that you can inspire change in a seemingly fixed system but beware of what you ask for because you just might get it.

The System of Social Control

Ellickson, Robert C. 1991. Order Without Law: How Neighbors Settle Disputes. Cambridge: Harvard University Press.

Chapter 7 of Ellickson's book breaks down and defines different types of norms and explains why an interdisciplinary approach is crucial to understanding the system of social control.

The Five types of norms (rules) are

1. substantive- at the core of the system, govern primary behaviors.

2. remedial- self governing laws meant to remedy a harm done or prevent one from happening.

3. procedural- govern weight and quality of evidence needed to constitute a valid complaint of wrongdoing.

4. constitutive- govern internal structures of control, the rules of the rules.

5. controller-selecting- dictate the division of social control labor, coordinate social control domains.

Ellickson describes the five controllers that make rules and administer sanctions

1. first party- self control/discipline

2. second party- contracts, promises

3. third party- social forces, norms

4. organizational- official rules of an organization not of the government but still sometimes punishable by law

5. government- actual law, state enforced

These rules and controllers can only be fully understood in the context of how they actually operate with one another and in society through a multi-disciplinary approach which includes psychology, economics, sociology, political science, organizational theory, and law.

Law and the Social Sciences

Friedman, Lawrence M. "The Law and Society Movement". The Stanford Law Review, Vol. 38, No.3 (Feb. 1986), pp. 763-780.

Sibley, Susan S. "Law and Society Movement" in Legal Systems of the World: A Political, Social, and Cultural Encyclopedia. Edited by Herbert Kritzer. Santa Barbara: ABC CLIO

The articles above are essentially the same thing just from different perspectives. Both are advocates of the Law and Society movement but Sibley is more confident in its present state where Friedman really feels that though the intentions are good a whole new approach is needed if one is even possible.

It seems to be understood that Law and Society is the study of how the legal system actually operates, explaining the law within the social context that it is operating in.

Friedman says that it uses the scientific method and applies to something thoroughly nonscientific. I think that the same could be said about the whole of sociology if one wanted to take such a staunch and traditional approach to academia. I do agree that it is difficult to create grand narratives in the theory of law and society but attempting it can do nothing but give us reasons as to why it is difficult as well as an understanding of just how disjointed law is all over the world and how it is connected.

Sibley asserts that "law and society has succeeded in painting a picture of law as a social system" (862).

It seems a logical conclusion of both articles that law and society is pretty cool, not so well respected in the legal field, under funded, crucial to the decentering of law as the only means of control in societies, needs to be more inclusive of economic theory, and unfortunately no matter what will be the red headed step child of legal scholarship.

Social Status

Gusfield, Joseph R. (1986). Symbolic Crusade: Status Politics and the American Temperance Movement. Chicago: University of Illinois Press.

"Social Status and the Temperance Ethic"

This chapter gave great insight to a mechanism of social control that has had a big impact in the United States. Moral entrepreneurism was a major motivating factor in the founding and forming of our country and is still quite relevant in the weaving and tearing of our "social fabric". Gusfeild does a good job of pointing out that although symbolic politics are more covert they are just as important as economic issues. It is these movements that shape the dominant opinions of our vastly diverse country, they define the majority. I use the term majority here in the sense of the dominant group ie the "moral majority" not in the sense of numbers but in the sense of power. The crusades of the moral majority always succeed in creating a divide in the country between the deviant and the surpassers, an othering if you will. It is within these Symbolic Crusades that the group in danger of losing its foothold sets out to demonize those not like him therefore solidifying his respect and position of authority.

The temperance movement in post civil war U.S. was a strategic move by the protestants to maintain their hold as the moral majority. Post civil war America saw a large influx of Eastern European immigrants of the Catholic persuasion. What the Protestants could not fight in numbers they tried to make up for with existing political power. One giant difference in the two groups was that Protestants were sober and Catholics were not. If the Protestant group could solidify in law that drinking alcohol was deviant and therefore illegal US the law would be legitimizing Protestant values while simultaneously demonizing Catholics.

By setting up such a rigid moral dichotomy moral crusaders like those in the temperance movement are also setting the perimeters within which a citizen must live in order to be a valuable member of his/her society. The values of the moral majority become symbols of social status and the deviation from such values become signs of deviance.

New developments in the country, such as changing economic and political climates, finally beat out the moral entrepreneurs of the temperance movement, thank god (no pun intended).

Summarizing Quote- "Temperance has been both a protest against a changing status system and a mechanism for influencing the distribution of prestige. This study is consequently a contribution to the theory of status conflict and its relation to political and social movements" (Gusfield 12, 1986).