PLS 232
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The Problem of Order
Law, Politics, and Cooperation
PLS 232
Winter 2012
Professor: Ron Smith
Office: FOB 204
Office Phone: 866-7368
Email: smithr@hanover.edu
On-line Syllabus: vault.hanover.edu/~smithr
The end of the law is, not to abolish or restrain, but to preserve and enlarge freedom.
For in all the states of created beings capable of laws, where there is no law there is no
freedom.
-John Locke-
Course Description:
The rise of the modern world, the wealth, the technology, and the freedoms that we enjoy come
from an ability to order ourselves in mutually beneficial ways. Yet despite the amazing successes the
world has seen, other—often well-meaning—attempts at order have created dire poverty, mass deprivation,
and political oppression of a magnitude previously unimagined. How can something like law be so
beneficial at one place or time and so devastating at another? It is the purpose of this course to provide an
introduction to the analysis of law and its strengths and weaknesses in solving the problem of order.
The focus of this course is on those organizational principles that are mutually beneficial and the
tools available for their analysis. This will lead us through such topics as transaction cost economics, a
comparison of the dominant two legal systems in the world, the relationship between law and the society,
examples of the destructive powers of law, and examples of successful ordering that has occurred outside
of the boundaries of what would commonly be accepted as “law.” Though our interest is in order
generally, we are primarily interested in systems that rely more on cooperation than coercion—or, in other
words, systems that value freedom. Hence, much of our analysis will be of the American experiments with
law and successful systems of self-government.
Readings:
Robert Ellickson. 1991. Order Without Law: How Neighbors Settle Disputes.
 John Merryman. 1985. The Civil Law Tradition. 2nd edition. Stanford University Press.
Matt Ridley. 1996. The Origins of Virtue: Human Instincts and the Evolution of Cooperation.
Colin Turnbull. The Mountain People.
Supplemental readings will be on reserve in the library or available online as indicated in the syllabus.
Course Requirements:
Grades are based on two exams, reaction papers, and a term paper. The midterm will account for
30% of the course grade, the final exam 30%, the reaction papers 15%, and the paper the remaining 25%.
Reaction papers are short (one page or less) “reactions” to the day’s readings that you will
compose at the immediate beginning of the class. In them you are to provide a brief synthesis of the key
points of that day’s reading and your impressions, likes, dislikes, or ideas that it inspired. You will not
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know which days will be selected for the papers, so always read, always think about the ideas, and always
be prepared for me to spring one on you. As a general rule there will be no make-up papers. However, I
will drop the lowest score when computing the course grade—so you essentially have an “extra.”
I look forward to works that are both original and unique. Plagiarism or other forms of academic
dishonesty are unacceptable and you may be penalized as prescribed in the student handbook. If you are
unsure of what plagiarism is, or exactly how much you and a friend can collaborate on class work, please
talk with me.
Course Outline
I. Order’s Direction
Jan 9
No reading
Jan 11
Oliver Wendell Holmes, Jr. 1897. “The Path of the Law”, Harvard Law Review 110: 991-1009. (Access
through JSTOR).
Jan 13
Thomas Aquinas. Summa Theologica. FS: QQ. 91, 94-95 (Available online)
Jeremy Bentham. 1843. “Critique of the Doctrine of Inalienable Natural Rights”. (Available online)
Jan 16
Excerpts from Thomas Hobbes (Available online).
II. Prisoner’s Dilemma
Jan 18
 Hardin, Garrett. 1962. “The Tragedy of the Commons,” Science 162: 1243-1248
(Access through JSTOR)
Jan 20
Turnbull Chaps. 1, 5-6.
Jan 23
Turnbull chaps. 7, 9-10.
Jan 25
Peter Kollock. 1998 “Social Dilemmas: The Anatomy of Cooperation.” Annual Review of Sociology,
24:183-214 (access through JSTOR).
III. Self-Interested Order
Jan 27
David Hume. A Treatise of Human Nature. Book III, Part II, sections 1 - 2. (Available online)
Ridley, pp. 1-34
Jan 30
Ridley, 35-84 and 103-148
Feb 1
Ridley, 150-169 and 195-210
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Feb 3
Avner Greif. 1989. “Reputation and Coalitions in Medieval Trade: Evidence on the Maghribi Traders.”
The Journal of Economic History 49: 857-882. (access through JSTOR).
IV. Contracting Cooperation
Feb 6
Yamagishi, et al. 1998. “Uncertainty, Trust, and Commitment Formation in the United States and Japan.”
American Journal of Sociology 104:165-194. (Access through JSTOR).
Feb 8 and 10
Ronald Coase. 1960. “The Problem of Social Cost” Journal of Law and Economics 3:1-44. (Access
through JSTOR).
Feb 13
 David Friedman. 2000. Law’s Order: What Economics Has to Do With Law and Why it Matters.
Princeton University Press. Chapter 5 (Access online. Hereafter Friedman).
Feb 15
Friedman, Chapters 10 and 12 (stop at “contracts between fewer than two parties…”). (Access online)
Feb 17
Ridley, 211-247.
Feb 20
Morris Hoffman. 2004. “The Neuroeconomic Path of the Law,” Philosophical Transactions: Biological
Sciences 359: 1667-1676 (Access through JSTOR).
Feb 22
MIDTERM
V. Legal Order
Feb 24
Excerpts from Rousseau (Available online)
March 5
Merryman, pp. 1-47.
March 7
Merryman. Pp. 48-67 and 101-132.
March 9
F. A. Hayek. 1958. “Freedom, Reason, and Tradition,” Ethics 68: 229-245. (Access through JSTOR).
VI. Legal Positivism
March 12
Wythe Holt. 1984. “Tilt”, George Washington Law Review 52. (Access through Lexis-Nexis).
March 14
Morton Horwitz. 1977. The Transformation of American Law 1780-1860. Chapter 1 (On reserve).
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March 16
Hendrik Hartog. 1985. Pigs and Positivism. Wisconsin Law Review 899. (Access through Lexis-Nexis)
March 19
George and Epstein. 1992. “On the Nature of Supreme Court Decision Making.” APSR 86:323-387
(Access through JSTOR).
March 21-23
”Slavery by Another Name” documentary.
VII. Order without Law?
March 26
Ellickson, pp. 1-64
March 28
Ellickson, pp. 65-103 and 123-136.
March 30
John Reid, Law for the Elephant, chaps 1and 8 (On reserve).
VIII. Law without Order?
April 2
Scott. “The Trouble with the View From Above” (Available online).
April 4-6
Hernando De Soto. 1989. The Other Path. Chaps 1-2, 5 and 8 (on Reserve).
April 9-13
Presentations (all papers due on the 9th).
Final-Date to be determined.