A Critique of Prevailing Viewpoints

Sagy (2011) presents some convincing arguments against the prevailing viewpoint on the issue of private ordering. Private ordering is the concept that envisages the management of legal affairs by groups without the intervention of the state. The predominant viewpoint on private ordering is that non-hierarchical groups have developed extralegal forums and forms of dispute processing in socially-flat market communities without any state intervention. Sagy (2011) argues that this predominant viewpoint on private ordering is incorrect and contrary to the notion that state intervention is missing in private ordering, there is actually a proactive role played by the state in the creation of private ordering. Sagy (2011) also argues that rather than private ordering developing in a socially-flat market community, there is actually a causal connection between the development of private orders and a social hierarchy. If you are working on your law dissertation, seeking professional guidance and expertise can be invaluable. Law Dissertation Help is available to assist you in navigating complex legal topics and crafting a well-researched and articulate dissertation.

I find the arguments put forth by Sagy (2011) to be convincing because of the evidence that is presented in the article. Some of the significant points that is made by Sagy (2011) relate to the gaps in the literature on private ordering. Private ordering scholars, who usually happen to be legal economists, tend to treat groups that use private orders as homogenous units, which leads them to disregard the distribution of incentives among group members. Other private order scholars who are libertarians, are driven by the wish to minimise state intervention even in legal matters. Utilitarians are driven by the need to privilege market logic over human interaction. Multiculturalists focus on a policy-oriented discourse where the emphasis is on the need to encourage private orders so as to protect the rights of non-ruling groups and minorities.

These disparate viewpoints that are critiqued by Sagy (2011) are not concerned with understanding how private ordering may be impacted by the social hierarchies and even by state. In that sense, I may say that Sagy (2011) appears to be formulating a realist view on how private ordering really develops regardless of the philosophical positions on how it should develop. In that context, Sagy (2011) disregards libertarian and utilitarian positions on private ordering, state and market communities, and focusses on the real and actual development of private orders.

This is not to say that he disregards philosophical position in toto. Sagy (2011) refers to philosophy to explain his starting point in the article; he particularly refers to Thomas Hobbes, who wrote on the significance of state to the development of order within which people can cooperate to develop public goods. He also provides the juxtaposition to Hobbes’ views in those of the later day “legal pluralists, multiculturalists, libertarians, and utilitarian legal scholars” who argued for state to not have monopoly over coercive social control and to leave the market communities to develop themselves (p. 923-924). Sagy (2011) firmly aligns himself with Thomas Hobbes and against the position of leaving the market to develop without the intervention of the state. He argues that there is no history of development of private ordering by market communities and without the intervention of the state. To butress his argument, he uses three case studies that indicate how social hierarchy and state play a role in creation of private ordering. These case studies relate to the Diamond Dealers Club in New York, the kibbutz in Israel, and ranch owners in Shasta County, California. Here, the emphasis is on the role of the state as well because as Sagy (2011) argues the state plays an active role in private ordering. This is different from the argument taken by Radin (2016), who argues that the state is a fiduciary for its people and the development of private ordering is diluting the role of the state as a fiduciary. Contrary to this, Sagy (2011) takes a more realist position by arguing that the state is encouraging the development of private ordering and is actively involved in it as his focus is stated to be on “situations in which the public order is proactive in intentionally creating private orders” (p. 945). An example is given from the Shasta County, California case study where California itself privatised and handed over the responsibility of legal categorisation to the county’s board of supervisors, ultimately leading to the shaping of decisions by local hierarchies. Another example is taken from the development of the Jewish Court of Arbitration, whose decisions were supported by the American courts that enforced their arbitral awards. Thus, the state was proactively involved in both these cases for allowing the development of private orders.

Legal pluralism is taken as the theoretical position that is adopted to understand private orders and critique libertarian, utilitarian and multiculturalist viewpoints of private ordering. I find the arguments presented by Sagy (2011) linking legal pluralism to the development of private orders convincing because it takes into account the different ways in which and the different reasons for which private orders may be developed. Sagy (2011) offers a new theoretical position taking legal pluralism as the base, wherein he is able to show (through a critical reading of literature) that extralegal mechanisms for resolution of disputes may develop due to the presence of a stratified, multiplex social structure. There is a hierarchical social structure, which is related to the development of extralegal mechanisms. This makes sense because hierarchy provides the basis for the sustenance of power by those who are in positions of power and want to preserve the power structure, and it also provides incentives to lower- ranking group members to encourage them to adhere to group norms. Sagy makes a crucial point when he says that for private ordering to sustain it has to have enforcement capabilities, which can be had only if there is hierarchy. The three case studies chosen by Sagy (2011) provides ample evidence to support his arguments. These case studies show how the private orders were developed within social hierarchies and disprove the contention that private ordering has developed in non-hierarchical groups in socially-flat market communities. In effect, I believe that the author creates a strong case for reconsidering private orders from outside the privatisation literature so that stronger norms can be created that can prevent intra group oppression within private orders. Simply supporting private orders because they are liberal, utilitarian, and support multiculturalism is not enough. A realist view point on how these orders really function, as provided by Sagy (2011) is needed.

Looking for further insights on A Case Study Approach to Drug Misuse and Crime Management? Click here.

Bibliography

Radin, M. J. (2016). The Fiduciary State and Private Ordering. Michigan Law Public Law and Legal Theory Reseacrh Paper Series.

Sagy, T. (2011). What’s So Private about Private Ordering? Law and Society Review, 45(4), 923-953.