Ellickson's Extraordinary Look at the Ordinary

It is often said that the mark of great work, and a great theory in particular, is that it seems obvious in retrospect. And among such theories, some of the most impressive are those that aim to explain not just the problems du jour but also a range of facts about life that we have tended to take for granted. In law and economics, the Coase Theorem1 seems self-evident now, and the situations it covers positively homely, but at the time, against the backdrop of the idealizations and obsessions with frictionless worlds of mid-twentieth century economics, it was anything but obvious.2 Not only did it take a night's worth of partying in Chicago to make converts there,3 but refutations of the Coase Theorem sprouted up for quite a while afterwards.4 Bob Ellickson's work has this character in both respects. That social norms can be more important than - and can even override - contradictory law is now a staple of legal theorizing.5 And the hypothesis that close-knit communities will develop efficient norms for themselves - but not necessarily efficient for society overall - is leading to a better understanding of the dynamics of spontaneous order and its strengths and sometime weaknesses.6 This and his study of the workings of property itself,7 and now the household,8 are of clear utility in retrospect. But all of these aspects of Ellickson's work also share the second feature of a great theory: they explain aspects of life that were taken for granted - were not even on the scholarly radar screen - before Ellickson came along. Now Ellickson considers himself more of a social scientist than a philosopher, but this characteristic of his theorizing - the startling attention to something taken for granted - has characterized some of the greatest advances in philosophy and related fields. The one with which I am the most familiar, linguistics, was revolutionized starting in the 1950s when Noam Chomsky changed the goal of linguistics.9 Prior to the advent of his generative grammar, linguistics was usually conducted as an offshoot of traditional grammar. Grammar focused on categories, like cases, subjectobject word order, and many more subtle ones, that had been useful in describing Latin and related languages. These familiar categories were simply taken for granted, and details of these basic features were modified relative to Latin as an implicit baseline. Only when theorists took a step back and asked some very basic questions could linguistic theory hope to move beyond school-grammar and aim at a theory of human natural language competence in general. But the way to get there was to start noticing the deep puzzles in some of the homely facts staring at us under our noses.10 Likewise, a lot of very arcane analytic philosophy got its start when people started asking questions about how ordinary language works or why we have our basic moral intuitions.11 The starting point for great theories is often sitting right in front of - or within - us. What makes Ellickson's work so impressive and inspiring for my own work is exactly this character of putting the ordinary on the agenda in unexpected ways. Let me discuss three major examples, and then how this method calls for some qualification of another major theme of Ellickson's work - the irrelevance of law. First is Ellickson's work on social norms.12 In his study of Shasta County, Ellickson's field work went well beyond demonstrating that people did not know or care about law and that they worked things out among themselves in an efficient way. He showed first of all, in great detail, that people often preferred simple solutions over complex ones. Whether the prevailing legal regime was fencing in or fencing out, the fact that the prevailing norm was responsibility by animal owners for invasions of others' land suggests a powerful gravitational pull to the trespass model.13 Not in the sense of the somewhat complicated rules of animal trespass, but the basic regime of keep off, and out of, the column of space defined by the ad coelum rule. …