Why Judicial Institutions Emerge? From Fishing Tribunals to Transnational Regulators – WJIE
The starting point of the project is an argument based on game theory that has exercised a significant influence on the analysis of "private orders." According to this argument, individuals would not need the support of a judicial institution in order to regulate their interactions in small communities. Indeed, the interplay of reputation bonds would suffice to govern these small communities. As these communities grow beyond a critical size, however, judicial institutions would emerge to centralize information regarding community members (and allow the interplay of reputation bonds). This argument therefore accounts for the emergence of judicial institutions, but limits their role to a “repository” of information.
On the basis of empirical evidence, the project ambitions to challenge this argument. For that purpose, the community of fishermen in the port of Marseille (South of France) appears to fulfill the conditions set by game theory (i.e., a small community with complete information about its members and infinite-horizon games). The prediction of game theory, when applied to the fishermen of Marseille, should then be the following: fishermen should self-regulate their community through reputation bonds (without recourse to a judicial institution). But the study of the fishermen of Marseille contradicts this prediction: in fact, a judicial institution called a Prud’homie de pêche has emerged and settled the (contractual and property) disputes among fishermen since the Middle Ages.
The example of the Prud’homie de pêche will thus provide empirical material to test three main hypotheses: (i) contrary to the findings of game theorists, reputational effects do not always suffice to regulate small communities, even when information is readily available in these communities, (ii) judicial institutions may emerge in communities where information is readily available irrespective of the size of these communities, and (iii) the role of judicial institutions may go beyond the mere “repository” of information described by game theorists.
When testing these hypotheses, particular attention will be given to the foundations of game theory. Indeed, game theory presupposes the rationality of individuals. But individuals – however rational they might be – often fail to overcome emotions and ingrained biases. This is particularly true in the context of repeated games, where the ‘tit for tat strategy’ is highly likely to degenerate into retaliatory games. In this context, judicial institutions would serve to harness the retaliatory games that may arise in small communities, but also in large ones.
On the basis of these observations, a distinction will then be drawn between a “relation-based” model of governance and a “rule-based” model of governance. The relation-based model (founded on information flows) would prevail until the community reaches a critical size, or when a stable community (in terms of size) faces external or internal shocks that prompt cycles of retaliation. In these circumstances, the relation-based model would cede ground to the rule-based model, where institutions provide a normative structure backed by reasons and/or threats (epitomized for instance by the State) in order to break the cycles of retaliation.
This distinction will be applied to the case of the Prud'homie de pêche before being transposed to the transnational level, where contractual and property disputes commonly arise. Some transnational networks have developed their own judicial institutions in order to solve these disputes. The distinction between the relation-based and rule-based models of governance will thus provide an analytical framework to determine the circumstances where judicial institutions are needed to solve these disputes.
Monsieur Florian Grisel (Centre de Théorie et Analyse du droit)
The author of this summary is the project coordinator, who is responsible for the content of this summary. The ANR declines any responsibility as for its contents.
CTAD Centre de Théorie et Analyse du droit
Help of the ANR 43,200 euros
Beginning and duration of the scientific project: September 2016 - 48 Months