Customs as local general norms
There are two ways in which customs possess the characteristics of general norms. First, customs can be defined as general norms in that they are not built to solve specific problems but rather are abstract rules.
In a second sense, as they incorporate successful practices, customs are assumed to be generalized by becoming applicable beyond the initial boundaries within which they emerged, or by becoming relevant to instances that were not concerned in the first place. To assume the possibility of such a generalization implies considering customs as pure public goods while, in fact, they are club goods or local public goods. Indeed, the space in which customs are used depends on the distance - physical as well as psychological - covered by sympathy. Hume and Smith, among others, have insisted on the fact that sympathy is a ‘scarce’ feeling restricted to individuals close to each other. Therefore, customs define homogeneous clubs whose members have participated in similar repeated interactions and thus display the same willingness to cooperate with one another. This ‘local conformity effect’ can be compared to the ‘global diversity effect’, which tells us that ‘there is a positive probability that [several communities that do not interact with one another] will be using different conventions’ (Peyton Young, 1996, p. 112). From this perspective, the likely tensions between the different local (be they regional or national) traditions could be an obstacle to the generalization of customs.Two types of problem are likely to occur. First, as we have shown previously, customs develop and spread in a cooperative environment because knowledge is not acquired through formal communication but through participation in interaction. Thus, a new player entering the game will have to participate in interactions with members of the group in order to become familiar with the different local customs.
Alternatively, a new player entering the game may face induction problems because he/she is unable to positively know the meaning some other person gives to the rule or to infer this meaning from the observation of behaviours. There are asymmetries of information between individuals who belong to different groups, and individuals cannot acquire knowledge of local rules except through direct participation. The costs of acquisition of information through participation, when players of different groups are involved, are thus very high. Here, the problem faced by customary codification is that of the publicity of law beyond the limits of the group.A second type of problem concerns variations in players’ willingness to cooperate. Free-riding and opportunistic behaviours may be an increasing function of the size of the group. Large groups are assumed to promote efficiency in allowing more specialized production activities and increasing returns. However, as group size expands, transaction and control costs increase in a non-linear manner, perhaps offsetting the advantages of a larger group. The greater the number of individuals involved, the more difficult it is to know the rules they follow, in so far as it requires an ever greater number of experiences, and the more difficult it is to check that they respect the rules. Therefore, within larger groups, cooperative behaviours tend to disappear, and are replaced by free-riding. A ‘constitutional’ use of the model proposed by Hotelling (1929) explains how distance to the local public good influences the legal strength of the rule (Blum and Dudley, 1991; Josselin and Marciano, 1999). Thus, ‘within a broader social setting decentralised law making encounters the problem that some individuals will tend to free-ride on the enforcement of others’ (Ogus, 1999, p. 589). In this environment, non-cooperative behaviours can emerge and persist, whether or not the game is repeated (Witt, 1989). Brennan and Buchanan (1985, p. 60) called this ‘Gresham’s law of social interactions’.
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