Norms and the theory of the firm.

• Author: Hart, Oliver
• Position: Symposium on Norms and Corporate Law

INTRODUCTION

The subject of norms is an enormous one and a neophyte who ventures into it is taking a considerable risk. My excuse is that I was asked by the conference organizers to write about the connection between norms and the theory of the firm, and I agreed because, even though I do not know much about the former topic, I have spent a lot of time thinking about the latter one.

I will take as my remit to write about some of the attempts economists have made in the last ten years or so to integrate norms into the theory of the firm. In doing so I will inevitably touch on some recent developments in the theory of the firm itself. I will argue that (a) although norms are undoubtedly very important both inside and between firms, incorporating them into the theory of the firm has been very difficult and is likely to continue to be so in the near future; and (b) so far norms have not added a great deal to our understanding of such issues as the determinants of firm boundaries (the "make-or-buy" decision)--that is, at this point a norm-free theory of the firm and a norm-rich theory of the firm do not seem to have very different predictions.

1. BACKGROUND

   I will follow Richard Posner's definition of a norm as "a rule that is neither promulgated by an official source, such as a court or a legislature, nor enforced by the threat of legal sanctions, yet is regularly complied with."(1) I will focus on norms in and between organizations as opposed to societal norms, even though there is obviously an important connection between the two. For example, a society in which honesty is not taken very seriously is also one in which firms will have a lot of difficulty sustaining trust. Norms at the societal level, however, are pretty slow to change, and, for the purposes of my discussion, they can be taken as exogenous. In contrast, norms in and between organizations are capable of being designed.

   A useful starting point is the idea that organizational norms matter when parties cannot write good contracts, or, more precisely, when transaction costs make contracts incomplete.(2) That is, in a world in which parties can costlessly think and negotiate about the future, and judges are perfect, norms would not matter because parties' relationships could be governed by perfectly enforceable contracts. A leading reason for contractual incompleteness is that some economically significant variables are observable to the parties, but not to outsiders, such as a judge. In the parlance of economics, these variables are "observable, but not verifiable." For example, an ideal contract between an employer and an employee might specify that the employee would be given a bonus for good performance since this may encourage the employee to work hard. Both the employer and the employee may know after the fact whether the employee performed well or not, and therefore whether the bonus has been earned, but a judge may not have this information. As a result, the contract stating that the employer will pay the employee a bonus if the latter performs well is difficult to enforce. Here a norm of honesty would be very helpful. If the employer can be trusted to keep her word, the agreement that the employee will receive a bonus if she performs well can be sustained by informal means rather than by formal ones.

   As another example, consider a company's promise(3) to workers that it will not lay any of them off unless "things are really bad." Such a promise might serve an important role in providing risk-averse workers with partial insurance about the future. Enforcing such a promise in the courts, however, is likely to be fraught with difficulty because of disagreement about the meaning of the phrase "things are really bad." Without too much of a stretch of reality, it might be said that the event is observable but not verifiable. Again, norms of honesty and decency can help here. If the firm can be trusted not to be opportunistic, then a flexible outcome can be achieved through an informal agreement. The company will reserve its right to shed workers if a disaster occurs, but will not abuse this right by laying off workers in events that are merely bad.

   Given the link between norms and judicial imperfection, it is not surprising that much of the economic literature on norms in organizations goes under the heading of "self-enforcing contracts." It is important to realize, however, that norms also matter when contracts are incomplete for other reasons. One reason may be that the parties are boundedly rational. For example, if the parties cannot think or negotiate ahead very well, then events will arise that their contract does not cover. A norm of fairness can help to fill in the contractual gap in an appropriate manner. For reasons of tractability, most of the economic literature rules out bounded rationality among the contracting parties themselves, and so the role of fairness-type norms has not been much explored in an organizational context.(4) In my discussion, I will follow the literature in this regard; it should be emphasized, however, that a consequence of this is that much of interest may be left out.

2. MODELING DIFFICULTIES

   As I have already noted, theoretical progress on analyzing norms and organizations has been slow. The main reason is that economists do not have a very good way to formalize trust. Three main approaches have been tried, and each has significant drawbacks. In this Part, I will briefly describe each approach.

   The most commonly used approach is based on the framework of infinitely repeated games. Although this will be familiar to many, it is probably worth illustrating since I will use it later in this Article. Suppose that a buyer, B, and a seller, S, want to trade a widget each period. S can deliver a high-quality widget or a low-quality widget; the former has value that exceeds its cost, while the latter has zero cost and zero value. The quality of the widget is observable (to B and S), but not verifiable (in a court of law). In a one-shot version of this game, trade will not occur if the parties are purely self-interested (and hence are not trustworthy). The reason is that if B promises to pay S as long as S supplies a high-quality widget, then it is always in B's interest to claim that the widget's quality was low, whether or not this is true, and, anticipating this, S has no incentive to supply high quality. (This example is isomorphic to the employer-employee example mentioned earlier.)

   If this game is repeated infinitely often, however, trade at the high-quality level can be sustained. The way this works is roughly as follows. B promises to pay S a price P per period--where P lies between B's value and S's cost--as long as the widget quality is high in that period (recall that B observes widget quality). In return, S promises to supply a high-quality widget each period unless in some previous period B has broken her promise to pay, in which case S supplies low-quality forever more.

   It is easy to see that these promises are mutually self-enforcing, as long as the parties do not discount the future too much. The reason is that, while B can gain something each period by pretending that S's quality is low and withholding payment, this short-term gain is dwarfed by B's loss from never receiving a high-quality widget again.

   Unfortunately, as is well known, this approach to explaining cooperation or trust runs into several difficulties.(5) First, it relies crucially on the assumption that there is no upper bound to the number of times the game is played. Suppose, in contrast, that it is known that the game will not be played more than [Tau] times. Then, however large [Tau] is, the parties will realize that in period [Tau], B will break her promise to pay S (as in the one-shot game, there is no future to discourage her); anticipating this, S will supply a low-quality widget in period [Tau], hence B will have no incentive to pay in the previous period (she recognizes that this will have no effect on what happens in the last period), and so on. In other words, the self-enforcing contract unravels. The conclusion is that, as in the one-period model, no trade will take place in...