HARVARD LAW REVIEW criminal sanctions in order to demonstrate how the model enables us to perceive relationships which have been ignored by writers in those field The first issue which must be faced by any legal system is one we call the problem of"entitlement "Whenever a state is pre sented with the conflicting interests of two or more people, or two or more groups of people, it must decide which side to favor. Absent such a decision, access to goods, services, and life itself wi be decided on the basis of "might makes right'-whoever stronger or shrewder will win. Hence the fundamental thing that law does is to decide which of the conflicting parties will be en- titled to prevail. The entitlement to make noise versus the en- titlement to have silence, the entitlement to pollute versus the entitlement to breathe clean air. the entitlement to have children versus the entitlement to forbid them -these are the first order of legal decisions Having made its initial choice, society must enforce that hoice. Simply setting the entitlement does not avoid the problem of"might makes right"; a minimum of state intervention is always necessary. Our conventional notions make this easy to compre- that a rather different approach may shed on problems frequently looked at pri marily from a legal process point of view. As Professor Harry Wellington is fond of saying about many discussions of w, this article is meant to be only one of Monets paintings of the Cathedral at Rouen. To understand the Cathedral one must see all of them. See G. HAMILTON, One could of course look at the state as simply a larger coalition of friends designed to enforce rules which merely accomplish the dominant coalitions desires. Rules of law would then be no more than "might makes right" writ large. Such decides too many issues in response to too many different coalitions. This fact, by itself, would require a different form of analysis from that which would suffice to explain entitlements resulting from more direct and decentralized uses of "might 4 For an excellent presentation of this general point by an economist, see Samuels, Interrelations Between Legal and Economic Processes, I4 J. LAw EcoN, 435(I97r) We do not intend to imply that the state relies on force to enforce all or most ly force wo win. The use by the state of feelings of obligation and rules of morality as means of enforcing most entitlements is not only crucial but terribly efficient. Conversely, bsent the state, individuals would probably agree on rules of behavior which rould govern entitlements in whole series of situations on the basis of criteria ther than "might makes right. "That these rules might themselves reflect the same for legal entitlements is, of neither here nor there. What is important is that these social compacts" would no less than legal entitlements, give rise to what may be called obligations. These ehave in accordance with the particular cases regardless of the existence of a predominant force. In this article HeinOnline 85 Harv. L Rev. 1090 1971-1972HARVARD LAW REVIEW criminal sanctions in order to demonstrate how the model enables us to perceive relationships which have been ignored by writers in those fields. The first issue which must be faced by any legal system is one we call the problem of "entitlement." Whenever a state is pre￾sented with the conflicting interests of two or more people, or two or more groups of people, it must decide which side to favor. Absent such a decision, access to goods, services, and life itself will be decided on the basis of "might makes right" -whoever is stronger or shrewder will win.' Hence the fundamental thing that law does is to decide which of the conflicting parties will be en￾titled to prevail. The entitlement to make noise versus the en￾titlement to have silence, the entitlement to pollute versus the entitlement to breathe clean air, the entitlement to have children versus the entitlement to forbid them - these are the first order of legal decisions. Having made its initial choice, society must enforce that choice. Simply setting the entitlement does not avoid the problem of "might makes right"; a minimum of state intervention is always necessary.' Our conventional notions make this easy to compre￾that a rather different approach may shed on problems frequently looked at pri￾marily from a legal process point of view. As Professor Harry Wellington is fond of saying about many discussions of law, this article is meant to be only one of Monet's paintings of the Cathedral at Rouen. To understand the Cathedral one must see all of them. See G. HAMILTON, CLAUDE MONET'S PAINTINGS or ROUEN CATHEDRAL 4-5, 19-20, 27 (196o). ' One could of course look at the state as simply a larger coalition of friends designed to enforce rules which merely accomplish the dominant coalition's desires. Rules of law would then be no more than "might makes right" writ large. Such a view does not strike us as plausible if for no other reason than that the state decides too many issues in response to too many different coalitions. This fact, by itself, would require a different form of analysis from that which would suffice to explain entitlements resulting from more direct and decentralized uses of "might makes right." 4 For an excellent presentation of this general point by an economist, see Samuels, Interrelations Between Legal and Economic Processes, 14 J. LAW & EcoN. 435 (1971). We do not intend to imply that the state relies on force to enforce all or most entitlements. Nor do we imply that absent state intervention only force would win. The use by the state of feelings of obligation and rules of morality as means of enforcing most entitlements is not only crucial but terribly efficient. Conversely, absent the state, individuals would probably agree on rules of behavior which would govern entitlements in whole series of situations on the basis of criteria other than "might makes right." That these rules might themselves reflect the same types of considerations we will analyze as bases for legal entitlements is, of course, neither here nor there. What is important is that these "social compacts" would, no less than legal entitlements, give rise to what may be called obligations. These obligations in turn would cause people to behave in accordance with the compact in particular cases regardless of the existence of a predominant force. In this article 1o9o [Vol. 85:1o89 HeinOnline -- 85 Harv. L. Rev. 1090 1971-1972