The Jurisprudence Of Polycentric Law

The University of Chicago

School of Law



A Paper Submitted to

Professor Richard A. Posner



In Accordance with the Requirements of

482: Jurisprudence

&

499: Independent Research





by

Tom W. Bell



Chicago, Illinois

August, 1992

[[Note: I wrote this unpublished manuscript for two consecutive classes taught by Prof. Richard A. Posner at the University of Chicago School of Law. Apart from a few non-substantive edits in the nature of formatting, this HTML document faithfully reproduces the content of the original paper. Notation such as "[p. 1/p. 2]" indicates the print version's pagination. Comments such as this one, in double brackets, correct and update the original version. I may yet seek publication of this paper, and so warmly welcome comments and suggestions. Please send them to tomwbell@tomwbell.com. (C) 1992-9 Tom W. Bell. All rights reserved.]]

Outline

The Jurisprudence of Polycentric Law

by

Tom W. Bell

INTRODUCTION

What has jurisprudence got to do with statism? Most people scarcely separate the two. When attempting to justify the State they routinely cite the need for an independent and objective means of resolving disputes.[1] And when they think of jurisprudence, most people think of what judges do as State officials and what academics say about State courts. But nothing in the formal definition of jurisprudence necessarily binds it to statism. "Jurisprudence in its widest sense is the science of law."[2] This description leaves ample room for the jurisprudence of non-statist, or "polycentric," law. [p. 1/p. 2]

The ubiquity of statist jurisprudence comes in part from the influence of legal positivists and analytic philosophers, who typically view State law as the only kind of law.[3] But even those who justifiably reject this cramped definition have failed to recognize the possibility of developing a jurisprudence for polycentric legal systems. If pressed for a reason, they might well appeal to rational ignorance. State courts already provide scholars with more material than they can easily digest. In contrast, polycentric law tends to surface only in footnotes about the dark ages--if at all. Statist jurisprudence commands attention as a direct and powerful influence on nearly every aspect of modern life. But when was the last time a polycentric court jailed a felon, issued an injunction, or fined a polluter?

Ignoring the jurisprudence of polycentric law is not rational however; it is simply ignorant. I say this without malice, as a simple fact about prevailing academic trends. Even one who with good intent sought to learn more about polycentric law would find little about its practice and virtually nothing about its [p. 2/p. 3] jurisprudence. The pages that follow constitute an attempt to help correct this deficiency.

Because polycentric law has drawn so little attention before now, Part I concentrates on defining necessary terminology. It sets forth "polycentric law" as the generic term for non-statist legal systems, and designates "customary law" and "privately produced law" as its proper subsets.

This groundwork in place, the paper moves on to its main task: developing a theory of the jurisprudence of polycentric law. It adopts a two-tier approach, considering jurisprudence at both the object-level and the meta-level. Part II takes the former point of view, describing the internal workings of polycentric legal systems through historical and theoretical examples. It establishes not only that law can live without the State, but that jurisprudence can too.

Part II's object-level analysis mimics that of conventional jurisprudence, which concentrates on how State authorities interpret the law and resolve conflicts rather than on where they get the authority to do so. Conventional jurisprudence seldom concerns itself with justifying the power of State authorities.[4] It leaves that task to political philosophy, for modern [p. 3/p. 4] justifications of the State automatically grant it judicial functions.[5] But the present inquiry separates statism from jurisprudence. Part III thus discusses jurisprudence at the meta-level in an attempt to justify polycentric law as more equitable and efficient than the statist alternative.

I. DEFINING FEATURES OF POLYCENTRIC LAW

Academics have generally ignored law arising from any source other than the State. Even more seldom have they addressed non-statist law in purely legal terms, rather than in economic, historical, or anthropological ones. And no one has ever given the jurisprudence of non-statist law serious and sustained attention. Before this paper delves any deeper into its subject, then, this Part will map its outlines and name its primary features.

Trying to develop a theory of the jurisprudence of non-statist law will accomplish little if no such thing exists. This project must therefore begin by establishing that social regulation arising from other than statist origins merits the sobriquet of "law." Legal positivists and analytic philosophers tend to deny that it can.[6] But they can defend this view only by ignoring historical examples of customary and privately produced [p. 4/p. 5] legal systems,[7] or by stretching the meaning of "State" beyond recognition.[8] This paper therefore adopts a definition of law generous enough to include non-statist alternatives: "law is the enterprise of subjecting human conduct to the governance of rules."[9]

Using "polycentric law" distinguishes the subject at hand from the statist alternative.[10] The doctrine of statism favors granting one authority regulated coercive powers to maintain a [p. 5/p. 6] monopoly on the use of any coercion within a geographic area.[11] In contrast, polycentrism opposes coercively imposed monopolies. Polycentric law recognizes each agreement that governs the behavior of the parties who consent to its terms as a potential source of law.[12] These agreements may be either implicit and customary, or explicit and contractual. This paper discusses both. Polycentric laws can originate in acts which are primarily legislative in character, as when members of a club write a constitution to regulate their affairs, or from acts which are primarily adjudicative in character, as when merchants submit a dispute to private mediation. The task at hand calls for focusing on the latter source of polycentric law.

If not ideal, "polycentric law" works better than any alternative name for non-statist law. Simply using "non-statist law" would cast the matter in purely negative terms. Parallels with free banking (the private issue and regulation of money) [p. 6/p. 7] suggest that "free law" might be appropriate.[13] The phrase lacks grace, however.[14] Randy E. Barnett has sometimes used "nonmonopolistic law."[15] This term rightfully indicates that polycentric law encourages free and open competition between overlapping jurisdictions.[16] This structural feature arises incidentally, however, out of polycentric law's more fundamental procedural requirement that each person consent to the jurisdiction under which he or she lives. Examining a quite small geographic area,[17] or a larger one in which all parties had freely chosen the same legal system, would present one with an apparently [p. 7/p. 8] monopolistic polycentric legal system.[18] Still other accounts label non-statist law with variations on "private."[19] Here, though, I reserve that term for a particular subset of polycentric law.[20]

The "polycentric" in "polycentric law" refers primarily to the process by which laws develop in customary and purely private legal systems: by parties consenting to abide by a set of laws rather than by one authority coercively imposing them.[21] "Polycentric" does not speak to the substance of those laws; there is no guarantee, for example, that a polycentric legal system will tolerate polygamy, polytheism, and polyglotism. Nonetheless, much of the appeal of polycentric law comes from the expectation that it will encourage the development of legal systems that leave individuals with as much liberty as is compatible with like liberty for all. Few people would chose to submit to a regime of [p. 8/p. 9] legal slavery. But what if they do? The distinction between how polycentric law arises what polycentric law is may break down such extreme cases, as Part III discusses below. Generally, though, the account given here will emphasize procedure over substance. Doing so will help to avoid placing too much reliance on contentious claims about the content of natural laws. This paper intead applies "legal naturalism," a process-oriented counterpart to the theory of natural law.[22]

Polycentric law contains two broad subcategories: customary law and privately produced law.[23]Customary law develops organically over extended periods of time, has no single known origin (although myths may claim otherwise), and blends into the other customs of those who practice it. Others scholars have referred to customary law as folk law, people's law, unofficial law, indigenous law, or primitive law.[24] Privately produced law, on the other hand, springs fully developed in accordance with the intentions of known parties and stands apart from custom as a [p. 9/ p. 10] service to which those living under it have consciously agreed.[25] "Privately" here serves only to distinguish this means of producing laws from public (that is, statist) means. It by no means indicates that privately produced law remains hidden from public view or has no impact on society at large. Nor does it imply concern for only torts, contracts, and the other areas of law traditionally known as "private."

These definitions of customary law and privately produced law do not lay down necessary and sufficient conditions, but rather describe paradigm cases. Here, as with so much within the scope of jurisprudence, bright lines fade under close scrutiny. Customary law may change suddenly under the hand of an especially influential judge, while privately produced law often borrows generously from customary precedents. In these and other ways the boundaries between customary law and privately produced law can grow fuzzy. In order to define these terms more fully, Part II goes beyond terse definitions to examine the actual practice of polycentric law.

II. OBJECT-LEVEL JURISPRUDENCE OF POLYCENTRIC LAW

Developing a complete theory of the jurisprudence of polycentric law requires an object-level description of how non-[p. 10/p. 11]statist legal systems work. One wants, for example, to know how they settle disputes, draw jurisdictional boundaries, and resolve conflicts of law. Luckily, historical examples of polycentric legal systems abound. Section A examines a few in order to illustrate both their richly diverse details and their generally consistent principles. It then implements these principles in a portrait of a hypothetical modern polycentric legal order. Because object-level jurisprudence generally feeds on case histories, Section B completes defends polycentric law from claims that it underproduces precedents.

A. Polycentric Law in Practice

Two quite amazing discoveries await the budding student of polycentric law. The first comes when he realizes that polycentric law has flourished throughout history and across the globe. Once he learns how to recognize it, he sees polycentric law virtually everywhere--in churches, clubs, trades, and countless other settings where people associate freely and regularly. State law begins to look less and less significant.

Our student's next shock comes when he observes legal scholars and political philosophers routinely ignoring polycentric alternatives to statist law. They instead recognize only two options: State or chaos.[26] Though unfortunate in itself, this [p. 11/p. 12] error has still worse effects on the quality of jurisprudential discourse.[27] Establishing State law as the sole bulwark against social disorder makes justifying it all too easy. Bruce A. Ackerman, for example, proclaims that a world without State law "would simply be a world where everybody is free to grab anything he can without ever being obliged to justify his conduct before any institution charged with settling disputes."[28] In the hands of State officials this false dichotomy is not only inaccurate but dangerous. When the Supreme Court cites it an assault on individual liberty usually follows close behind.[29] [p. 12/p. 13]

This all goes to show that one's views about the viability of polycentric law have a powerful impact on one's jurisprudence.[30] Those who, like the student portrayed above, know something about the law's hidden history tend to look skeptically on statists who cry "Anarchy!" Subsection 1 thus examines a few working examples of customary and purely private legal systems in order to encourage fuller appreciation their strength, resilience, and sophistication. But demonstrating that polycentric law offers a viable alternative to State law requires more than case studies from lost times or small, insular societies. It calls for a convincing account of how polycentric law can work here and now. Subsection 2 therefore models a privately produced legal order for the present world by building a modern service industry around customary law's time-tested features.

1. Historical examples of polycentric legal systems

Working examples of polycentric legal systems fall into two broad classes: those that regulate impersonal relations in the commercial sphere and those that regulate interpersonal relations in the [p. 13/p. 14] social sphere. While these may appear to be radically different settings, they in fact share features that are crucial for encouraging the growth of polycentric legal systems. Statist law can rely on overarching coercive powers to enforce its rules. Polycentric law, on the other hands, depends on each individual recognizing the benefits of behaving in accordance with others' expectations--so long as they likewise behave as he or she expects.[31]

This reciprocal relationship undergirds acknowledgment of the duty to obey the law in a polycentric system.[32] Fuller suggested three conditions for making this duty clear and acceptable to those who would choose to live by it:

First, the relationship of reciprocity out of which the duty arises must result from a voluntary agreement between the parties immediately affected; they themselves "create" the duty. Second, the reciprocal performances of the parties must in some sense be equal in value. . . . We cannot speak here of an exact identity . . . what we require is some measure of value that can be applied to things that are different in kind. Third, the relationships within the society must be sufficiently fluid so that the same duty you owe me today I may owe you tomorrow--in other words, the relationship of duty must in theory and practice be reversible.[33]

Fuller noted with some surprise that a society of economic traders is most apt to satisfy these conditions.[34] A review of [p. 14/p. 15] polycentric law in the commercial arena will support this prediction. But Fuller's conditions also hold true for more conventional sorts of societies, as examining polycentric social law reveals next.

a) Polycentric social law.

As for the sophistication of polycentric law in primitive societies, it derives not from masterful legislation but from time, trial, and error. These customary legal systems arise spontaneously out of the undirected actions of individuals seeking [p. 15/p. 16] common standards for mutual coordination.[37] This is not to say, however, that customary legal systems move only subject to imperceptible and anonymous social forces. Particularly influential figures sometimes effect changes suddenly and self-consciously.

Leopold PopÍsil's work with the Kapauku Papuans of West New Guinea provides an excellent study of the structure, origins, and operation of polycentric law in a primitive society.[38] The Kapauku have no formal government with coercive powers. Healthy, rich, and well-respected men called tonowi establish jurisdictional boundaries and settle disputes in the Kapauku legal system.[39] Each individual can choose to contract with any available tonowi by accepting loans in exchange the performance of certain duties. Either party can break this reciprocal bond at will (by either paying off the debt or demanding its repayment).[40]

Each individual in the Kapauku society typically belongs to several nested groups simultaneously, with groups at each level having their own particular set of rules and sanctions.[41] To settle potential jurisdictional conflicts, Kapauku custom requires that disputes be heard by the tonowi of the least inclusive group [p. 16/p. 17] that includes both litigants as members.[42] The litigants usually "file a claim" by engaging in a loud, ritualistic quarrel designed to attract the attention of their tonowi. Once on the scene, the tonowi listens to the exchange until it nears violence, admonishes the parties calm themselves, and then launches into an investigation by questioning the disputants, taking testimony from witnesses, and searching for evidence.[43]

Once he has reached a conclusion as to how to settle the case, the tonowi sums up the evidence, cites the relevant rules and precedents, and sets about convincing the disputants to abide by his suggested remedy.[44] One who refuses to abide by a decision that the community recognizes as just faces ostracism via public reprimand or outlawry. The public reprimand is "the most dreaded and feared of the psychological and social sanctions of the Kapauku . . ."[45] Outlawry, by nullifying the reciprocal agreements that protect law-abiding Kapauku, exposes those who refuse to respect the law to murder or banishment.[46]

Substantively speaking, the Kapauku legal system consistently supports two basic values: individualism and personal freedom.[47] [p. 17/p. 18] A guilty defendant, for instance, typically gets to choose between paying the victim compensation or suffering physical punishment. Although the Kapauku favor the former sanction, they regard it as insufficient punishment for a few particularly serious crimes. Even for these, however, "a heinous criminal or a captured enemy would be killed but never tortured or deprived of liberty."[48] And those thus sentenced would always have the chance to run or fight back.[49] The Kapauku regard private property so highly that they eschew communal ownership of any sort. One man explained that "If we were both owners we would quarrel too much, we would steal from each other in order to obtain most from the field. My children and wives would probably go hungry--oh, it would be bad."[50]

Despite this steadfast commitment to bedrock values, the Kapauku legal system readily adapts to new circumstances. First, the law responds to changes in customary behavior. This occurred, for example, when inflation in the price of wives eroded support for the rule that adulterous women be killed by their husbands. The rule was eventually abolished.[51] Second, a particularly influential individual can "legislate" a change in the laws. PopÍsil observed this process in the machinations of a love-stricken tonowi who cleverly revised an old rule of sib exogamy to allow him to overcome a prohibition on marriages between second [p. 18/p. 19] cousins. Though hecould not force this rule on others, its popularity slowly spread as others accepted his reasoning.[52]

Kapauku society provides only one example among many of "primitive" polycentric legal systems that protect rights to person and property through sophisticated procedures. Researchers have found similar features in the legal systems of the Yurok of Northern California,[53] the Comanche,[54] the Ifuago of Northern Luzon,[55] and the people of medieval Iceland.[56] Examples of polycentric legal systems have also appeared in less exotic locales, such as Anglo Saxon England,[57] Celtic Ireland,[58] and early medieval Europe.[59] [p. 19/p. 20]

In more modern times, polycentric legal systems regulating social behavior have begun to cross the line between customary law and privately produced law. This is particularly true in America, which has long enjoyed a rich variety of voluntary associations. Polycentric law has served American communities isolated by cultural barriers, such as those made up by newly arrived immigrants,[60] and by spatial barriers, such those of the western pioneers.[61] Even people with free access to the U.S. legal system routinely choose to join self-regulating private associations.[62] Under our definition of the term, each of these private associations creates its own "law." Fuller explains:

If the law is considered as "the enterprise of subjecting human conduct to the governance of rules," then this enterprise is being conducted, not on two or three fronts, but on thousands. Engaged in this enterprise are those who draft and administer rules governing the internal affairs of clubs, churches, schools, labor unions, trade associations, agricultural fairs, and a hundred and one other forms of human association. . . . there are in this country alone "systems of law" numbering in the hundreds of thousands.[63]

b) Polycentric commercial law.

The Maghribi traders coped with the uncertainty and complexity of their market by forming business associations. This allowed them to reduce the costs of trade by establishing ties in foreign ports, diversifying risks, tapping others' expertise.[65] But the Maghribi could not count on State coercion to enforce their contracts. Instead they developed a system that appealed to merchants' economic self-interest: one who developed a reputation for reneging on his agreements would lose the benefits of the coalition's services. [p. 21/p. 22]

The Maghribi traders followed an implicit contract to employ only coalition members as agents and to pay them optimal wages.[66] The traders also agreed not to employ any agent who had been caught cheating a fellow member.[67] Furthermore, if an agent who was caught cheating operated as a merchant, coalition agents who cheated him in turn would not be held by other coalition members to have actually cheated.[68] Together with other refinements, these principles established a mechanism for enforcing contracts between the self-interested traders. "By establishing ex ante a linkage between past conduct and future utility stream, a trader could acquire a reputation as honest, that is, he could credibly commit himself ex ante not to breach a contract ex post."[69]

The Maghribi traders' coalition represents only one of several customary legal systems that have arisen to meet the special needs of commerce. The Law Merchant (Lex Mercatoria) represents a more sophisticated and well-known one.[70] Whereas the relatively small size of the Maghribi traders' coalition allowed it to rely on a reputation mechanism, the pressures of dealing with a larger market led the Law Merchant to introduce a system of [p. 22/p. 23] private adjudication.[71] Its judges, drawn from the commercial ranks, settled the disputes of itinerant merchants throughout early Medieval Europe with speed and consistency by applying the customary rules of international trade. Like the Maghribi traders' coalition, the Law Merchant won its influence not through the use of coercion, but by threatening to ostracize cheaters from a community built on reciprocal commercial relationships.[72] Unlike the Maghribi traders' coalition, however, the Law Merchant survives to this day in international law and customary business practices.[73] [p. 23/p. 24]

As businesses have grown increasingly impatient with the long delays and high costs of State legal systems, new customary commercial legal systems have come into being. A recent count uncovered about 600 private dispute resolution services in the U.S. alone.[74] The largest of these, the American Arbitration Association, reported 52,520 case filings in 1989--an increase of 36% from 1980's figures.[75] AAA's success has encouraged other firms to enter the dispute resolution business, and they too have thrived. Judicial Arbitration & Mediation Services expects to hear 14,000 cases in 1992 and see sales grow to 30 million, up 25% from last year.[76] In March of 1987, Judicate Inc. employed 308 former judges to reside in its private courtrooms.[77] Now it boasts of having over 600.[78] Washington-based EnDispute Inc. also reports expansion plans.[79] These modern alternatives to the statist legal order begin to cross the line dividing customary from privately produced law, for while they usually settle disputes by encouraging parties to set their own standards or by referring to practices of the trade, they have known origins and jurisdictions defined by formal relations and express consent. [p. 24/p. 25]

2. Portrait of a modern polycentric legal order.

The spontaneous and voluntary nature of polycentric law makes it impossible to predict exactly what form it would take were it to supplant statist law in the near future. Nonetheless, referring to historical precedents and applying general theories of social behavior leads to a plausibly realistic portrait of a modern polycentric legal order.[80] Customary legal systems provide an excellent resource for distilling time-tested principles of polycentric law. After a wide review of the field, Benson concludes that customary legal systems tend to share six features in common:

1) a predominant concern for individual rights and private property;

2) laws enforced by victims backed by reciprocal agreements;

3) standard adjudicative procedures established to avoid violence;

4) offenses treated as torts punishable by economic restitution; [p. 25/p. 26]

5) strong incentives for the guilty to yield to prescribed punishment due to the threat of social ostracism; and

6) legal change via an evolutionary process of developing customs and norms.



These same timeless features ought to appear in the customary law of a modern polycentric legal order. But that will probably represent only a fraction of its law. Most will probably come from purely private sources that sell legal services for profit on the free market. As observed above, privately produced law mirrors customary law in nearly everything but its origins and mode of change.[81] That being the case, privately produced law in a modern polycentric legal order to embody all of the six features Benson identified but the last.[82]

The very definition of polycentric law implies that individuals choose the sort of law under which they prefer to live. In a broad sense, then, all legal issues in a polycentric legal order would boil down to the law of contracts.[83] In a narrower sense, however, competing legal systems would offer substantively different means of resolving disputes over property, torts, business agreements, etc. A wide variety of communities [p. 26/p. 27] should therefore develop, sometimes overlapping and sometimes separate, each offering its own unique sets of laws.

Some critics have maintained that polycentric law would thus generate a confusing hodgepodge of conflicting jurisdictions.[84] But insofar as bridging the differences between jurisdictions would generate economies of standardization, legal entrepreneurs would leap into action. The success of the Law Merchant demonstrates not only that polycentric legal systems generate solutions to jurisdictional conflicts, but that they do so with far greater ability than do statist alternatives. A fully polycentric legal order would not only harbor institutions such as the Law Merchant to mediate relations between competing jurisdictions; it would also see "treaties" and "confederations" develop between legal systems eager to offer their customers lower transaction costs.[85] Meanwhile, private communities would remain free to enforce the laws of their choosing within their walls and among their members.

Parties with commercial disputes in a polycentric legal order would probably resolve them as many merchants and professionals do now: by relying on informal agreements, customary rules, trade associations, and private dispute resolution agencies.[86] Conflicts [p. 27/p. 28] that arise in the social arena, however, may call for different solutions.

The history of customary legal systems indicates that a polycentric legal order would probably treat crimes as intentional torts, with victims earning rights to restitution from those who violate their rights. A purely private system should do so as well, for restitution would appeal both to potential victims purchasing legal protection and to legal services unable to rely on taxes and unwilling to pass on to customers all the costs of apprehending criminals. A lawbreaker would at a minimum owe enough to cover her victim's losses[87] and the costs incurred by those who bring her to justice.[88] As in the Kapauku and other customary legal systems, a purely private legal system might regard restitution as inadequate punishment for especially heinous crimes.[89] It bears noting, however, that private law enforcement agencies would themselves face fines for overzealous enforcement. [p. 28/p. 29]

Few victims of tort, intentional or otherwise, would themselves track down tortfeasors and demand restitution. Rather, they would transfer their rights to restitution to bounty hunters for cash or to insurance agencies for policy payments. Competition and specialization in the business of pursuing lawbreakers would ensure the development of highly effective enforcement mechanisms. Although this would deter crime overall, the restitutional features of a polycentric system would inhibit third parties from free-riding on the positive externalities of efficient law enforcement.[90]

The combination of transferable rights to restitution and insurance agencies specializing in risk assessment would encourage the development of sophisticated intermediary institutions. Just as free banking gave birth to clearinghouses where rival banks met to exchange notes and settle accounts, a polycentric legal order would see the rise of institutions through which insurance companies could balance claims to restitution. And as in free banking, clearinghouses for claims to restitution would naturally [p. 29/p. 30] assume other roles, such as developing industry standards, rating insurance companies, and keeping tabs on risky clients.[91]

Though the modern polycentric legal order described here offers many advantages over the statist alternative, it must still face two problems that bedevil all legal systems: conflicts of laws and outlawry. Given the inevitability of these problems, the issue is merely whether a polycentric legal order can cope with them at least as well as a statist one. Utopia is not an option.

Despite intermediary legal institutions and treaties, the overlapping and competing jurisdictions of a polycentric legal system would probably give rise to conflicts of laws from time to time. Torrents of research, debate, and litigation have failed to bring scholars and judges near agreement on how statist legal systems should cope with such problems.[92] The leading modern theory, interest analysis, advocates applying the law of the jurisdiction having the strongest policy interests in the case under consideration.[93] But critics have attacked interest analysis on the grounds that courts have no reasonably accurate means of measuring the strength of the convictions that underlie [p. 30/p. 31] conflicting laws.[94] The failure of interest analysis follows inevitably from the coercive nature of statist law, which cannot help but distort, mask, and ignore the preferences of those subjected to its jurisdiction.

Interest analysis would flourish in a purely private legal system, however. Judges in such a system have a ready measure of the interests underlying conflicting laws: their prices. Here as elsewhere market prices track consumers' subjective preferences. If faced with an otherwise inescapable conflict of laws, then, a judge in a purely private legal system could determine which jurisdiction has the strongest interest at stake by comparing the fees charged for providing the laws at issue. Alternatively, a judge could allow parties from conflicting jurisdictions to bid for the right to have their laws enforced, with the winner's bid going to the loser. David Friedman notes that such a market in laws will tend to protect individual rights because people "are willing to pay a much higher price to be left alone than anyone is willing to pay to push them around."[95] [p. 31/p. 32]

With regard to outlawry, too, a polycentric legal order offers advantages over its statist counterpart. Some individuals will always refuse to cooperate with the enterprise of law; thousands do so now, and many of these would remain unmoved even by the opportunity to live under the laws of their choosing. A polycentric legal system would ignore such renegades so long as they refrain from violating others' rights.[96] Once a renegade breached the peace of a polycentric legal system, however, he would feel the burden of its laws. He would then have to either accept the jurisdiction of its courts or suffer ostracism from the community of law-abiding folk.[97]

Once made an outlaw, the renegade would lose all legal protections of his property and person. His enemies could thus seek him out and extract restitution or revenge at their discretion.[98] The outlaw would moreover find it difficult to [p. 32/p. 33] benefit from relations with even those he had not directly offended, for insurance companies would have marked him as a bad risk in their shared data bases. Employers, business partners, landlords, and others with good reason to avoid lawbreakers would draw on these data bases to check the "legal credit" of otherwise unknown parties. This service would support the ostracism of outlaws by making reputational information widely available and pose an increasingly effective deterrent as technological advances make it easier to record and access legal credit ratings.

B. Jurisprudence in a Polycentric Legal Order

Insofar as jurisprudence concerns the work of judges, rather than academics' running commentary, it would continue unabated in a polycentric legal order. Disputes would still arise and specialists would still resolve them. Not all these specialists would "judge" in the usual sense of the word. Many would resolve disputes through mediation or adjudication rather than by balancing the arguments of professional adversaries against a huge body of written law. But understood as an application of the science of law, practical jurisprudence would live on. [p. 33/p. 34]

Although one can only speculate about what jurisprudential techniques would develop in a polycentric legal order, every one of them would have to meet consumer demand. It seems safe to assume then, that freewheeling legislation from the bench would quickly pass from favor. Consumers rely on steady legal foundations for their long-term plans.[99] Judges who tried to force rapid and radical changes on a polycentric legal system would no doubt soon find they had violated the terms of their employment. A polycentric legal order would thus support many, but not all, forms of practical jurisprudence.

Insofar as jurisprudence concerns not the practice but the theory of law, however, questions arise about its survival in a polycentric legal order. Precedents serve as grist for the mills of jurisprudence, providing raw data for judges and scholars to work into theories about the science of law. A dearth of precedents would thus put theoretical jurisprudence at risk. Some scholars have characterized precedents as positive externalities that customary and purely private legals systems cannot help but underproduce.[100] Only State courts, these scholars suggest, can [p. 34/p. 35] provide the precedents upon which theoretical jurisprudence feeds. Such arguments obviously threaten the present attempt to develop a comprehensive jurisprudence of polycentric law.

But although precedents can serve as positive externalities, it does not automatically follow that polycentric courts will underproduce them. Private profit-making firms often generate positive externalities and tolerate free-riders.[101] Here, as always, the question is whether the benefits of doing so outweigh the costs.[102] Will polycentric legal systems will find it worthwhile to enter the precedent production business? The historical record suggests that they will.

Customary legal systems have proven quite generous in producing precedents. Even judges in primitive societies justify their decisions by reference to prior cases.[103] Twelfth century commonlaw courts began to hear commercial cases in earnest only after borrowing precedents from the Law Merchant.[104] Even today, occasional infusions of customary legal precedents help to keep [p. 35/p. 36] State courts in touch with real-world business practices.[105] Although Landes and Posner claim that commercial arbitrators generally apply precedents from statist sources,[106] history shows that polycentric legal systems can readily produce their own precedents. Perhaps modern commercial arbitrators would do so more often if the State did not demand that they apply its own laws.[107]

Getting down to specifics, Landes and Posner offer three arguments why private judges would produce precedents in too little quantity and of too low a quality. They first argue that "because of the difficulty of establishing property rights in a precedent, private judges may have little incentive to produce precedents."[108] They next argue that independent judges would destroy the value of precedents by issuing a hodgepodge of inconsistent decisions.[109] Lastly, they argue that private judges would avoid issuing precise rules of any sort, since "Any rule that clearly indicates how a judge is likely to decide a case will assure that no disputes subject to the rule are submitted to that judge since one party will know that it will lose."[110] [p. 36/p. 37]

This paper has already demonstrated how a polycentric legal order would solve these problems. History shows that polycentric legal systems have found ways to internalize enough of the benefits of generating precedents to ensure their continued production, and realistic projections show how they might continue to do so in the future.[111] The transaction costs imposed by conflicting jurisdictions encourages the development of intermediary legal institutions and agreements for avoiding conflicts of laws.[112] And since organizations in a polycentric legal order either provide their own judicial services or purchase them under contract, judges would have incentives to provide clear rules to help their clients avoid unnecessary litigation.[113]

Landes and Posner might well agree with all of this, however. In the final analysis their arguments about the underproduction of precedents target not polycentric law as we know it, but something else altogether: a system where free-lance judges offer their services independently of any preexisting organizations. "A voluntary system of dispute resolution does not presuppose that the dispute has arisen from a consensual relationship . . . in which the method of dispute resolution is agreed on before the [p. 37/p. 38] dispute arose. All that is necessary is that when a dispute does arise the parties to it choose a judge to resolve it."[114]

Landes and Posner strike telling blows against the sufficiency of these atomistic courts.[115] And history supports their indictment, as no legal system appears to have had much use for the sort of judicial service they describe. A free-standing court may help to resolve a dispute between parties who can enforce its judgment by threatening to end a mutually beneficial relationship, but few disputants share such intimate and well-balanced bonds. That is why the polycentric legal systems described here, as opposed to the target drawn by Landes and Posner, depend on rich networks of voluntary institutions to enforce judgements. Courts in a fully developed polycentric legal order play merely one role in the larger project of cooridinating social behavior.

Landes and Posner agree that such a polycentric legal order will have no problem producing precedents.[116] They simply doubt that the mechanisms of reputation and ostracism can work [p. 38/p. 39] effectively at scales where statist legal systems now hold sway.[117] That contention merits debate,[118] but for now it suffices to note that a polycentric legal order promises to produce enough precedents to ensure the continued survival of theoretical jurisprudence.[119]

The discussion to this point establishes that polycentric law poses no threat to practical and theoretical jurisprudence. But this only addresses legal science at the object level. What about meta-level jurisprudence, which concerns the justification of legal systems? Here, polycentric law might have profound effects. Modern justifications of statist law aim primarily at apologizing for its imposition on unwilling parties. But no one need justify that which is freely choosen. Apart from pointing out that people should abide by their voluntary agreements to follow the law, [p. 39/ p.40] meta-level jurisprudence in a polycentric legal order would have little more to do than grapple with marginal problems involving conflict of laws and outlawry. But meta-level jurisprudence receives so little attention now that this reform should alarm no one. Some may even welcome the chance to escape from legal metaphysics. Until such time, however, meta-level jurisprudence continues to pose interesting and important problems. The next Part will grapple with some of them. [p. 40/p. 41]

III. META-LEVEL JURISPRUDENCE OF POLYCENTRIC LAW

So far this paper has stuck to the nuts and bolts of polycentric law, discussing what it is in Part I and how it works in Part II. But now it grapples with a more esoteric question: Why favor polycentric law over statist law? Part III seeks an answer in meta-level jurisprudence, attempting to justify polycentric law as more equitable and efficient than the statist alternative.

Depending on how one views the problem, justifying polycentric law appears either trivially easy or terribly difficult. Easy, because people live under the laws of their choosing in a polycentric legal order. They thus care not so much for justifications as for consumer satisfaction. But the project of justifying polycentric law runs into old and thorny problems when it addresses a more critical audience:[120] third party statists who would deny others the right to freely market and purchase legal services. This audience demands more than a mere justification of polycentric law standing alone; it demands a justification of citizens' alleged rights to escape the reach of statist law. Satisfying this demand calls for proof that polycentric law is more justified than statist law. Section A responds to the challenge by taking a fresh look at standards of justification. It argues that the success of a justification [p. 41/p. 42] should be measured by how nearly it comes to obtaining the express consent of those to whom it would apply. Section B applies this standard and finds polycentric law to be more justified than statist law.

A. Standards of Justification

Political philosophy has seen many attempts to justify statism.[121] None has yet proven conclusive; the debate continues unabated and has even heated up in recent years.[122] Great uncertainty thus surrounds the justification of statism, and by extension of statist law. Fortunately, justifying polycentric law does not require reviewing and refuting every plausible argument for the statist alternative. It only requires showing that polycentric law is the more justified of the two. [p. 42/p. 43]

Toward that end, the present section examines the nature of justification. In the first place, it argues that express consent sets the ideal standard for a successful justification. Secondly, it explains why this standard calls for relative evaluations of justifications. These two steps lay the groundwork for the argument in section B that statist law can never be fully justified, and can never be as justified as polycentric law.

1. Express consent as the ideal standard for justification

A justification is an argument designed to persuade a person that a set of conditions is or would be just. Because it seeks with good intent to win the informed approval of its audience, a justification cannot rely in any measure on coercive techniques. It succeeds only through consent.

This description of justification should not raise any eyebrows. It fits the way people use the term in everyday speech.[123] No one normally claims, for example, that a mugger's firearm justifies his demands. Everyone agrees, on the other hand, that a tenant is justified in holding her landlord to the terms of the lease he has signed.

Keeping the commonsense use of "justification" in mind draws forth another of its features: the superiority of express consent. [p. 43/p. 44] Only express consent reliably signals that a justification has achieved its objective. A successful justification must therefore come as near as possible to obtaining the express consent of persons to whom it would claim to apply.

Even when circumstances preclude obtaining express consent, it continues to set the standard for judging popular surrogates such as hypothetical and implied consent.[124] Again, this account fits common usage. A doctor who chances upon an unconscious man cannot justifiably rush him off to surgery without first checking to see if he is merely napping. Nor, if she finds he has in fact suffered a heart attack, can she justifiably assume that he would prefer death to having a stranger open his shirt.

Although this account of justification does not favor any particular means of recording and measuring express consent, it does assume that adequate procedures exist. Contract law already provides reasonable, well-tested, and widely-accepted ones.[125] A polycentric legal system could record and measure consent by any procedure, however, so long as people freely agree to live by it.

But this appears to raise a boot-strapping problem. What standard ratifies one's initial agreement to live by a procedure for recording and measuring consent? No ex post ratification will suffice, for it would allow a tyrant to lay down a definition by [p. 44/p. 45] which her victims "consent" to her rule. An ex ante ratification, on the other hand, will fail to carry the full weight of law.

Nonetheless, people can duly ratify a legal procedure for recording and measuring consent. They do so by consenting to it in the everyday sense of the word. This ex ante definition loses nothing by predating the legal one; rather, it ranks first in time and importance. "Consent" does not emerge from a contextual vacuum. Instead it comes already shaped by long use and frequent application. A well-crafted legal procedure for recording and measuring consent does not so much define the term as capture what people already understand "consent" to mean.[126]

Persons shopping for legal systems will thus do so with an eye to this ex ante understanding. They will refuse to consent to, and thus ratify, a legal procedure for recording and measuring consent if it fails to map onto what they take the word to mean. And should such a procedure be forced on persons by dint of the legal system's warped definition of "consent," they can make their hermeneutical differences clear by vocal and physical resistance.[127] Note, however, that even though a legal system may [p. 45/p. 46] aim at satisfying the subjective preferences of the parties to whom it offers services, it can never have direct and reliable access to that information. A legal system thus only bears the burden of responding to observable behavior, be it seen immediately or filtered though symbols shaped by long use.[128]

This attempt to justify polycentric law need not, and indeed cannot, define the ideal procedure for recording and measuring consent. It leaves that for the market in law to decide. But it does assume that consent exists; that it counts for something to say one "freely agrees" to a proposition. Remarkably, some scholars reject this assumption.

Stanley Fish, for example, equates persuasion with the use of coercive force. He maintains that "rhetoric is by definition the forceful presentation of an interested argument--rhetoric is another word for force . . ."[129] This failure to distinguish between persuasion and coercion ultimately prevents Fish from recognizing any difference between the rule of law and the rule of force:

[T]he force of law is always and already indistinguishable from the forces it would oppose. Or to put the matter another way: there is always a gun at your head. Sometimes the gun is, in literal fact, a gun; sometimes it is a reason [p. 46/p. 47] . . . Whatever it is, it will always be a form of coercion . . ."[130]

In due fairness to Fish, it bears noting that these statements may qualify as English department dicta. Despite his broad use of the universal term "law," Fish speaks solely of the statist sort.[131] Statist law does tend to dress its coercive demands in the rhetoric of persuasion.[132] But this alone cannot excuse Fish's loose talk. Even those born and raised under tyranny recognize the difference between persuasion and the jackboot.[133]

No, in the final analysis Fish refuses to distinguish between coercion and consent because he denies that free choice is even an option. "[Y]ou can never get away from your beliefs, which means that you can never get away from force," explains Fish.[134] "In the end we are always self-compelled, coerced by forces--beliefs, convictions, reasons, desires--from which we cannot move one inch away."[135] [p. 47/ p. 48]

Fish glosses over a question that has puzzled philosophers for centuries: whether or not determinism leaves room for free will. More than a few of them have argued that it does.[136] But regardless of the merits of Fish's analysis, it serves to frame the issue of what relationship consent bears to free will.

Consent serves many purposes. It most often gets credit for allowing free agents to make choices and bear responsibilities. But even Fish and other determinists of his ilk, who dismiss such notions of "choice" and "responsibility," can find something to value in consent: it advances social utility by maximizing access to unequally distributed information.

Each person and association of persons possesses information that is inaccessible to others. Barnett categorizes such radically dispersed information as either "personal" or "local."[137] The former sort inheres to individuals, the latter to a particular association of persons. Personal and local information holds a wealth of expertise about how to put scarce resources to their best uses. It will little effect, however, unless brought forth and distributed widely in easily digestible form. Their isolation from the sources of personal and local information prevent centralized authorities from performing this function. But [p. 48/p. 49] through the medium of consensual exchange, those who hold personal and local knowledge can transform it into an easily transmitted, readily understood, and universal language: prices.[138]

Although this argument has long seen use in purely economic contexts[139] it applies equally well to legal ones. Because legal services do not come for free, they are scarce resources just as apples, cars, and hatbands are. And just as with other scarce resources, central authorities lack access to the information needed to package and distribute legal services in an optimally efficient manner. That information lies hidden in personal and local forms. Basing jurisdiction on express consent, however, brings forth this otherwise inaccessible information by establishing prices for legal services. Polycentric law thus puts personal and local information about the optimal allocation of legal services to work for the good of all concerned.[140] Even Fish can appreciate that.

2. Relativity and transitivity in justification

[p. 49/p. 50]

Because a justification succeeds only through persuasion, it stands or falls only relative to a particular audience. A justification cannot float about as a disembodied universal given, for nothing in the noumenal realm has the power to accept or reject it. Nor can a justification rest on its laurels. Though it may have obvious appeal and an unblemished record of prior endorsements, every person who comes within the scope of a justification reserves the right to judge it afresh.

Who makes up a justification's audience? As with any audience, individuals persons do. Loose metaphors about "company spirit" and "national will" notwithstanding, only an individual can sense and think. Only an individual can expressly consent to a proposition. Therefore, a justification stands or falls only relative to each individual person who accepts or rejects it.

Although the individual stars in this account of justification, social organizations can play a supporting role. If an individual expressly consents to have her interests represented through a social mechanism, she expressly consents to the choices of its duly authorized agents who act within the bounds of their offices. What Nozick has said of justice thus holds true of justification as well: "Whatever arises from a just situation by just steps is itself just. The means of change specified by the principle of justice in transfer preserve justice."[141] By analogy, whatever is justified with respect to a social organization is also justified with respect to individuals [p. 50/p.51] for whom that social organization's representation is justified. Justification is transitive.

One need not become a methodological individualist to accept this account of justification. Methodological individualism casts the very existence of social organizations in doubt. Murray N. Rothbard maintains, for example, that "'Societies' or 'groups' have no independent existence aside from the actions of their individual members."[142] But one can believe that social organizations exist independent of their members and still agree that a justification succeeds only relative to the individuals who consent to it, whether they do so directly or via the representation of a social organization to which they have consented. At the extreme, one could even adopt this relational view of justification while believing that social organizations act, sense, and think with all the ontological status of individual human persons.[143]

What beliefs does this theory of justification preclude? It precludes believing that a justification succeeds relative to a [p. 51/p. 52] person who refuses to consent to its terms either directly or through a justified representational scheme. It also precludes believing that a justification succeeds relative to a person who could have, but did not consent, or relative to a person who did not, but would not have consented.[144] For example, one who accepts this theory can believe that both individual human persons and social organizations have the power to expressly consent to justifications, but he cannot also believe that a justification to which a social organization has expressly consented binds any individual who has not likewise consented to be represented by that social organization. A justification must win express consent in each case where it might be had, or at a minimum show that it could not be had but would have been forthcoming.

This means that one cannot justify a social order's claim to power over a person by mere reference to its "collective will." Such a justification fails on grounds of circularity, for it presumes that the characterization of a group's will binds its constituents prior to their having agreed to such representation. But no form of collective representation is justified with respect to an individual who refuses to consent to its terms. Even if a social organization has sufficient ontological standing to entertain cognitive states independent of its members, its express [p. 52/p. 53] consent to a justification does not bind an individual who denies that the organization's consent reflects his own.

Although this account emphasizes that a justification stands or falls only relative to those who accept or reject it, it is not thereby equivalent to moral relativism. Like most major ethical theories, relativism comes in more than one flavor.[145] Editorialists get upset over a particular sort of moral relativism, the sort that holds both that "right" means "right for a given culture," and that it is therefore wrong to condemn another culture's morals. Though editorialists attack this type of moral relativism for eroding honored values, philosophers attack it for employing "right" and "wrong" in a contradictory fashion. Bernard Williams has thus described this form of moral relativism as "possibly the most absurd view to have been advanced even in moral philosophy."[146]

Fortunately, the account of justification set forth here gives neither editorialists nor philosophers similar grounds for outrage. It does not hold that standards of justification vary from society to society. Quite the contrary; it argues for a universal standard of justification, one based in the unvarying features of consent, coercion, and information. [p. 53/p. 54]

The account of justification given here does resemble another sort of moral relativism, however; the sort Gilbert Harman defends as no more than "a soberly logical thesis about logical form."[147] Harman claims that morality arises among people who come to an agreement or understanding about their relations with one another.[148] He concludes that although cross-cultural moral judgements are not "wrong," they make sense only in relation to such agreements or understandings.[149] This paper likewise presents a "soberly logical thesis": a justification binds only those who agree to its terms. It thus makes no sense, strictly speaking, to say, "X is justified." The sentence must always be fleshed out to claim, "X is justified relative to Y."

Nonetheless, this theory of justification differs from Harman's moral relativism in an important sense. Harman has drawn criticism for stripping cross-cultural judgments of all moral weight.[150] He would have one judge Hitler, for example, only relative to the moral agreements or understandings that Hitler shares with others. But Harman's critics maintain that someone like Hitler "ought not to kill us--he would be wrong to kill us [p. 54/p. 55]--and there are reasons justifying these judgments, unappealing as they may be to one of his background."[151]

In contrast to Harman's moral relativism, the account of justificatory relativism presented in these pages gives those who suffer coercion a ready defense against their oppressors. The difference lies in the scope of the theories. Harman restricts moral judgements to intra-group relations. But justificatory relativism applies between groups, between individuals, and between groups and individuals. Anywhere that two bodies capable of consent meet, it stands ready to evaluate whether or not their relations satisfy the criteria for justification: Has each party expressly consented to the relationship, either directly or through a justified representational mechanism?

B. Polycentric Law, Statist Law, and Justification

Taken on its own terms, polycentric law makes justification easy. Who can object to the jurisdiction of a legal system to which they have expressly consented? But justifying polycentric law poses new challenges when statism enters the picture.

Statists would give one authority sufficient regulated coercive powers to maintain a monopoly on the use of any coercion within a geographic area. They do not recognize a right to freely contract for legal services. Statists thus care little about whether or not the customer of a polycentric legal system has [p. 55/p. 56] expressly consented to its jurisdiction. The question, for statists, is whether or not they consent to polycentric legal relations. A successful justification of polycentric law must therefore do more than merely demonstrate consumer satisfaction. It must fend off statist interference by showing that polycentric law is not merely justified, but that it is more justified than the statist alternative.

Polycentric law merits a presumption of justification because it relies on the express consent of those it serves. It must therefore be more justified than statist law if statist law cannot be justified at all. Political philosophers have often cast statist law in such terms.[152] Barnett, for example, has argued from Fuller's principle of reciprocity to the conclusion that statist law cannot be justified.[153]

Fuller distinguished the law from mere edict on grounds that the former, among other things, "presupposes a commitment by the governing authority to abide by its own rules in dealing with its subjects."[154] Barnett observed that through taxation and other means of forcibly imposing its jurisdiction on non-consenting individuals, the State "aggresses against the rights of its [p. 56/ p. 57] citizens, something which its rules say citizens may not do."[155] Because it refuses to live by its own laws, Barnett concluded that "[t]he State qua State therefore is an illegal system."[156]

The view of justification presented in these pages offers another route to concluding that statism cannot be justified. Granted that express consent sets the ideal standard for measuring the success of a justification, why accept anything less than the ideal? Statists, by the definition of their creed, claim to have legal jurisdiction over persons who fail to consent to it expressly. More to the point, they even claim jurisdiction over those who expressly object to it. Under an idealist approach, then, statists could never justify wielding power against such persons.[157] [p. 57/p. 58]

Despite their appealing clarity, however, these attempts to cast justification in black-and-white terms run the risk of obscuring important distinctions. Perhaps that is why Barnett has of late moved toward a meta-ethical stance that would support viewing the inconsistent application of a State's laws as only one of many factors that would go into determining whether or not it is justified.[158] Barnett has expressed a similar view with regard to the relationship between express consent and justification.[159] For reasons set forth above, however, express consent merits special treatment. Consistency counts as merely one of many factors that goes into building the case a legal system's justification. A person's express consent to that legal system, on the other hand, indicates whether the case for its justification wins the day.

Nonetheless, setting up express consent as a necessary and sufficient condition for justification naively overlooks the complexity of the real world. Express consent proves hard to define in borderline cases. Can a child give express consent? How about someone desperately seeking protection from a hitman following just steps behind? Can a person who suffers multiple personality disorder bind all her selves? Other cases rule out express consent altogether. A dispute over an ambiguous contract may require a judgement based on the parties' implied consent to [p. 58/p. 59] default rules.[160] Protecting a comatose patient's legal rights may call for jurisdiction based on hypothetical consent.

In these and other cases using express consent as an either/or test of justification would leave one unable to choose between a wide spectrum of less-than-perfect circumstances. But no adequate theory of justification can turn a blind eye to the messiness of the real world. Express consent still has a role to play, but not as a threshold test. Rather, it should serve as an ideal standard for ranking surrogates such as implied and hypothetical consent. The nearer these substitutes come to obtaining a person's express consent, the better they justify the legal obligations they serve to defend.

This reveals a second sense in which justification is relative. The previous section described the first sense: a justification stands or falls only relative to the person who accepts or rejects it. The present section shows that justifications also stand or fall relative to each other. Consent acts like a bridge between these two senses of "relative." A justification applies only relative to a person who consents to it, and that justification is relatively better than alternative justifications to which a person denies consent.

Despite this more generous view of justification, statist law still fares poorly. The coercive nature of statist law condemns it, for the purposes of the present inquiry, to remain less justified than [p. 59/ p. 60] polycentric law. Recall that this section sought to determine whether polycentric law is more justified than statist law. Relative to persons who prefer polycentric law, it must be. They can thus rightfully denounce statist interference as unjustified. Polycentric law will not be more justified than statist law relative to persons who prefer the latter, but this still does not justify a universal monopoly in law. Because statist law is only justified relative to its fans, they can only justify inflicting institutionalized coercion on themselves.

A statist may object that if her preference for statist law justifies it relative to her, then she can justifiably fulfill its call for imposing a monopoly in legal services even on objecting polycentrists. But if she begins with the premise that a justification applies only relative to a person who accepts it, she cannot conclude that she is justified in imposing statism a person who prefers polycentric law. At best, she can only show that those on whom she would impose statism have not yet and cannot not now expressly object, and that they have impliedly, or would hypothetically, consent to statism.

It bears noting that the statist can scarcely satisfy this burden of proof by setting up a monopoly in law and then claiming that seeking out the express consent of those subjected to it would cause her too much trouble. Nor can the statist get by with the even more incredible claim that she need not seek out the express consent of all who fall within her monopoly on law because doing so would certainly prove fatal to her project. Any statist trying this ploy would face the same question that Spooner asked with regard to the U.S. Constitution: [p. 60/p. 61]

If any considerable number of the people believe the Constitution to be good, why do they not sign it themselves, and make laws for, and administer them upon, each other; leaving all other persons (who do not interfere with them) in peace?[161]

Frustrated by these hurdles to justifying the imposition of a monopoly in law, a statist might well conclude that the theory of justification set forth in these pages unfairly stacks the deck against her. Regardless of its fairness, it does set high standards. But statists can scarcely disregard these standards for justification as inconvenient barriers on the road to power. They must at least show that the theory of justification given here suffers from fatal flaws. Better yet, statists should offer a alternative theory that takes account of the role justifications play in obtaining the consent of those to whom they are addressed.

Perhaps statists who feel put out by this paper's approach to justification can take solace in the thought that it poses problems for polycentrists, too. Even those who live in a polycentric legal system would sometimes come into conflict with outsiders who expressly refuse to consent to the same set of laws. When these outsiders subscribe to an entirely different legal system, such contact raises a conflict of laws problem. When they refuse to abide by any legal agreement, they qualify as outlaws. Both cases present the same question: how can members of a [p. 61/p. 62] polycentric legal system justify imposing their laws on those who expressly refuse to accept them?

A polycentric legal system will frequently find that it can come to a peaceful agreement with those who initially object to its laws, thereby obtaining express consent sufficient to justify the dispute's resolution.[162] But sometimes the conflict will persist, and those who normally live under conditions of mutual express consent will find themselves wanting to force their laws on strangers. Some advocates of polycentric law have tried to patch this breach of express consent through implied or hypothetical consent. Such rationalizations create loopholes through which statism will find ready access to justification. The account of justification given here cannot support exposing its standards to this risk.

Instead, consistency demands polycentric law face up to its limits. No legal system is justified relative to someone who expressly denies its jurisdiction--not even if he does so for apparently evil reasons and the legal system is widely recognized as equitable and efficient. A person who causes harm and refuses to negotiate a legal peace effectively declares himself to be at war with his victims. The legal system loses all relevance. Diplomacy, military policy, and the dictates of conscience guide the proper response to such a threat.

CONCLUSION

[p. 62/p. 63]

This paper has cast light on a neglected part of an ignored topic: the jurisprudence of polycentric law. Part I set forth necessary terminology, defining "polycentric law" and its proper subsets, "customary law" and "privately produced law." Part II then began developing a theory of the jurisprudence of polycentric law by viewing it at the object-level. It described the internal workings of polycentric legal systems through historical and theoretical examples, establishing that practical jurisprudence can thrive in the absence of statism. Part III concluded matters by discussing jurisprudence at the meta-level, finding that polycentric law is more justified than the statist alternative.

Despite this progress, the jurisprudence of polycentric law cries out for further exploration. The arguments presented in these pages expose the foundations of contemporary jurisprudence to critical scrutiny. They raise fundamental questions and reach far-flung issues. This suggests that polycentric law ultimately requires an entirely new approach to jurisprudence, one wide enough to hold a variety of competing legal systems and deep enough to provide the foundations for a new jurisprudential science. But that project must wait for another day. [p. 63/end]

Footnotes

[1] See for example Thomas Hobbes, Leviathan 148 (Bobbs-Merrill, ed 1958) ("Eightly is annexed to the sovereignty, the right of judicature . . . For without the decision of controversies, there is no protection of one subject against the injuries of another . . ."); John Locke, The Second Treatise of Government 9 (Bobbs-Merrill, ed 1952) ("I easily grant that civil government is the proper remedy for the inconveniences of the state of nature, which must certainly be great where men may be judges in their own case . . ."); Robert Nozick, Anarchy, State, and Utopia 101-19 (Basic Books, 1974) (The dominant protection agency becomes an ultraminimal state by winning a defacto monopoly on prohibiting "risky" dispute resolution procedures).

[2] Roscoe Pound, 1 Jurisprudence 7 (West, 1959). See also Black's Law Dictionary 854-55 (West, 6th ed 1990). [p. 1/p. 2]

[3] With regard to the former, see for example John Austin, The Province of Jurisprudence Determined 202 (Noonday, H.L.A. Hart ed 1954) ("For every positive law, or every law simply and strictly so called, is set directly or circuitously by a monarch or sovereign number to a person or persons in a state of subjection to its author.") With regard to the latter, see for example Margaret MacDonald, The Language of Political Theory, 41 Proc Aristotelian Soc'y 91, 110 (1940-41) ("To ask whether I should obey any laws is to ask whether there might be a political society without political obligations, which is absurd.") (emphasis in the original). [p. 2/p. 3]

[4] Pound calls this the job of "philosophical jurisprudence," which is "one form or side of the science of law, organized by philosophical method and directed chiefly to the ideal element of law and to a philosophical critique of legal institutions, legal doctrines, and legal precepts." Pound, 1 Jurisprudence 11 (West, 1959). He mentions it only once more in his eight volume work, in regard to theories of contracts. 3 id at 219-21. [p. 3/p. 4]

[5] See above at 1, note 1.

[6] See above at 2, note 3. [p. 4/p. 5]

[7] "[I]f it is assumed that law can only be made my nation-states, then of course it 'follows' that law cannot be made by communities that transcend nation-states. This assumption, however, is contrary to historical fact. The law of the international mercantile community antedates the emergence of a system of nation-states by some centuries . . . " Harold J. Berman & Felix J. Dasser, The 'New' Law Merchant and the 'Old': Sources, Content, and Legitimacy, in Thomas E. Carbonneau, ed, Lex Mercatoria and Arbitration 22 (Transnational Juris Publ, 1990). For more on the Law Merchant and other historical examples of polycentric legal systems, see below at 15-26.

[8] See below at 6, note 11.

[9] Lon L. Fuller, The Morality of Law 106 (Yale University Press, rev ed 1964). In defending his definition of "law" Fuller notes that "A possible objection . . . is that it permits the existence of more than one legal system governing the same population. The answer, of course, is that such multiple systems do exist and have in the history been more common than unitary systems." Id at 123. See also Pound, 2 Jurisprudence at 299 (cited in note 2): "In the sense in which many sociologists now use 'law' there may be a legal order and so law without any political organization."

[10] Michael Polyani gets credit for introducing "polycentric" to the social sciences. See Michael Polyani, The Logic of Liberty 170 (University of Chicago Press, 1951). [p. 5/p. 6]

[11] This closely follows Weber's classic definition: "A compulsory political organization with a continuous organization (politischer Anstaltsbetrieb) will be called a 'state' if and insofar as its administrative staff successfully upholds a claim to the monopoly of the legitimate use of physical force in the enforcement of its order." Max Weber, The Theory of Social and Economic Organization 154 (1964) (emphasis in the original) quoted in Randy E. Barnett, Pursuing Justice in a Free Society, Part One: Power vs. Liberty, Criminal Justice Ethics 50, 67 n 1 (Summer/Fall 1985). Note, however, that the definition tendered here emphasizes that statists enforce their claims coercively.

[12] Bruno Leoni presents a similar view: "Individuals make the law insofar as they make successful claims." Bruno Leoni, The Law as the Claim of the Individual, 40 Archives for Philosophy of Law and Social Philosophy 45, 58 (1964). [p. 6/p. 7]

[13] For standard accounts of free banking see for Lawrence H. White, Free Banking in Britain: Theory, Experience, and Debate, 1800-1845 (Cambridge University Press, 1984); _____, Competition and Currency (New York University Press, 1989); George A. Selgin, The Theory of Free Banking: Money Supply Under Competitive Note Issue (Rowman and Littlefield, 1988). For an account exploring the parallels between polycentric law and free banking see Tom W. Bell Polycentric Law, 7 Humane Studies Rev. 1-2, 4-10 (Winter 1991/92).

[14] Worse yet, it has too few syllables for academics to take it seriously.

[15] Randy Barnett, Foreword: Four Senses of the Public Law-Private Law Distinction 9 Harv Journal of Law and Public Policy 267, 271 (Spring 1986); _____, Pursuing Justice in a Free Society, Part Two: Crime Prevention and the Legal Order, Criminal Justice Ethics 30, 37 (Winter/Spring 1986).

[16] See for example an account on relationships between the legal systems of early medieval Europe in Harold J. Berman, Law and Revolution (Harvard University Press, 1983).

[17] One might avoid too narrow a definition of the relevant legal market, however, by adopting something like the techniques set forth in the United States Department of Justice 1984 Merger Guidelines, 46 Antitrust and Trade Reg Rep (BNA) No 1169 Spec Supp § 2. [p. 7/p. 8]

[18] Note, however, that this uniformity would not render the free legal system equivalent to a statist one. The latter, unlike the former, would not maintain its monopoly on the coercive use of force by itself using coercive methods. See above at 6.

[19] See for example Bell, 7 Humane Studies Rev (Winter 1991/92) (cited in note 13) (using "polycentric law," "privately produced law," and "purely private law" interchangeably); Bruce L. Benson, The Enterprise of Law (Pacific Research Institute for Public Policy, 1990) (referring to "private" and "fully privatized" legal systems).

[20] See below at 10-11.

[21] Fuller likewise emphasizes procedure: "[L]aw is the enterprise of subjecting human conduct to the governance of rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort." Fuller, The Morality of Law at 106 (cited in note 9). [p. 8/p. 9]

[22] See Randy E. Barnett, Toward a Theory of Legal Naturalism, 2 J Libertarian Studies 97 (1978). But see George H. Smith, Justice Entrepreneurship in a Free Market 3 J Libertarian Studies 405, 407 (1979) (deriving procedural law from natural law and thus classifying it as a branch thereof).

[23] For stylistic reasons I prefer "purely private legal system" to "privately produced legal system." The latter, I think, implies the absence of spontaneous ordering.

[24] See Antony Allott & Gordon R. Woodman, Introduction, in Antony Allott & Gordon R. Woodman, eds, People's Law and State Law 2 (Foris Publications, 1985). The authors would probably reject the definition of customary law tendered here, though, since they hold that there is "no agreed definition" of folk law." Id at 2. [p. 9/p. 10]

[25] Often they will even have purchased it much as one does any professional service. [p. 10/p. 11]

[26] Lynne Henderson, Authoritarianism and the Rule of Law, 66 Ind L J 379, 389 (1991): "[T]he absence of authority is frequently asserted as the equivalent of social chaos--anarchy, in a negative sense, on a scale of the Reign of Terror . . ." (emphasis excerpted) By "authority" Henderson means coercive structures, practices, and epistemologies--not "expertise." Id at 381-83. [p. 11/p. 12]

[27] See id at 389-90.

[28] Bruce A. Ackerman, Social Justice in the Liberal State 252 n. 8 (Yale University Press, 1980). I note that Ackerman actually refers to "a place without government," id, because some political philosophers emphatically distinguish governments from States. See for example Albert J. Nock, Our Enemy, the State (Hallberg, 1983). But Ackerman apparently equates the two terms, for he discusses a "statesman" representing the "government." Ackerman, Social Justice in the Liberal State at 252.

Ackerman joins a long line of political philosophers who have embraced the false dichotomy between statism and chaos, Hobbes being the most influential: "Hereby it is manifest that, during the time men live without a common power to keep them all in awe, they are in that condition which is called war, and such a war as is of every man against every man." Hobbes, Leviathan at 106 (cited in note 1).

[29] See for example Employment Division, Department of Human Resources v Smith, 110 S Ct 1595, 1603 (1990) (denying First Amendment protection of [p. 12/p. 13]the sacramental use of peyote for fear of "courting anarchy"); Reynolds v United States 98 US 145 (1879) (refusing to protect the right to engage in polygamy on similar grounds).

[30] Here, as elsewhere, Friedrich A. Hayek's observation holds true: "Historical myths have perhaps played nearly as great a role in shaping opinion as historical facts. Yet we can scarcely hope to profit from past experience unless the facts from which we draw our conclusions are correct." Friedrich A. Hayek, "History and Politics," in Capitalism and the Historians 4 (University of Chicago Press, F.A. Hayek ed 1954). [p. 13/p. 14]

[31] Benson, The Enterprise of Law at 12 (cited in note 19).

[32] Id.

[33] Fuller, The Morality of Law at 23 (cited in note 9) (emphasis in the original).

[34] Id at 24. [p. 14/p. 15]

[35] See Robert C. Ellickson, Order Without Law 174-75 (Harvard University Press, 1991); Benson, The Enterprise of Law at 13, 284 (cited in note 19).

[36] Benson, The Enterprise of Law at 13 (cited in note 19). [p. 15/p. 16]

[37] See generally Friedrich A. Hayek, 1 Law, Legislation, and Liberty (University of Chicago Press, 1973).

[38] Leonard PopÍsil, Anthropology of Law: A Comparative Theory (Harper & Row, 1974).

[39] Id at 65-72.

[40] Id at 69.

[41] Id at 107. [p. 16/p. 17]

[42] Id at 111. Above the level at which tonowi status comes from persuading individuals to exchange obligations for loans, one wins tonowi status in a larger inclusive group (such as a confederation of sublineages) by merit of being the tonowi of its largest constituent subgroup. Id at 108.

[43] Id at 35-36.

[44] Id at 36, 80.

[45] Id at 93.

[46] Id at 92-93.

[47] Id at 65. [p. 17/p. 18]

[48] Id.

[49] Id.

[50] Id at 66.

[51] Id at 205. [p. 18/p. 19]

[52] Id at 110, 216-20.

[53] Walter Goldschmidt, Ethics and the Structure of Society: An Ethnological Contribution to the Sociology of Knowledge, 53 Am Anthropologist 506 (1951).

[54] E. Adamson Hoebel, Law Ways of the Comanche Indians, in Law and Warfare (National History Press, Paul Buchanan ed 1954). [[I have in recent years heard from reputable sources that Hoebel's account of Comanche law suffers from inaccuracies because he too often took seriously the jesting comments of the Comanches he interviewed. Amy H. Sturgis, a scholar of Chereokee law, recommended to me as more reliable and substantively similar two sources that I have yet to read: Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (Norman, University of Oklahoma Press, 1975); and John Phillip Reid, A Law of Blood: The Primitive Law of the Cherokee Nation (New York: New York Univ. Press, 1971).]]

[55] E. Adamson Hoebel, The Law of Primitive Man (Harvard University Press, 1954); R.F. Barton, Procedure Among the Ifugao, in Law and Warfare (cited in note 54).

[56] David D. Friedman, The Machinery of Freedom 201-08 (Open Court, 2nd ed 1989); _____, Private Creation and Enforcement of Law: A Historical Case, 8 J Legal Studies 400 (1979); William I. Miller, Bloodtaking and Peacemaking (University of Chicago Press, 1990).

[57] See for example Berman, Law and Revolution at 49-68 (cited in note 16); Benson, The Enterprise of Law at 21-30 (cited in note 19).

[58] Joseph R. Peden, Property Rights in Celtic Irish Law, 1 J Libertarian Studies 81 (1977); D. A. Binchy, ed, Studies in Early Irish Law (Irish University Press, 1936).

[59] Berman, Law and Revolution (cited in note 16). [p. 19/p. 20]

[60] Jerold S. Auerbach, Justice Without Law? (Oxford University Press, 1983).

[61] Terry Anderson & P. J. Hill, An American Experiment in Anarcho-Capitalism: The Not So Wild, Wild West, 3 J Libertarian Studies 9 (1979); John Umbeck, A Theory of Property Rights With Application to the California Gold Rush (Iowa State University Press, 1981).

[62] For an analysis of the constitutional features of private communities, see Donald J. Boudreaux and Randall G. Holcombe, Government by Contract, 17 Public Finance Quarterly 264 (July 1989). For a more general discussion of private communities, see Spencer Heath MacCallum, The Art of Community (Institute for Humane Studies, 1970).

[63] Fuller, The Morality of Law at 124-25 (cited in note 9). Because statist legal systems guard their coercive powers jealously, however, [p. 20/p. 21] these purely private legal systems tend to have narrower jurisdictions than the customary legal systems we discussed above at 16-21.

[64] Avner Greif, Reputation and Coalitions in Medieval Trade: Evidence from the Geniza Documents, 49 J Econ Hist 857 (1989).

[65] Id at 863. [p. 21/p. 22]

[66] Id. An optimal wage was the lowest cost premium for which the long-run gains of maintaining a good reputation equaled or outweighed the short-run gains of cheating. Id at 867.

[67] Id at 868.

[68] Id.

[69] Id at 858-59.

[70] See generally Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law (Fred B. Rothman & Co, 1983); Berman, Law and Revolution at 333-56 (cited in note 16). [p. 22/p. 23]

[71] Reputation still played an integral role in the Law Merchant, however. Its system of private judges served "to promote private resolution of disputes and otherwise to transmit just enough information to the right people in the right circumstances to enable the reputation mechanism to function effectively for enforcement." Paul R. Milgrom, Douglass C. North, & Barry R. Weingast, The Role of Institutions in the Revival of Trade: the Law Merchant, Private Judges, and the Champagne Fairs, 2 Economics & Politics 1, 3 (1990) (emphasis in the original).

[72] "Reciprocity and the threat of business sanctions compelled performance. The ordinary undertakings of merchants were binding because they were 'intended' to be binding, not because any law compelled such performance." Trakman, The Law Merchant at 10 (cited in note 70).

[73] See Berman & Dasser, The 'New' Law Merchant and the 'Old': Sources, Content, and Legitimacy at 21 (cited in note 7): "The law merchant has been for centuries and continues to be today an international body of law, founded on the shared legal understandings of an international community composed principally of commercial, shipping, insurance, and banking enterprises of all countries." See also Benson, The Enterprise of Law at 224-27 (cited in note 19). [p. 23/p. 24]

[74] Andrew Patner, Arbitration Settles a Lot, Unsettles a Few, Wall Street Journal B1 (April 3, 1990).

[75] Id.

[76] Jane Birnbaum & Morton D. Sosland, Coming to Terms--Without Bringing in the Lawyers, Business Week 63 (April 13, 1992).

[77] Benson, The Enterprise of Law at 223 (cited in note 19).

[78] Birnbaum & Sosland, Business Week at 63 (cited in note 76).

[79] Id. [p. 24/p. 25]

[80] The account that follows also borrows generously from others who have attempted to describe a modern polycentric legal order: Barnett, Criminal Justice Ethics 30 (Winter/Spring 1986) (cited in note 15); _____, 2 J Libertarian Studies 97 (1978) (cited in note 22); Bell, 7 Humane Studies Rev (Winter 1991/92) (cited in note 13); Benson, The Enterprise of Law 349-74 (cited in note 19); Friedman, The Machinery of Freedom (cited in note 56); Morris Tannehill & Linda Tannehill, The Market for Liberty (Libertarian Review Foundation, 1984 reprint of 1970 ed); Murray N. Rothbard, For A New Liberty 215-37 (Collier Books, rev ed 1978). Entertaining fictional accounts of life under polycentric law also appear in Neal Stephenson, Snow Crash (Bantam Books, 1992); J. Neil Schulman, Alongside Night (Avon Books, 1983); _____, Alongside Night (Ace Books, 1979); Robert A. Heinlein, The Moon is a Harsh Mistress (Ace Books, ed 1987; orig publ 1966). [p. 25/p. 26]

[81] See above at 10-11, 21-22, 25-26.

[82] Even with regard to the sixth feature, though, purely private legal systems should sometimes mimic their customary counterparts.

[83] Or one might say that these contracts merit the status of constitutional law. See Fuller, The Morality of Law at 128-29 (cited in note 9).

Questions arise here as to what standards control the law of contracts-cum-constitutions in a polycentric legal order. See below at 44-46. [p. 26/p. 27]

[84] See for example William L. Landes & Richard A. Posner, Adjudication as a Public Good, 8 J Legal Studies 235, 239 (1979).

[85] For a discussion of how a polycentric legal order would deal with cases where none of these solutions prevent a conflict of laws, see below at 31-33.

[86] See above at 25-26. [p. 27/p. 28]

[87] Note that payment to the victim might justifiably include a premium to cover the subjective disutility of suffering an intentional violation of rights.

[88] Some advocates of restitution draw the line here. See for example Randy E. Barnett, Restitution: A New Paradigm of Criminal Justice 87 Ethics 279 (1977). Others would divide the costs of apprehension by the probability of bringing the offender to justice. See for example David Friedman, Toward a Private Legal System, 38/39 Nomos 9 (1991).

[89] Benson notes of capital punishment that "It is difficult to predict whether such punishment would arise in the private law system of a modern society. Possibly, the rest of an offender's life would be committed to working to pay the victim or the victim's family, even though full restitution could never be achieved." Benson, The Enterprise of Law at 356 (cited in note 19). [p. 28/p. 29]

[90] William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J Legal Studies 1, 29 (1975): "The free-rider problem does not arise under systems of private enforcement in which enforcers purchase rights from victims . . . or acquire rights by apprehending and convicting the offender. The reason is that in these systems the return to enforcement is a fine, whereas under a system in which enforcers are precluded from receiving fines the return to enforcement must come from those buying protection." [p. 29/p. 30]

[91] See for example Selgin, The Theory of Free Banking at 26-29 (cited in note 13).

[92] See for example Roger C. Cramton, David P. Currie, & Herma Hill Kay, Conflict of Laws at xvii (West, 4th ed 1987): "[T]here exists a deep split of judicial opinion concerning the most fundamental issues underlying choice of law . . ."

[93] See for example Brainerd Currie, Notes on Methods and Objectives in the Conflict of Laws, 1959 Duke L J 171. [p. 30/p. 31]

[94] See for example Willis L. M. Reese, Choice of Law: Rules or Approach, 57 Cornell L Rev 315 (1972); Max Rheinstein, How to Review a Festschrift, 11 Am J Comp L 632 (1962). Even Brainerd Currie, the leading exponent of interest analysis, confessed that "assessment of the respective values of the competing legitimate interests of two sovereign states, is order to determine which is to prevail . . . is a function that the courts cannot perform effectively, for they lack the necessary resources." Currie, 1959 Duke L J at 176-77 (cited in note 93).

[95] David D. Friedman, The Machinery of Freedom at 127-28 (cited in note 56). [p. 31/p. 32]

[96] But see Nozick, Anarchy, State, and Utopia at 108-13 (cited in note 1) (arguing that the mere risk posed by such renegades justifies denying them the right to self-help enforcement). For several articles criticizing Nozick's argument see generally 1 J Libertarian Studies (1977). See also Smith, 3 J Libertarian Studies 405 (1979) (cited in note 22).

[97] Customary and purely private legal systems have traditionally ostracized only those who violate the law in flagrant and egregious manners. See above at 18-19, 23-24. A modern polycentric legal system would likewise probably reserve ostracism for extreme cases. After all, who would agree to risk losing all legal standing for neglecting to pay a parking ticket?

[98] Although a polycentric legal system ultimately falls back on the use of force, this is also true of statist law. "All systems break down when people refuse to participate in them. The question is: Which [p. 32/p. 33] system is most likely to have to resort to that ultimate form of ostracism? The historical evidence is that privatized law and order has been relatively free of violence." Benson, The Enterprise of Law at 364 (cited in note 19) (footnotes excerpted, emphasis in the original). [p. 33/p. 34]

[99] "Social dynamism is not an undesirable feature. To the contrary, it is wholly desirable, but not best implemented by judicial decision. The desired initiatives come best from private sources, who should be spared the burden of planning their affairs in an environment filled with unwanted legal uncertainties." Richard A. Epstein, The Static Conception of the Common Law, 9 J Legal Studies 253, 254 (1980).

[100] Landes & Posner, 8 J Legal Studies 235 (cited in note 84); Rodney H. Mabry et al, An Economic Investigation of State and Local Judiciary Services 78-84 (National Institute of Law Enforcement and Criminal Justice, 1977). [p. 34/p. 35]

[101] See for example Ronald H. Coase, The Lighthouse in Economics, 17 J Law & Econ 357 (1974) (demonstrating how lighthouses, a public good, were funded through private means).

[102] For a purely theoretical explanation see Anthony de Jasay, Social Contract, Free Ride 134-140 (Clarendon Press, 1989) (treating the provision of public goods as a prisoner's dilemma, and demonstrating that voluntary contributions are not irrational under the "straddle" ranking of payoffs).

[103] See above at 18.

[104] Landes & Posner, 8 J Legal Studies 257-58 (cited in note 84). Royal courts also borrowed precedents from customary property, tort, and criminal law. Berman, Law and Revolution at 456 (cited in note 16). [p. 35/p. 36]

[105] Benson, The Enterprise of Law at 226-30 (cited in note 19).

[106] Landes & Posner, 8 J Legal Studies at 249 (cited in note 84).

[107] "Businessmen, forced to pay attention to the prospect of judicial review, had to make their arbitration processes compatible with statute and precedent law, including public court procedure." Benson, The Enterprise of Law at 222 (cited in note 19).

[108] Landes & Posner, 8 J Legal Studies at 238 (cited in note 84).

[109] Id at 239.

[110] Id at 239-40. [p. 36/p. 37]

[111] See above at 12-34.

[112] See above at 27-28.

[113] Benson draws an analogy with HMOs and PPOs: "Physicians have incentives to keep their patients healthy with preventive medicine that avoids more costly treatments after an illness arises. Similar arrangements are certainly possible in the provision of judicial services." Benson, The Enterprise of Law at 280 (cited in note 19). [p. 37/p. 38]

[114] Landes & Posner, 8 J Legal Studies at 237 (cited in note 84).

[115] I would only point out that even in this system judges might continue to produce precedents if the market in dispute resolution regards a judge and his precedents as a bundled good. Why would it? Because a precedent cannot interpret itself. Even applying a relatively clear precedent can tax the skills of a judge who has borrowed it to fit new facts. The limits of language give the precedent's author an inside advantage at such times, for he alone knows what unspoken considerations should shape the precedent's application to later cases.

[116] Id at 248-49. [p. 38/p. 39]

[117] Id at 246. But note that the largest statist legal systems either exercise only very limited control over the territory they claim (the U.S.) or else they tend lose such control altogether (the U.S.S.R.). And the smallest statist legal systems (Vatican City, Lichtenstein, Andorra, etc.) claim no more territory than even current private legal systems could manage.

[118] Benson responds that "The claim that a modern free-market judicial system would not produce contractual arrangements to cope with the complexities of modern society has no basis in historical fact. We may not be able to visualize the arrangements that would arise, but there is little doubt that what we see today in a system dominated by public courts and criminal law does not correspond with what would arise in the process of privatizing law and order." Benson, The Enterprise of Law at 279 (cited in note 19) (emphasis in the original).

[119] This will surprise no one familiar with the legal scholarship produced in early medieval Europe's polycentric legal order. See generally Berman, Law and Revolution (cited in note 16). [p. 39/p. 41]

[120] "Critical" in two senses of the word: both more apt to criticize (having more to lose) and more important (being well-positioned to interfere). [p. 41/p. 42]

[121] The modern tradition of social contract theory traces back to Thomas Hobbes, Leviathan (cited in note 1); John Locke, The Second Treatise of Government 9 (cited in note 1); Jean-Jacques Rousseau, "The Social Contract," in Social Contract 167(C. Sherover trans. 1984) (1762). For an early and biting criticism of the view that the U.S. Constitution embodies such a contract see Lysander Spooner, No Treason No. IV: The Constitution of No Authority, in The Lysander Spooner Reader 71 (Fox & Wilkes, 1992) (1870).

[122] Credit Rawls and Nozick for revivifying the debate over justifying statism. John Rawls, A Theory of Justice (Belknap, 1971); Nozick, Anarchy, State, and Utopia (cited in note 1). For other recent works in the genre, see Richard Taylor, Freedom, Anarchy, and the Law (Prometheus Books, 2nd ed 1980); Anthony de Jasay, Social Contract, Free Ride (cited in note 102); David Schmidtz, The Limits of Government (Westview, 1991); Note, Fighting Philosophical Anarchism 91 Col L Rev 919 (1991). [p. 42/p. 43]

[123] To "justify" is "to show to be just, right, or in accord with reason; vindicate . . ." Webster's New World Dictionary of American English 734 (Simon & Schuster, 3rd College ed 1988). [p. 43/p. 44]

[124] For a discussion about whether to regard hypothetical and implied consent as wholly or relatively lacking in the power to support justifications, see below at 59-61.

[125] See for example UCC §§ 2-201 - 210. [p. 44/p. 45]

[126] As evidence that "consent" plays a fundamental and universal role in human relations, consider that anthropologists report that predatory crimes such as murder, theft, and robbery are condemned "in all societies and in all historical periods, by ancient tradition, moral sentiments, and formal law." James Q. Wilson & Richard J. Herrnstein, Crime and Human Nature 22 (Simon & Schuster, 1985). "Moreover, people in different societies rate the seriousness of offenses, especially the universal crimes, in about the same way." Id.

[127] The mere absence of objection does not suffice to justify the imposition of a legal system, however. As noted above, a justification [p. 45/p. 46] must try to obtain express consent where it can be had, and hew to the standards of hypothetical or implied consent where it cannot. See above 44; below at 59-61.

[128] See Randy E. Barnett, Default Rules and Contractual Consent, 78 Va L Rev 821, 876 (1992).

[129] Stanley Fish, Doing What Comes Naturally 517 (Duke, 1989). [p. 46/p. 47]

[130] Id at 520 (emphasis in the original).

[131] Fish's musings on the equivalence between persuasion and coercion flow out of his critique of Hart's attempt to justify statist law.

[132] The IRS, for example, claims to administer a system of "voluntary taxation."

[133] Perhaps they recognize the difference even more clearly than those who, like Fish, live under a legal regime where consent counts for at least something. Despite his readiness to analyze the experience, Fish has probably never felt a gun pressed against his head.

[134] Id at 519.

[135] Id at 520. [p. 47/p. 48]

[136] See for example the discussion of "soft determinism" in Note, Freedom, Determinism, and the Externalization of Responsibility