The Federalist | Sep 24, 2020 | 0
Reflections on Legal Polycentrism
In attempting to promote the libertarian viewpoint, particularly in its anarchic variety, one is faced with a variety of problems. Some problems are theoretical and are well treated in the comprehensive literature;1 other problems, however, are practical or rhetorical and, while the theoretical problems (and their solution) are intrinsically the more important, it is vital that the practical/rhetorical problems be overcome if the theoretical points are to get a fair hearing.2 As human beings, we perceive and understand in accordance with our needs, our desires and our interests.3 No matter how marvellous a theory may be, it is useless if its intended audience is unreceptive. The point of rhetoric, then, is to open the eyes of the blind and the ears of the deaf so that they may see and hear.
THE GRIP OF MYTH
Someday I’d like to write a book entitled Things We All Know That Just Ain’t So! Included in this book will be the following: There was a time when everybody believed the world was flat—maybe, but not any half-educated person in the last two thousand years. The Barbarians brought about the collapse of the Roman Empire and the onset of the Dark Ages. No, they didn’t, at least not without significant help from the Romans. Galileo was an apostle of reason, brutally treated by a tyrannical and obscurantist Church. He wasn’t and it didn’t. These “facts,” however misguided, are refutable in principle. However, some of our epistemic structures go deeper and are more difficult to dislodge.
Our patterns of belief are constituted by myth. As I use the term “myth,” it is not a euphemistic way of saying that something is untrue but simply a way of naming the foundational narratives, the ultimate framing devices, in the context of which our humdrum beliefs and practices find their place. Such myths, whatever their ultimate truth, cannot be called into question from within—from that point of view, their falsity is literally unthinkable. The English philosopher R. G. Collingwood referred to such a set of such myths as “absolute presuppositions” (Collingwood 1940); similarly, Wittgenstein recognized a functional class of propositions as “standing fast” in relation to any given mode of thought (Wittgenstein 1969, passim). Because we see through (by means of) myths, we find it difficult to see through them, i.e., to recognize their nonnecessity, their lack of foundation, their contingency.
Political theory—and, I suggest, most political practice—is dominated by a myth to the effect that the state is necessary, for many things, perhaps, but primarily for the provision of peace and security; without the state (the state being that group of people which wields a territorial monopoly of alleged legitimate force financed by a compulsory levy of the inhabitants of that territory) there would be anarchy—anarchy being understood to be widespread disorder, violence, and chaos. In the words of Bruce Ackerman, without the state and its laws, we would live in a world “where everyone is free to grab anything he can without ever being obliged to justify his conduct before any institution charged with settling disputes” (Ackerman 1980, p. 252, n. 8).
Such is the power of being first in the field (“positioning” in advertising terms) that the state can literally get away with murder if it can foster the notion that it is legitimate. As Murray Rothbard puts it,
One of the crucial factors that permits governments to do the monstrous things they habitually do is the sense of legitimacy on the part of the stupefied public. The average citizen…has been imbued with the idea—carefully indoctrinated by centuries of governmental propaganda—that the government is his legitimate sovereign, and that it would be wicked or mad to refuse to obey its dictates. It is this sense of legitimacy that the State’s intellectuals have fostered over the ages, aided and abetted by all the trappings of legitimacy: flags, rituals, ceremonies, awards, constitutions, etc. (Rothbard 1973, p. 35)
The important rhetorical point of the historical examples of functioning anarchic societies and the contemporary evidence of functionally anarchic elements in Statist societies is, among other things, to emphasize the sheer contingency of what seems like a necessity—to show that it wasn’t always like this, that it isn’t like this everywhere or in every respect even now, and that it doesn’t have to be like this. For example, Bruce Benson, in the second chapter of The Enterprise of Law4 (1990), shows clearly that the system of criminal law which we now possess—state legislatures,5 public prosecution, prisons, juries, crimes against the State, public police forces—all of which seem as if they sprang, like Venus, fully armed from the head of Jove, are merely historically contingent developments. Moreover, the pressure for these developments came not from any perceived increase in efficiency but from motives that were far less noble. And Harold Berman demonstrated in his remarkable book Law and Revolution that polycentrism was the norm in medieval Europe.
EARLY IRISH SOCIETY REVISITED
In Austrian treatments of anarchism it is not unusual to point to Medieval Iceland (Friedman 1979) and Medieval Ireland, inter alia, as examples of societies that functioned successfully for substantial periods of time without coercive central government.
Joseph Peden published his groundbreaking article on early Irish Law in 1977. Much of what he had to stay still stands. Since his article was published, a diplomatic edition of the surviving legal material has been published (Binchy 1978) and an introductory but comprehensive guide was published by Fergus Kelly in 1988. This was followed by Stacey’s The Road to Judgment (1994) and McLeod’s Early Irish Contract Law (1992) so that we now have a much fuller and more detailed picture of how things were some 1500 years ago. None of this material contradicts any of Peden’s substantive points (Peden 1977).6
The Irish law texts originated in the seventh–eighth centuries, surviving in fourteenth–sixteenth century manuscripts.7 While not completely coherent, the texts manifest a basic unity.
The society in which these texts found a home was a largely self-sufficient mixed farming economy, with pasture for cattle, sheep and pigs, and cereal production. Lord and client related to one another economically. Society also supported a set of professionals—poets, judges, smiths, physicians and wrights.
The tuath was the basic territorial unit, ruled over by a king (ri). There were approximately 150 of these tuatha in the whole country. The population of Ireland at this period was about five hundred thousand with, approximately three thousand people per tuath.
The king, as the wealthiest and most powerful man in the neighborhood, was central to the affairs of the tuath. All free men owed him loyalty and paid a special tax. He could call upon the freemen to repel invaders or to attack a neighboring tuath. He also had the power to convene an oenach (a fair) for political, social, and commercial purposes. Another type of meeting was the aireacht (meeting of freemen) at which legal business was transacted. Freemen generally stayed within their own tuath; only the professionals normally travelled outside the tuath’s borders. The large degree of legal uniformity suggests that the tuath’s lawyers kept in close touch with their colleagues in other tuatha.
The king8 was responsible for external relations, treaty making, treaties of this kind being confirmed at an oenach. Under such treaties, a victim of a crime in one tuath committed by a member of another was entitled to legal redress. Crimes that were redressable included homicide, rape, wounding, and robbery with violence, theft, housebreaking, arson, and satire.
It is important to realize that early Irish society was not egalitarian. One’s legal rights and obligations were a reflection of one’s social status, though upward and downward social mobility was an accepted fact of life. The measure of a person’s status was what was called his honor-price (log n-enech—literally, the price of his face). The greater one’s honor-price, the greater the cost of any injury done to one: the honor-price of a provincial king could be as much as 42 milch cows, whereas that of a young man still living at home could be as little as a yearling heifer. There was a basic distinction between outsiders and those with legal standing in the tuath. Generally, those without a place in a tuath were either ambuae (nonpersons), “grey dogs” (cu glas)—exiles from overseas—or castaways (murchoirthe).
The basic distinction in Irish society was between those who were nemed and those who were not, and those who were free (soer) and those who were unfree (doer). The basic unit of currency was the female slave (cumal) or various kinds of cows. A typical ocaire (small free farmer) was said to possess a dwelling house nineteen feet in diameter and an outhouse of fourteen feet. His land was worth seven cumals and supported seven cows, one bull, seven pigs, seven sheep and a horse. Additionally, he had a share in a plough-team (one-quarter) and a share in a kiln, mill, and barn.
The categorization of nemed/non-nemed, and soer/doer can be diagrammatically (see Figure 1).
A nemed had special privileges. There were limits to the distraint of his property and some legal obligations did not fall on him. Nemed failing in their duties or obligations were liable to be reduced in rank. Cowardly kings, sexually immoral bishops, fraudulent poets, and dishonest lords could be degraded to commoner rank. Similarly, a lord who could not maintain the requisite number of clients was similarly degraded. Upward mobility was possible, if not for a given individual, then for his children or their children. A customary expression in Irish literature is “A man is better than his birth.” Typically, a boaire would become wealthy enough to attract and retain clients. In so doing, he moved into a grey area between commoner and lord. If his sons could maintain or increase this level of wealth and retainership, they or their children would attain nemed status.
According to Peden, private ownership played a critical role in the social and legal institutions of early Irish society: “Thus ownership of property in all its forms was the basis of a man’s legal status and marked the extent of his participation in and protection within the legal system” (Peden 1977, p. 87).9 Peden remarks on social mobility as a striking characteristic of early Irish society. So, while economic self-sufficiency was the hallmark of free status, someone unfree could, with the accumulation of wealth, or the possession of a particular talent or skill, achieve that status.
Not only was early Irish society not egalitarian, it was also not one in which individualism was unrestrained. The kin-group (derbfine), all those descended from the same great-grandfather, exercised legal powers over its members. Each kin-group had its own land; an individual’s share in such common land could not be alienated contrary to the wishes of the rest of the group. It was possible to own land outside the kin-group and such land could be alienated freely. The kin-group was, in certain circumstances, responsible for the crimes and debts of its members, being obliged to pay the debts or fines of one who absconded after judgement. The body-fine (eraic) due when a member of a kingroup had been illegally killed was payable to the kin-group. The head of a kin-group was chosen, largely on the basis of his wealth, rank and demonstrated good sense.
While many early law codes in other societies were instigated by powerful kings “there is little evidence of royal involvement in the composition of the Old Irish law-texts” (Kelly 1988, p. 21). In fact, the law and its formulation seems to have been the preserve of a special class of practitioners, more or less dispersed through the whole country, and not under the control of any king. Kelly attributes this low- or noninvolvement of the kings in the lawmaking process to what he terms the “political fragmentation” of the country at the time of their composition/redaction, clearly seeing this as a negative point and assuming, without grounds for so doing, a prior state of nonfragmentation. Kings could, however, issue emergency legislation (after defeat in battle or in the presence of a plague). If the king was not involved in lawmaking, neither was he involved in law implementation. This was done via a tort-like process involving suretyship, pledging and distraint.
Irish society in the historic period up to the seventeenth century constitutes one of the best examples of a functioning anarchic society. Irish law was the product of a body of private and professional jurists (called brithim or brehons) and was flexible and capable of development in response to evolving social conditions (Peden 1977, p. 82). Law was a (largely) family business, enjoying high status. It is important to note that Irish law did not differentiate between what we now distinguish as tort and criminal law, in this respect resembling most systems of customary law that seem to come late, if at all, to this distinction. From the point of view of traditional law, crimes against the person tend to be regarded a special kind of offense against property.
The jurists gave judgement—enforcement was effected via a system of sureties. Sureties came in three forms: (1) a surety might guarantee payment by pledging his eneclann; or (2) a surety could pledge his person and freedom; or (3) the surety could guarantee the payment in the case of default. As Peden puts it, “Law and order, and the adjustment of conflicting interests, were achieved through the giving of sureties rather than State-monopolized coercion” (Peden 1977, p. 83).10
Irish society, organized on anarchical principles, lasted for almost twenty-five hundred years! During that time it showed a capacity, vital to any organic and developing system of social organization, to absorb alien elements and internalize them. The Brehon Law was adapted by the English/Norman invaders/settlers, despite repeated attempts to dissuade them (e.g., statutes of Kilkenny, etc.), so much so that, to the disgust of the English authorities, they became “more Irish than the Irish themselves.” The Irish legal system came to an end only when native Irish society collapsed after the Battle of Kinsale and the Flight of the Earls. It ended, not as the result of insupportable internal strains, but as a consequence of external assault. To sum up its salient characteristics:
- the possession of property, with its rights and duties, was central to one’s legal standing;
- there was no substantive distinction between criminal law and tort law;
- the legal system was private, customary, evolutionary, and agreed-upon;
- justice was primarily restorative, with restitution going to the victims rather than to a state; enforcement operated via a system of sureties and pledges, the ultimately recalcitrant being excluded from society and its protections.11
The Icelandic case provides an interesting counterpoint to the Irish experience. Unlike the Irish situation, we have an historical beginning to the Icelandic Commonwealth and a date for its end. In contrast, the Irish case has no discernible beginning. When the records start, it is already in operation and has been so for who knows how long. Whereas in the Icelandic case, one’s connection with a godi was extraterritorial, in the case of Ireland, one’s connection was fixed via the tuath in which one resided or in which one had property. Whereas the Icelandic Commonwealth lasted for about three hundred years, the Irish system lasted from probably 1000 BC until the beginning of the seventeenth century. In both cases, the precipitating cause of the change was political; in the case of Iceland, a reduction in competition caused by the emergence of five large families—in the case of Ireland, the impact of the Anglo-Norman invasion was to add impetus to an already present tendency on the part of the Irish kings to a more assertive and dominant role.
ANARCHIC LIFE-SIGNS IN A STATIST WORLD
In the early 1990s, Tom Bell, then a student at University of Chicago Law School and now a law professor at Chapman, wrote a paper on legal polycentrism for some courses taught by Richard Posner. This paper was primarily an attempt to provide a theoretical justification for nonstatist legal systems, for which Bell adapted (presumably from Michael Polanyi) the term “polycentric law,” its subcategories being customary law and privately produced law. Around the same time, Bell published a paper on the same topic in the Human Studies Review and still later, a short paper on practical applications in a Cato Policy Report in 1998 (Bell 1991–92, 1992, and 1998).
Bell notes that, once one becomes familiar with the notion of polycentric law, one sees instances of it everywhere—in churches, clubs, businesses, and so on. Without the focusing lens of the concept, polycentric law is largely invisible. Although he provides a concise account of some historical examples of polycentric legal systems, Bell notes that a justification of polycentric law requires more than case studies of small and/or insular societies; it requires a justification for how polycentric law would work here and now. Following Benson, he isolates six features common to most systems of customary law, the first five of which would likely be mirrored in systems of privately produced law. Modified slightly, these are:
- individual rights and private property take centre stage;
- victims are the enforcers of the law;
- violence is avoided by the emergence of standard (and, I would add, mutually agreeable) adjudicative procedures;
- restitution/reparation (primarily economic) would follow from treating offenses as torts (invasions of personal rights) rather than crimes (offenses against the state);
- the enforcement mechanism is ostracism, blackballing, blacklisting, banishment, exclusion from society;
- legal change comes about by evolution rather than by (legislative) revolution.
One can immediately see that these features are all characteristic of early Irish law.
Critics of anarchistic theory have not been slow to point out that Medieval Ireland is dead and gone (likewise Medieval Iceland). “It is all very well to point to historical instances of anarchic order but what,” they ask, “has anarchism done for us recently?” A complete answer to this question would take us well beyond the confines of this paper but, following Bell’s lead, some green shoots of contemporary anarchic order can be detected in the emergence and flourishing of alternative dispute resolution (ADR) institutions, private communities, and the internet.
With its historical antecedents in the medieval Law Merchant and the Maghribi law of the Mediterranean, ADR today is a fast-growing alternative to State-Law. As Bell notes: “The largest private provider of ADR services in the United States, the American Arbitration Association, administered 62,423 cases in 1995,” twice as much as it had handled twenty years earlier. There are about one thousand other agencies competing with the AAA. Bell writes: “The state’s courts have less and less time to find the law for civil litigants because their dockets overflow with criminal prosecutions enforcing legislation. That the Drug War generates most of those prosecutions merely illustrates the manifold hazards of unjust legislation.” (Bell 1998, p. 10)
In 1970 there were about ten thousand private communities in the USA. This rose to 55,000 in 1980 and 130,000 in 1990. In 1992 the number reached 150,000, encompassing some 28 million people. I don’t have the latest figures but projections would indicate that the numbers should be significantly higher. Bell writes: “Residents of private communities experience polycentric law, not as a theoretical abstraction, but as a working reality. Those people have deliberately removed themselves from the inefficient political machinations of municipal governments, seeking instead to live under regulations of their own choice and making. Faced with the futility of trying to exercise any real influence over the politicians and bureaucrats, who would run their lives, residents of private communities have rediscovered the pleasures—and undoubtedly the pains—of reaching consensus with their neighbors.” (Bell 1998, p. 10)
The internet is, perhaps, the most spectacular example of emergent order in contemporary society. Although originating in a military environment, it quickly migrated into the academic world and then moved into the worlds of business and the general public. Through the use of email and the World Wide Web, anyone with a computer and the appropriate connection is now a part of a worldwide community with access to a staggeringly large and oftentimes bewildering amount of data.
No longer can the gatekeepers of society regulate, channel and censor what there is to know. Of course, no one can guarantee the quality of the information available online, but that simply restores to each individual the responsibility to judge the value of what is received. Within the WWW world, Wikipedia must stand as an outstanding example of what can be done from the bottom up. The material contained therein is variable in quality but it contains some outstanding entries and, of course, the alert users of the resource are at liberty to question and dispute controversial material.
Finally, even within Statist circles, the feeling that all is not well with the criminal justice system is growing. Victim-impact statements, flawed as they might be, are recognition that the one offended in the commission of most crimes is not the state, but Joe Soap.
Just recently, in Ireland, we have been experimenting with what is being called “Restorative Justice.” Such programs are in use in other countries, and the Irish government is keen to evaluate their effectiveness. My cynical impression is that this is motivated not so much by concern for victims of crime or the welfare of criminals as it is by a concern for the spiralling cost of imprisonment.
The director of the experimental pilot program, Máire Hoctor, notes in the Irish Times, 10 March 2007, “It has given offenders an opportunity to rebuild their life without a criminal record.” She adds: “It’s also very cost-effective. For example, our voluntary service here costs €40,000 to run for a year and deals with around 20 offenders. In contrast, it costs €80,000 a year to keep one person in jail.” Assuming a better or at least the same rate of recidivism (and the indications are that around 70 percent of offenders do not reoffend), then the Restorative Justice program is fiscally more effective by a factor of 4,000 percent!
There is much to commend in the notion of restorative justice. The basic principle of law, or what should be its basic principle, namely, the restoration of the status quo ante, is the desideratum. The victim, so often shunted to one side as a kind of disagreeable ghost at the wedding in your standard criminal justice system, takes centre stage, and the offender makes reparation directly to the victim, not to the state.
In keeping offenders out of jail, the state not only saves massively (money which it would be idle to hope would be returned to the long-suffering taxpayer), but also keeps the neophyte criminal away from being better tutored in crime, and limits the creation of criminal networks. Of course, this restorative justice system is intended to work alongside the bloated and ineffective criminal justice system; it is not intended as a substitute. However, we live in hope.
Much of the resistance to libertarian anarchic proposals stems from a genuine inability on the part of one’s audience to entertain such proposals as serious alternatives to the status quo. To be able to demonstrate convincingly to that audience that what one is proposing has already been done and continues to be done, albeit in different historical circumstances or in a variety of (not-so-obvious) ways, cannot but have a salutary effect on the receptivity of that audience to the theoretical arguments.
- 1. A division may be drawn between libertarians and nonlibertarians, with nonlibertarians running the gamut from ultraconservative Individualists to ultrasocialist statists. The keenest dispute, however, is within the libertarian camp between those libertarians who espouse anarchism (such as Murray Rothbard and Hans-Hermann Hoppe) and those who do not (such as Ludwig von Mises and Tibor Machan). In The Ultimate Foundation of Economic Science, Mises writes as follows:
peaceful human cooperation…cannot exist without a social apparatus of coercion and compulsion, i.e., without a government. The evils of violence, robbery, and murder can be prevented only by an institution that itself, whenever needed, resorts to the very methods of acting for the prevention of which it is established. There emerges a distinction between the illegal employment of violence and the legitimate recourse to it. In cognizance of this fact some people have called government an evil, although admitting that it is a necessary evil. However, what is required to attain an end sought and considered as beneficial is not an evil in the moral connotation of this term, but a means, the price to be paid for it. Yet that fact remains that actions that are deemed highly objectionable and criminal when perpetrated by “unauthorized” individuals are approved when committed by the ‘authorities. (pp. 59–60)
- 2. See the Mises Economics Blog on Polycentric Law, July 2005 to January 2007. http://blog.mises.org/archives/003803.asp.
- 3. Quidquid recipitur recipitur secundum modum recipientis—“whatever is received is received according to the mode of the receiver.”
- 4. See also Benson (1991, pp. 41–65; 2007, pp. 624–38).
- 5. Parliament was originally not a lawmaking body but a tax-granting body opposed to the executive. After the “Glorious Revolution” of 1689, the opposition gradually disappeared so that tax-levying was unopposed. (War was primarily a private business, a matter of hostile [actual, as distinct from metaphorical] takeovers, as it were!).
- 6. See also Kelly 1988, McLeod 1992, and Stacey 1994.
- 7. The material immediately following is a précis of Kelly.
- 8. The role of the king was quasi-sacerdotal, no doubt reflecting an earlier stage of social development, which persisted in other societies and recurred with surprising frequency until relatively recently, e.g., the Chinese emperor, the Egyptian pharaoh, the Roman and Byzantine emperors, and the notion of the divine right of kings.
- 9. See Dillon and Chadwick (1967, pp. 98–99).
- 10. Peden notes that while the Irish had kings, it is important to realize that they were not lawmakers. Moreover, they could, in fact, be sued, just as any other freeman albeit with difficulty. Each freeman had what was known as his honorprice, his dire or enclann. This honor-price was essential to the working of the systems of sureties. In taking or in defending an action, a petitioner or a defendant took sureties to ensure the honoring of the judgement of the brehon court. See also Hughes (1966).
- 11. See Whiston (2002); Runolfsson Solvason (no date); Murphy (2005); Friedman (1979); Long (2002); and Morrow (2007).
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