Bruce Benson’s The Enterprise of Law: Justice Without The State is almost guaranteed to shock and upbraid the ear of a mainstream political thinker, but for those considering alternatives or who are already familiar with or sympathetic to the kind of argument Benson puts forth, the work proves musical.
As Benson states in the introduction,
Anyone who would even question the “fact” that law and order are necessary functions of government is likely to be considered a ridiculous, uninformed radical by most observers… But even though most academics do not question the logic of government domination of law and the maintenance of order, large segments of the population do… Privately produced crime detection and prevention, arbitration, and mediation are growth industries in the United States.
Benson’s study is an example of applied economic theory. Rather than attempting to develop a new body of economic theory which explores the logic of market-supplied legal and security services which are currently provisioned (poorly) by the State, Benson is instead taking that theory as developed by earlier thinkers and applying it in a variety of ways to historical and imagined human experience. He first sets out to survey the history of law through this lens to show the way in which the State encroached on privately-provided law to further its other social agendas. He then moves on to an examination of various econo-historical studies performed by academics to show the current extent to which private citizens in the US have already turned to market-supplied legal and security services. Following this, Benson turns to similar studies to demonstrate empirically the failure and corruption of government law. Finally, he explores the logic of how market-supplied law might come to totally supersede government law in the future and why this would not be an epic social disaster.
Customary Law and Restitution
Benson’s arguments about the failures of the modern legal system as administered by the State seem obvious when one learns of two legal concepts which have since been lost to history, the origination of law through custom and social practice, and the focus of law on providing restitution to victims rather than punishment to aggressors. Benson defines law as,
both rules of conduct and the mechanisms or processes for applying those rules.
Under customary law, which is prevalent in all “primitive” societies without developed State institutions (and which undergirds modern American statutory law as the much heralded “Common Law” tradition), rules of conduct emerge from the values, beliefs and interactions of communities of people. When a conflict arises, the aggrieved parties take their case before a mutually-trusted third party, a judge, who hears the concerns of each party and attempts to place their disagreement into the context of previous decisions and existing cultural practices while also considering any novelty to the present circumstances. He then provides a ruling and a judgment of the restitution the aggrieved party might seek from his aggressor to make him whole.
Although customary law develops on a case-by-case basis,
collective action can be achieved through individual agreements, with useful rules spreading to other members of a group.
Under customary law, incentives matter and
good rules that facilitate interaction tend to be selected over time, while bad decisions are ignored.
The end result is that customary law is characterized by:
- being socially and culturally aligned with the population in question, which increases the likelihood it is respected and considered valuable by all social participants
- responsiveness and continual “improvement” and updating as social norms change through practice and experience
- simplicity, because rules are only developed as needed due to novel circumstances, and often disagreements are settled by referring to existent custom or prior precedent
- fairness, because the emphasis is making a wronged party whole, thereby permitting the guilty party to return to civil society after “repaying their debt”
Compare this to the legislative law of the State, which is characterized by:
- a professed goal of molding or shaping the target population to behave in novel ways according to the new law, without regard to previous cultural practice
- both stagnation and hyper-novelty; stagnation in that a law once on the books rarely comes off and may continue to remain “in force” even when the circumstances it addressed are no longer relevant, and hyper-novel in that the law might be changed and added to more quickly than local cultural practice changes
- complexity, because rules are developed and adopted as quickly as special interest groups can lobby for them, and no existing dispute or claim of harm need come before a law can be passed
- lack of fairness, because restitution is rarely made to actual victims under the law and many laws promote cases which have no empirically-identifiable victim other than “the State” whose laws have been violated
An important corollary idea here is that true law is discovered through practice and experimentation, whereas statutory law is created and imposed by special interest group pressure and a desire to redistribute social resources.
The Rise of Authoritarian Law
There’s a bit more to it than that, but for a general outline to support the argument this will suffice for now. If customary law is superior to legislative law in providing responsive, fair (ie, “just”) legal structure for society, how is it that legislative law has come to dominate in the modern era? Could customary law not keep up with the rapid pace of change in society marking the modern era, or was there some other flaw or shortcoming of the approach that made State-administered law more “practical” and thus dominant?
Two facts of social history help explain the rise of legislated law. The first is that the philosophy of freedom is a recent phenomenon as a coherent and consistent body of thought. It was incredibly difficult for groups of people even a few hundred years ago to articulate resistance to encroaching State power in terms of abstract personal liberties that were being conceded now or in the future as a necessary consequence of some new rule being imposed. Philosophically, no true, long-term oriented resistance to the principle of State law was being advanced or could be advanced. The second is that history (especially early Western history and, relevant to the experience of Americans, early British and Anglo-Saxon history) is marked by continuous warfare amongst social groups, and warfare promotes the centralization of power in the hands of a dictator (read: a king) who is tasked with leading the group to victory over its enemies. This warfare not only increases the king’s prestige and makes it easier for him to make new claims on power as necessary to protect the population from outside aggression, it also creates the conditions which necessitate his continually raising finance to prosecute his wars which make mulcting via the legal system a logical course of action.
Benson demonstrates these ideas through reference to the rise of “king’s courts” alongside common law or customary courts in medieval England. Over time these king’s courts not only claimed sole jurisdiction on settling specific disputes (ie, monopoly over competitive private solutions), but they also invented an entire body of offenses (felony crime) with no victim other than “the king’s peace” which allowed the king to extract rents from the population in the form of trial and court fees, fines and punishments, jail bonds, etc. In time, the king’s courts came to dominate legal practice just as the power and prestige of the English king and his state rose accordingly. One social consequence, of many, was a worsening effectiveness of “the law” as a social mechanism and a lowering of the status of the individual and his rights in society, primarily because
The attributes of customary legal systems include an emphasis on individual rights because recognition of legal duty requires voluntary cooperation of individuals through reciprocal arrangements.
In other words, individual rights and customary legal systems go hand in hand, whereas collectivism and legislative legal systems are partners in crime. This is an important and often overlooked point for advocates of greater personal liberty!
Conclusion
What I have summarized above is only the first fifth of the book, and even then it is missing all manner of interesting detail and further argumentation that paint a truly rich philosophical picture for those interested in the role law plays in civil society. While the book is not without its faults, they’re relatively minor overall and Benson’s focus on empirical studies will prove especially valuable for those who prefer concrete evidence of principles in action. This is a title that is not only excellent for returning to as a reference when formulating arguments but whose implications for reorganizing society are profound and worth pondering at length.
A House Rises 