Private Law

atlaspatrol2.jpg src=""
width="400" height="290" border="0" align="right" hspace="7">With the recent abuse of authority by government bureaucrats charged with law enforcement in South Carolina, it seems appropriate to suggest that there is a much better alternative to the provision of law and law enforcement, and that specifically law is far too important to leave to politicians and bureaucrats.

In my copius free seconds between my job and various other things I am working on, I have been reading and studying Bruce Benson's The Enterprise of Law. The book was published in 1990 and is already considered a classic by many libertarian-anarchists, as it should be. Unfortunately, it is also out
of print. Benson starts off by looking at customary law traditions amongst the Kapauka Papuans of West New Guinea, then goes back well over a millennium to the customary legal traditions of the Anglo-Saxons and the rise of the Law Merchant. He traces the growth of authoritarian law and subversion of customary law through the rise of kings in England and into the present day.  After providing the history he uses public choice theory to examine government provided law (authoritarian law) as a political market. He then addresses the trend in the 1980's towards privatization of certain law enforcement and judicial proceedings through outsourcing via contract to private firms. In the final section of the book Benson addresses the various private alternatives that have grown, and how a legal system firmly rooted in a free market might exist. Several other authors, including David Friedman, Murray Rothbard and Linda& Morris Tannehill, have envisioned private law, but limit their arguments to short sections of their already short books. Bruce Benson covers a lot more territory in much more depth making the argument for private law more complete.

Before I get into the the arguments presented in the book, I have a few comments about the writing style and organization of the book. It is obvious that Bruce Benson is an academic. The book is well researched and he cites and quotes his research quite thoroughly. There are a many places where I felt that his original writing was only a bit of mortar between the stones of his sources. While this makes for solid argument, it also makes the writing style stiff and dry. Fortunately, his organization is superb and he brings up sufficiently interesting approaches to his arguments that the book is not as painfully boring as many academic works are. He (or his publisher) has chosen endnotes instead of footnotes, which I find irritating when flipping back and forth while checking references. It is a reasonable trade-off though, as his quoting is extensive enough that footnotes would take a considerable portion of each page.

The first section of the book looks at three customary legal systems. The Kapauka Papuans appear to be a true market anarchist society with no common property, even between husband and wife or parents and children. Law is provided by a tonowi. A tonowi was a wealthy man held in high regard by the community, "The way in which capital is acquired and used make a great difference," Popisil concluded; "the natives favor rich candidates who are generous and honest."  angsaxmurder.jpgIn a dispute, the disputants would argue loudly so as to attract the attention of others nearby, who would in turn start arguing loudly. The tonowi would then step into the "argument", ask questions, gather evidence, consider precedents in similar cases, and declare his judgement. What is most astonishing is that the defendant on being found guilty would accept his punishment without further debate or complaint.

The second example is pre-Norman Anglo-Saxon society. While perhaps not the best example of a private legal system, it is very important for understanding English and American legal systems, and is referenced frequently in the second section of the book.

The third example is the Law Merchant. This is a classic example of civil, orderly conduct arising from mutually beneficial trade.

The Law Merchant evolved into a universal legal system through a process of natural selection. As merchants began to transact business across political, cultural, and geographic boundaries, they transported trade practices to foreign markets. Those previously localized customs that were discovered to be common to many localities became part of the international Law Merchant. Where conflicts arose, practices that were the most efficient at facilitating commercial transaction supplanted those that were less efficient. By the twelfth century mercantile law had developed to a level where alien merchants had substantial protection in disputes with local merchants and "against the vagaries of local laws and customs."

It is important to note here that in all three customary legal systems the most equitable solutions are sought, and that the legal system evolves rapidly with changes in circumstances.

After describing three examples of customary legal systems, Bruce Benson goes into an overview of the rise of authoritarian law in English history.  He notes that with the establishment of Kings in the Anglo-Saxon nations as a result of constant warfare, came the rise of criminal law. Revenue to fund warfare was gained by fines from those who broke the King's Peace. As the costs of war escalated, more and more civil laws became violations of the King's Peace or criminal. William the Bastard and his successors accelerated the change of customary, civil law into criminal law. As the legal system changed from one of restitution (bot, wer, and wite), to one of criminal fines and confiscations along with corporal and capital punishments, the requirements of enforcement also changed. Where enforcement had belonged to the community and individual it soon became the responsibility of the King's officers - Sheriffs, frankpledge groups, the Exchequers, and itinerant justices.

The conclusion reached in the discussion of the rise of authoritarian law is that our present legal system evolved to best suit the ruler(s) and not the citizenry.

In just the first two chapters Bruce Benson shows the possibility of private law and points out some of the problems of modern government law, through historical evidence alone. In the rest of the book he looks closer at economics and other theoretical issues with the modern legal system, while still looking at the historical record as evidence for the theories.

Parts  II-V, where Bruce Benson discusses public choice theory analysis of our modern legal system, outsourcing law, rationalizing government law, and fully privatizing law will be written about in future posts. Part II is here.

Share this

Friedman's "Law's Order" is

Friedman's "Law's Order" is not an explicitly anarchist book (like The Machinery of Freedom), but it is highly relevant to private law.

I'm halfway through "Law's

I'm halfway through "Law's Order" and have purchased, but not yet started reading, "The Enterprise of Law."