Privately Produced Law

 

by Tom W. Bell[Editor: This article is reprinted from Extropy #7, WINTER/SPRING 1991. Extropy was published by The Extropy Institute]

The recent revolutions that have swept through Central and Eastern Europe have delivered a decisive blow to socialist ideology. State ownership has been tested and discarded. Calls for privatization ring loudly, heralding the advent of a freer and more prosperous era. However, the dawn of this new age reveals a pressing question: 'Privatize what?'

 

Almost everyone in these newly liberated countries agrees that farms, steel mills, shipyards, and other manufacturing industries should be privatized. Some advocate for further privatization, even extending it to industries that are commonly state-owned in the West, such as railways, television, and radio. A courageous few, influenced by long-outlawed libertarian authors, suggest an unprecedented shift towards privatizing schools, postal services, and social security.

 

We should pose the same question to ourselves: 'Privatize what?' If those accustomed only to totalitarian socialism can envision a society less statist than our own, then we should certainly be capable of imagining an even freer society. Why limit ourselves to private schools, postal services, and social security? Why not consider privatizing everything?

This is the path advocated by anarcho-capitalists. Their extreme stance distances them even further from conventional political discourse compared to their libertarian counterparts who advocate for a minimal state. Advocates for a minimal state generally argue that certain services must remain under national control. Anarcho-capitalists and minimal statists usually engage in debates regarding whether national defense and police protection could or should be privatized. Discussions about currency issuance, on the other hand, require substantial economic expertise.

 

Despite the usefulness and intrigue of these debates, they do not address the core conflict between anarcho-capitalism and minimal statism. A state could potentially outsource its national defense, police force, and mint and still retain its status as a state, as long as it retains control over the law. Soldiers, law enforcement officers, and those in charge of minting money simply execute orders; the law itself is the true foundation of the state's authority. Beneath its facade of civility lies a foundation of raw, unbridled force.

 

This is the crux of the matter: who possesses the authority to establish the law? Statists or consumers? I will argue in favor of the latter.(1)

 

I want to clarify that I am not advocating for the complete abolition of all laws. Humans cannot function within complex societies without the guidance provided by laws. However, they can exist without the coercive imposition of laws. This distinction is crucial, as anarcho-capitalists are often misconstrued as rejecting the validity of laws altogether. This couldn't be further from reality. Anarcho-capitalists perceive the state as a criminal entity. From their perspective, state law essentially lacks legitimacy.

 

So, what is the alternative to state law? It is a system of overlapping jurisdictions where law is privately produced, operating in a state of free and open competition—a polycentric legal system.

 

In the following discussion, I will offer a brief overview of the history, principles, and merits of privately produced law, contending that it presents a more efficient and just alternative to state law.

 

                      Law Prior to the State.

Friedrich A. Hayek traces the origins of law to the natural selection of social orders. He explains that certain behaviors, such as violence, theft, and deceit, are detrimental to social life, making it impossible for societies to exist(2). Hayek argues that rules of conduct evolved through a process of selection, guiding individuals' behavior to enable the possibility of social life. These rules, which were present before the establishment of formal institutions like courts and written laws, were integral to the structure of social life in primitive human and animal societies.(3)

 

Polycentric legal systems researchers have taken an interest in these customary laws existing prior to state laws. In "The Enterprise of Law," Bruce Benson focuses on the legal system of the Kapauku Papuans in West New Guinea(4). He highlights the sophisticated nature of this "primitive" legal system, emphasizing its endorsement of individualism, personal freedom, and recognition of private property rights. Benson also underscores its ability to resolve intricate jurisdictional conflicts and create mechanisms for amending customary law.(5)

 

In his work titled "Enforcement of Property Rights in Primitive Societies: Law Without Government,"(6) Benson also notes similar characteristics in the legal systems of other groups, such as the Yuroks in Northern California(7) and the Ifugao in Northern Luzon(8). These societies exhibit advanced features in their legal structures despite lacking formal government-supported legal systems.

 

David Friedman highlights medieval Iceland as his prime example of a polycentric legal system. He describes it as a system that "...might almost have been invented by a mad economist to test the lengths to which market systems could supplant government in its most fundamental functions."(9) Murray Rothbard similarly reinforces arguments for privately produced law by referencing a thousand years of Celtic Irish Law.(10)

 

These and numerous other instances of customary legal systems serve as evidence that laws can exist without the need for states. They also offer insight into the nature of laws that emerge in the absence of state intervention. Following a thorough examination of customary legal systems, Benson identifies six fundamental characteristics commonly shared among them:

 

1)A primary emphasis on individual rights and private property.

2)Enforcement of laws by victims through reciprocal agreements.

3)Establishment of standard adjudicative procedures aimed at preventing violence.

4)Offenses treated as torts and punishable by economic restitution.

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."(11)

 

Anglo-Saxon Customary Law

Anglo-Saxon customary law provides a notable example of a legal system based on custom and tradition. Within this system, a group consisting initially of ten to twelve individuals, primarily identified through kinship and later by neighborhood, would assemble to pledge surety for the good conduct of its members. This group ensured its commitment by covering the fines of its members if they were found guilty of violating common law. As such, a surety group had strong financial motives to monitor its members' behavior and to exclude those who persistently engaged in criminal acts. Exclusion functioned as a potent sanction: "Every individual either had sureties and close associates, or they would not be able to operate beyond their own land, as no one would engage with someone lacking a bond or unable to secure anyone to vouch for them."(12)

Reciprocal voluntary agreements hold a timeless appeal. Drawing modern parallels, similar to insurance agencies, the surety groups facilitated risk-sharing among members by pooling resources. Like credit bureaus, they endorsed the credibility of their members while denying entry to individuals from outside who had previously exhibited untrustworthiness.(13)

 

In the Anglo-Saxon legal system, the moots, known as public assemblies of common men and neighbors, did not dedicate their efforts to interpreting the law; instead, they relied on customary norms for guidance. Resolving disputes depended entirely on the facts of each case, usually established through ritual oath-taking. The disputants initially swore to their accusations and denials. To support their claims, each party called upon oath helpers (which included members of their surety groups) to provide their own oaths. For the court to validate any given oath, it had to be delivered flawlessly, although the poetic format of the oaths facilitated meeting this requirement. Deadlocks in disputes were often resolved through ordeals involving fire or water.

 

Anglo-Saxon law did not acknowledge categories for crimes against the state or society; it solely recognized crimes against individuals. Much like other customary legal systems, the moots commonly required criminals to provide restitution to their victims. Failure to comply would often result in outlawry and blood-feud. For instance, murderers were obliged to pay wergeld (literally, "man-gold") to the kin of their victims, whereas lesser offenders had to compensate their victims with fines graded based on the victim's status and the significance of the body part lost, whether limb, hand, digit, or fingertip. Heavier penalties were imposed for crimes committed in or around one's home, acknowledging the importance of private property. Similar to the surety groups, these courts relied on voluntary cooperation. According to Berman, "Jurisdiction in most cases relied on the consent of the involved parties. Even if they consented to appear, they might not remain present throughout the proceedings, and the moot typically couldn't enforce their submission to its decision. Therefore, the moot's process needed to assume and foster a sufficient level of trust between the parties for the system to function effectively."(14)

 

The Anglo-Saxon customary legal system safeguarded the liberties of the English for an extended period. However, it was eventually supplanted by royal law. This transition sheds light on the fundamental differences between private and state law.

 

The Rise of State Law

 

The ascent of state law often followed swift military conquests in many societies. However, its introduction in England unfolded with nuanced subtlety. Two significant factors set the foundation. Firstly, the persistent menace of foreign invaders, notably the Danes, had consolidated power among England's protectors. Secondly, the impact of Christianity had bestowed a divine aura upon the throne, portraying the king as the representative of Christ. Stepping onto this stage was Alfred, the King of England during the final years of the ninth century.

Before Alfred's reign, men willingly served their kings. A king had to provide battle equipment, sustenance, and spoils to encourage others to join him in battles. More significantly, he volunteered to defend the vulnerable—for a fee. In certain cases, weaker victims struggled to convince their much stronger offenders to appear before the court. Kings intervened by supporting the claims of such plaintiffs. This compelled bold defendants to face the court, where they incurred regular fines along with an additional fee payable to the king for his services.

This extra fee, known as wite, transformed law enforcement into a lucrative business. King Alfred, bolstered by the looming threat of invasion and empowered by his divine title, undertook the responsibility of prohibiting all fighting within his realm. He proclaimed that anyone found guilty of assault owed him wite for violating the king's peace. However, lacking the means to enforce this decree, it was largely disregarded.

 

Nonetheless, he initiated a pattern. Over the following centuries, royal law would gain strength, particularly after the Norman invasion of 1066. Eventually, it would engulf almost the entire legal system in England, as well as in other European countries. But before royal law achieved dominance, it faced substantial rivalry.

 

From Polycentric Law to State Law

 

The period between 1050 and 1200 witnessed a profound legal transformation across Europe. As the authority of the Church ascended to rival that of monarchs, the Church's legal system, influenced by the revived Justinian codification of Roman law, advanced to unprecedented levels of complexity. Paradoxically, the newfound autonomy of the Church played a role in nurturing the development of the state, as kings restructured royal law to imbue it with the order and potency akin to ecclesiastical law.

Numerous legal systems emerged concurrently. The proliferation of thousands of new cities and towns led to the rise of urban law, establishing new centers of authority. Additionally, the backing of the church and a scarcity of labor introduced a form of reciprocity into the relationships between peasants and lords, which spurred the development of manorial law. Vassals also gained recognition within the distinct jurisdiction of feudal law. Simultaneously, the growth of a sizable and mobile merchant class contributed to the evolution of merchant law.(15)

 

Berman offers an outstanding resource on this intricate legal landscape in his comprehensive work "Law and Revolution." He elaborates on how the competition among various jurisdictions played a role in safeguarding individual freedoms: "A serf could seek refuge in a town court against their master. A vassal could seek protection in the king's court against their lord. A cleric could appeal to the ecclesiastical court against the king."(16)

 

In general, royal law emerged victorious in this competition among legal systems. It held two critical advantages over its competitors. Firstly, the power to levy taxes enabled it to subsidize its legal services. Royal courts incorporated the local functions of merchant law by adopting its precedents and offering to enforce them at discounted rates. Secondly, royal law possessed significantly more coercive power than other legal systems, which relied on reciprocity and trust for operation. An illustrative example of this power was Henry II's resolution of the bitter dispute with Archbishop Thomas Becket over the boundary between royal and church jurisdictions: Becket was assassinated.

 

Through these tactics and other strategies, Henry II substantially expanded England's royal law. He established a permanent court staffed by professional judges, introduced inquisitional juries, and implemented regular circuits for itinerant judges. The latter initiative, in particular, underscored Henry's intentions as his itinerant justices also functioned as tax collectors.

The legal conquests led by King Henry II and other rulers across late-medieval Europe established a dominion of state law that endures to this day. Although rooted in the sturdy foundation of customary law, state law underwent peculiar and convoluted growth. It reclassified offenses like murder, rape, and theft as crimes against the state rather than as offenses against individuals. Fines collected from these crimes were directed to the king, leaving victims only the gratification of witnessing the perpetrators endure corporal punishment. Dissatisfied victims still sought restitution outside the courts, prompting state officials to prohibit vigilante justice. This restriction significantly reduced victims' motivation to pursue criminals, and statutes compelling victims' cooperation proved largely ineffective. Consequently, the state expanded its police powers necessary to enforce its laws on both criminals and victims alike.(17)

The Persistence of Polycentric Law

Despite the expansive monopolistic powers of state legal systems, competition among legal systems has never been entirely suppressed. States themselves engage in competition to allure human and financial capital. The law merchant has endured, sheltered in a realm beyond the jurisdiction of any single state's laws: international trade.

 

Even within state borders, polycentricity has endured. The United States, in particular, boasts a diverse array of competing jurisdictions. Each federal, state, county, municipal, and military court system upholds its distinct substantive and procedural rules, often conflicting with one another. However, these "official" jurisdictions only scratch the surface.

 

In Justice Without Law?, Jerold S. Auerbach documents several groups that formulated private law systems: early Puritan, Quaker, and Dutch settlers; various utopian communes in the nineteenth century; emancipated slaves; Mormons; immigrant communities like Chinese and Jewish groups; merchants; and uneasy labor-management associations.(18)

 

Pioneers venturing beyond the confines of state law established their own private legal systems. Terry L. Anderson and P.J. Hill offer a comprehensive overview of the laws within land clubs, cattlemen's associations, mining camps, and wagon trains(19). Benson provides a captivating narrative of vigilante justice on the western frontier(20). Privately produced law continues to flourish in the United States, showing signs of increasing strength. Americans possess a unique talent for establishing private organizations, each developing a set of rules that rightfully qualify as "law."

Leon Fuller elucidates: "If the law is regarded as ‘the enterprise of subjecting human conduct to the governance of rules’ [Fuller's definition], then this endeavor is being conducted not on two or three fronts, but on thousands. Those engaged in this enterprise include individuals who draft and administer rules governing the internal affairs of clubs, churches, schools, labor unions, trade associations, agricultural fairs, and various other forms of human association... In this country alone, there exist 'systems of law' numbering in the hundreds of thousands."(21)

 

Many of the organizations listed by Fuller offer legal systems in areas that the state has overlooked or intentionally disregarded. However, in recent years, privately produced law has seen the most rapid growth in a domain where it directly competes with state law: commercial arbitration.

Private arbitration has shifted entire categories of disputes away from state courts. Industries such as insurance, construction, stock exchange, and textiles (among others) extensively utilize arbitration(22). Currently, there are approximately 600 arbitration associations in the U.S. The largest among them, the American Arbitration Association, reported 52,520 case filings in 1989, marking an increase of over 36% from the figures in the 1980s. In total, around 90,000 cases were filed with arbitrators in 1989(23). Why are state courts experiencing such significant loss of business? Because private courts offer enhanced speed and efficiency compared to state courts.

 Theories of Privately Produced Law  

Economists dating back to Adam Smith have argued that competition in production benefits consumers, while monopolies tend to result in inefficiency and waste. Gustave de Molinari was among the first legal theorists to question why this principle should not apply to law as it does to goods like apples, cotton, and iron. He posited that under the state's monopoly of law, "Justice becomes slow and costly, the police become vexatious, individual liberty is no longer respected, and the price of security is unfairly high and disproportionately distributed."(24) Consequently, he advocated for a non-monopolistic legal system, foreseeing that once "all artificial obstacles to the free action of the natural laws that govern the economic world have disappeared, the situation of the various members of society will become the best possible."(25)

Since de Molinari, other scholars have developed sophisticated theories of polycentric law. Alongside the examination of customary law mentioned earlier, the work of Randy E. Barnett and Morris and Linda Tannehill stands out. Barnett, drawing from firsthand experience, critiques the state's legal monopoly and promotes a progressive polycentric alternative(26). While Ayn Rand endorsed state law, the Tannehills use her objectivist ethics to outline the moral superiority and fundamental aspects of a privately produced legal system.

 

The polycentric legal systems advocated by these theorists share several key characteristics: the safeguarding of individual rights and private property; voluntary agreements for security provision; non-violent resolution of disputes; restitution supported by crime loss insurance; enforcement primarily through the threat of ostracism; and the development of legal norms through entrepreneurial activity. Notably, these modernized attributes align with the six common features Benson identified in all customary legal systems (mentioned earlier).

Advocates of polycentric legal systems hold differing views on justifying these common features. For instance, Rothbard contends that private courts should adhere to a precise legal code based on acknowledged libertarian principles, emphasizing non-aggression against others' person or property – a foundation rooted in reason rather than tradition. On the contrary,(27) Friedman argues that the law market inherently protects individual rights because people value being left alone more than others value asserting control over them.(28)

 

These justifications epitomize two contrasting approaches to the study of polycentric law: the philosophical/normative and the economic/descriptive. While many legal theorists blend these methods, they offer useful frameworks for categorizing research in polycentric law.

 

Robert Nozick, in "Anarchy, State, and Utopia," employs the philosophical/normative approach to challenge the desirability of a polycentric legal system(29), sparking a series of defenses of privately produced law grounded in moral rights.(30)

 

Fuller's "Morality and the Law" introduced polycentric law to mainstream legal philosophy, defining "law" broadly enough to encompass privately produced law, while criticizing legal positivism's authoritarian tendencies(31). Barnett argues that Fuller's premises should lead him to reject monopolistic legal systems entirely, outlining a program to bridge the gap between these contrasting approaches.(32)

 

Researchers often employ the economic/descriptive approach more than the philosophical/normative one. Barnett and Benson utilize public choice arguments to analyze the actions of state agents and critique the perverse incentives created by state legal institutions(33). Postema(34) and Sugden(35) support Hayek's theory of the spontaneous development of law, demonstrating through game theory the significant role social conventions play in coordinating behavior.

 

However, economic analysis has its counterarguments. Landes and Posner, in their sophisticated critique, argue that private adjudication relies on state courts to enforce decisions, under-produces precedents, and generates conflicting jurisdictions(36). Benson counters these claims, presenting compelling arguments drawn from examples of successful private legal systems, such as the law merchant mentioned earlier.(37)

Supporters of polycentric legal systems have yet to fully utilize the economic/descriptive approach to their advantage. The comparison between the private production of law and the private production of money merits deeper exploration(38). For instance, in a polycentric system, courts don't merely sell judgments. Instead, they sell judgments that people will respect by demonstrating impartiality and wisdom. This analogy aligns with privately produced money: while anyone can designate a piece of paper as "money," people will only trust currencies from banks demonstrating sufficient reserves and prudent management.

 

The analogy extends further. Banknotes represent claims to commodities. In a free banking system, only banks effectively backing their claims can maintain currency circulation. Bruno Leoni interprets the law similarly: "Individuals make the law insofar as they make successful claims,"(39) suggesting that legal norms emerge from claims with a high likelihood of fulfillment in society. This perspective takes polycentricity to its logical extreme, implying that there are as many potential sources of law as there are successful claims.

 

Polycentric legal systems are inclined to generate successful claims to restitution. Similar to the transfer of a claim to a commodity through banknotes, the right to restitution could transfer from one party to another (referred to as "courtnotes"). In such a system, individuals might acquire insurance to protect themselves against losses due to others' illegal actions. When insurance companies cover their clients' losses, they would inherit the right to demand restitution from the responsible parties, transferring the original victim's claim to the insurance company.

 

Insurance companies might exchange claims to restitution among themselves to settle their accounts, leading to practices akin to those observed among private banks: transferable courtnotes, clearinghouses, and client information bureaus.

 

The Future of Privately Produced Law

 

Looking into the future of privately produced law, drawing from insights by Barnett, Friedman, Rothbard, and the Tannehills, offers a speculative yet plausible view of the legal system in a free society.

 

Disputes stemming from contractual relations shouldn't pose significant challenges since contracts can specify settlement before a chosen arbitrator, a practice already common in various trade areas.

 

In the absence of such a stipulation, should a dispute arise, parties can mutually agree to take the matter to a private court. Objective courts, essential for survival, would thrive while biased ones would lose business swiftly.

 

Suppose the opposing party refuses to go to court anticipating a loss. Here's where the role of insurance companies becomes crucial(40). In a society with privately produced law, most individuals would likely possess legal insurance for such occasions.

 

Informing your insurance agent about the opposing party's reluctance, you can file a claim under your policy, obtain compensation, and leave the resolution to your agent. The right to pursue legal action shifts to your insurance company, which contacts the opposing party's legal representative for a hearing. Facing a loss, the opposing party's insurance premiums escalate or may get canceled. Attempting to obtain a policy elsewhere would be challenging due to a legal credit bureau operated by the insurance industry, disclosing the individual's non-cooperation.

 

If your opponent lacks legal insurance, you might not have engaged in business with them initially, as their inability to provide proof of legal coverage would have raised red flags. Forgetting to verify may lead to increased premiums for your insurance. Your insurance company could then demand restitution from the non-compliant party directly or sell the right to restitution to a private police agency or freelance bounty hunter.

hose capturing an outlaw wouldn't seek punishment but rather monetary restitution. In cases where assets are unavailable for seizure, garnishing wages or, in extreme instances, placement in a workhouse until debts are cleared could follow. Such outcomes should encourage most to obtain legal insurance or representation.

 

Disputes stemming from criminal acts would unfold similarly, with uncooperative criminals likely handed over swiftly to insurance companies, private police agencies, or bounty hunters.

 

In this system, laws emerge from consumer preferences. You'll have the choice of the court and, subsequently, the legal system for your cases, provided the opposing party agrees. This unanimity requirement, combined with economic incentives to adhere to general standards, will likely result in a fundamental legal code accepted by most courts, albeit some offering specialized laws for specific cases.

 

What might this core code entail? Rothbard's idea of nonaggression against person or property may be accurate, but Friedman's viewpoint about its economic roots rather than ideology likely holds weight.

Concerns about war erupting in a system of purely private law are unfounded. Private law producers cannot rely on taxes for income; they must find willing buyers for their services. Law merchants favoring warlike approaches face a competitive disadvantage as they must subsidize aggression, offering fewer or lower-quality services per unit of purchasing power. In a polycentric legal system, military dictators would quickly face bankruptcy due to the costliness of their actions. Even attempts to introduce taxation and convert customers into slaves would merely reestablish a state, which cannot be used to condemn a system of privately produced law.

 

While there might be concerns about the ease with which military dictators could reestablish states in a system of privately produced law, such a scenario seems unlikely. In a polycentric legal system, power is decentralized without borders, capitals, or centralized leaders to seize or control. Any aspiring tyrant faces numerous obstacles as each coercive action in a free society would provoke the resistance of private protection agencies. These agencies would hold the tyrant accountable for any wrongdoing, working together or separately to ensure correction.(41)

 

Certainly, success in any social organization hinges on the attitudes and beliefs of its participants. If most people believe they need and want coercively imposed laws, they will have them. However, if a critical mass of people - not necessarily a majority - believes in the freedom to choose their own legal standards, privately produced law stands a good chance of flourishing. In fact, it has already begun taking root within the crevices of the state's legal structure. The efficiency, fairness, and resilience of a purely private legal system offer strong potential for growth, potentially diminishing the power of the state and allowing individuals to enjoy the benefits of a legal system based on genuine consent.

 

NOTES

1)l do not consider myself to be an anarcho-capitalist. Until l hear a convincing justification of statism, however, l will continue to advocate the ideal of real consent in all human relations - including the law.

2)Friedrich A. Hayek, Law, Legislation, and Liberty, vol.|(Chicago: University of Chicago Press, 1973), p.44.

3) Hayek, Law, Legislation, and Liberty, vol.|, p.43.

4)Bruce L. Benson, The Enterprise of Law (San Francisco: Pacific Research institute, 1990): 15-21.

5) For detailed information about the Kapauku legal system turn to Benson's main source: Leopold Popisil, Anthropology of Law: A Comparative Theory (New York: Harper and Row, 1971).

6)Bruce L. Benson, “Enforcement of Property Rights in Primitive Societies: Law Without Government," Journal of Libertarian Studies 9 (Winter 1989): 1-26

7) Benson's main source: Walter Goldsmidt, "Ethics and the Structure of Society: An Ethnological Contribution to the Sociology of Knowledge," American Anthropologist 53 (October-December 1951): 506-524.

8) Benson's main sources: E. Adamson Hoebel, The Law of Primitive Man (Cambridge, MA: Harvard University ae 1954); and R.F. Barton, “Procedure Among the Ifugao," Paul Buchanon, ed., Lawand Warfare (Garden City, NY: The National History Press, 1967). Benson also repeats many of the observations about the Ifugao that he makes in “Enforcement of Property Rights in Primitive Societies: Law Without Government” in his article "The Lost Victim and Other Failures of the Public Law Experiment.” Harvard Journal of Law and Public Policy 9 (Spring 1986): 399-427.

9) David D. Friedman, "Private Creation and Enforcement of Law: A Historical Case," Journal of Legal Studies 8 (March 1979), p.400. Friedman summarizes and interprets research on icelandic law more briefly in his book The Machinery of Freedom, 2nd ed. (La Salle, lilinois Open Court, 1989}.

10)Rothbard, Murray. For a New Liberty. Revised edition. New York: Collier Books, 1978.

11) Benson, The Enterprise of Law, p.21. Benson's analysis draws heavily from his earlier article, "Enforcement of Property Rights in Primitive Societies: Law Without Goverments.”     

 12)Leonard P. Liggio, "The Transportation of Criminals: A Bricf Political-Economic History," in Barnett and Hagel, eds. Assessing the Criminal: Restitution, Retribution and the Legal Process (Cambridge, Mass: Ballinger Publishing Co., 1977), p.273.

13)For in-depth treatment of the frankpledge system, see William A. Morris, The Frankpledge System (New York: Longmans, Green, and Co., 1910) and J.E.A. Joliffe, The Constitutional History of Medievel England (W.W. Norton & Co. Inc.: New York, 1961).

14) Berman, Law and Revolution, p.56.

15) For an excellent source of information about the law merchant see Leon E. Trakman, The Law Merchant: The Evolution of Commerical Law (Littleton, COlo.: Fred B.Rothman & Co., 1983).

16) Berman, Law and Revolution, p.10.

17) For a particularly shocking account of the treatment of victims in the U.S. legal system, see William F. McDonald, "The Role of the Victim in America,” in Barnett and Hagel, eds. Assessing the Criminal: Restitution, Retribution, and the Legal Process.

18) Jerold S. Auerbach, Justice Without Law? (New York:Oxford University Press, 1983).

19) Terry L. Anderson and PJ. Hill, “An American Experiment in Anarcho-Capitalism: The Not So Wild WildWest,” Journal of Libertarian Studies 3 (1979): 9-29.

20) Benson, The Enterprise of Law, pp.312-321.

21) Fuller, pp.124-125.

22) Benson, The Enterprise of Law, p.219.

23) Andrew Patner, “Arbitration Settles A Lot, Unsettles a Few,” The Wall Street Journal, April 13, 1990, p.B1.

24) Gustave de Molinari, The Production of Security, translated by J.H. McCulloch (New York: The Center for Libertarian Studies, 1977), p.14.

25) Ibid., p.15 (de Molinari's emphasis).

26) Randy E. Barnett, "Pursuing Justice in a Free Society: Part One - Power vs. Liberty,” Criminal Justice Ethics (Summer/ Fall 1985): 50-72; “Pursuing Justice in a Free Society: Part Two - Crime Prevention and the Legal Order,” ibid. (Winter/ Spring 1986): 30-53.

27) Rothbard, For A New Liberty, p.230.

28) Friedman, The Machinery of Freedom, p.127-128.

29) Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).

30) You will find several of these critiques conveniently gathered in one place; see Randy E. Barnett, "Whither Anarchy? Has Robert Nozick Justified the State? Joumal of Libertarian Studies 1 (Winter 1977): 15-21; Roy A. Childs, Jr., "The Invisible Hand Strikes BAck,” ibid.: 23-33; John T. Sanders, "The Free Market Model Versus Government: A Reply to Nozick,” ibid.: 35-44; and Murray N. Rothbard, "Robert Nozick and the Immaculate Conception of the State," ibid.: 45-57. For another series of articles triggered by Nozick's work, see George H. Smith's excellent mix of rights-theory and economics, "Justice Entrepreneurship in a free Market,”Journal of Libertarian Studies Vol.32, No.4 (19793: 405-426,and its accompanying commentaries.

31)Fuller, The Morality of Law.

32) Randy E. Barnett, "Towards a Theory of i egal Naturaiism.” Journal of Libertarian Studies Vol.2, No.2 (1978): 97-107.

33) Barnett, “Pursuing Justice in a Free Society: Part One -Power vs. Liberty;” Barnett, "Pursuing Justuce in a Free Society: Part Two - Crime and the Legal Order;" and Benson,The Enterprise of Law.

34) Gerald J. Postema, “Coordination and Convention at theFoundations of Law,” Journal of Legal Studies 11 (January 1982): 165-203.

35) Robert Sugden, The Economics of Rights, Cooperation and Welfare, (Oxford: Basil Blackwell Ltd, 1986).

36) William M. Landes and Richard A. Posner, "Adjudication as a Public Good,” Journal of Legal Studies 8 (March 1979): 235-284.

37) Benson, The Enterprise of Law, p.221,277-281 ,299-300.

38) The private production of money is often called "free banking.” For excellent works in free banking see Lawrence H. White, Free Banking in Britain: Theory, Experience, and Debate, 1800-1845(Cambridge: Cambridge University Press, 1984); George A. Selgin, The Theory of Free Banking: Money Supply Under Competitive Note Issue (Totowa, Nu:Rowman and Littlefield, 1988); and, as a general overview, Kurt Schuler, "Free Banking,” Humane Studies Review 6 (Fall, 1988), p.11.

39) Bruno Leoni, "The Law as the Claim of the Individual,” Archives for Philosophy of Law and Social Philosophy 40 (1964), p.58.

40) Of course you might have taken your dispute to the insurance company as soon as the dispute arose if your policy so allowed. Policies calling for such attention would of course cost more than those requiring you to make good fait hefforts to settle the dispute on your own.

41) Holding the tyrant's servants fully responsible is perhaps even more important, from a public choice point of view, than holding the tyrant responsible. The servants would realize that they cannot escape liability by hiding behind their uniforms, and would thus hesitate to take the tyrant's orders.