I recently read an enlightening essay by John Hasnas of Georgetown University. Originally published as a law review article, it is collected in Michael Malice’s The Anarchist Handbook. The abstract from another book in which it is collected is:
Commitment to the rule of law is one of the core values of a liberal legal system. This chapter begins with what is intended as an entertaining reprise of the main jurisprudential arguments designed to show that there is no such thing as a government of laws and not people and that the belief that there is constitutes a myth that serves to maintain the public’s support for society’s power structure. The chapter concludes by suggesting that the preservation of a truly free society requires liberating the law from state control to allow for the development of a market for law.
Hasnas argues that the concept of rule of law presumes that the law consists of a body of determinate rules which can be applied semi-mechanically to yield predictable outcomes. But this assumes the law is something like the axioms of a formal system, which it is not. In fact, the law is neither consistent nor complete, and any outcome based upon it will involve human judgement and weighing circumstances not specified in the statute or precedent. Further,
The current state-supplied legal system is adversarial in nature, putting the plaintiff or prosecution against the defendant in a winner-take-all, loser-get-nothing contest. The reason for this arrangement has absolutely nothing to do with the procedure’s effectiveness in settling disputes and everything to so with the medieval English kings’ desire to centralize power.
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Our current system of adversarial presentation to a third-party decisionmaker is an outgrowth of these early “public choice” considerations, not its ability to successfully provide mututally satisfactory resolutions to interpersonal disputes.
In imagining how a free market in dispute resolution might work, he suggests:
An individual might settle his or her disputes with neighbors according to voluntarily adopted homeowner rules and procedures, with co-workers according to the rules and procedures described in a collective bargaining agreement, with members of his or her religious congregation according to scriptural law and tribunal, with other drivers according to the processes agreed to in his or her automobile insurance contract, and with total strangers by selecting a dispute resolution company from the yellow pages of the phone book.
Here is ten minute interview with Prof. Hasnas in which describes his views.
