Law without the state - governance without government

A dialogue with ChatGPT

ihaphleas: When I talk about how the state is inherently aggressive and how all of its functions could be better done by the private sector, people often get hung up on things they consider to be public goods, such as roads, healthcare, or law and policing. Let's focus on law. Explain natural and polycentric law and how law can be created, maintained and enforced without a state. Give some historical examples too.

ChatGPT: Natural law and polycentric law are two concepts often discussed in libertarian and anarchist circles as alternatives to traditional state-centric legal systems.

1. Natural Law: Natural law is a theory that posits the existence of a set of universal principles inherent in nature, which govern human behavior and interactions. These principles are seen as discoverable through reason and observation rather than being arbitrarily created by human institutions like the state. According to natural law theory, laws should be based on objective moral principles, such as justice, fairness, and respect for individual rights. Advocates of natural law argue that these principles provide a solid foundation for creating just and effective legal systems.

2. Polycentric Law: Polycentric law is a legal system characterized by the presence of multiple, overlapping legal jurisdictions, each with its own set of laws and institutions. In a polycentric legal system, individuals are free to choose which legal systems they wish to be governed by, and competition between these systems helps to ensure efficiency, innovation, and responsiveness to the needs and preferences of individuals. Unlike traditional state legal systems, which are characterized by a monopoly on the use of force within a defined territory, polycentric legal systems are decentralized and based on voluntary interaction.

In a society organized according to natural and polycentric law, law can be created, maintained, and enforced through a variety of mechanisms:

- Customary Law: Customary law arises spontaneously through the interactions and agreements of individuals within a community. Over time, certain customs and practices become recognized as legal norms, which are enforced through social pressure and ostracism rather than through the coercive power of the state.

- Private Arbitration and Dispute Resolution: Instead of relying on government courts to resolve disputes, individuals and organizations can turn to private arbitration services and dispute resolution organizations to adjudicate conflicts and enforce contracts. These private dispute resolution mechanisms operate according to agreed-upon rules and procedures and are often more efficient, flexible, and responsive than government courts.

- Private Defense Agencies: Rather than relying on a government monopoly on the use of force for protection and security, individuals and communities can hire private defense agencies to protect their rights and property. These defense agencies compete with one another to provide the best possible protection services, leading to greater efficiency and innovation in the provision of security.

Historically, there have been several examples of societies that operated according to principles of natural and polycentric law:

- Medieval Iceland: During the Viking Age, Iceland was organized according to a system of polycentric law known as the Icelandic Commonwealth. In this system, disputes were resolved through private arbitration, and individuals were free to choose which legal system they wished to be governed by. Despite its decentralized nature, the Icelandic Commonwealth was remarkably stable and prosperous for several centuries.

- Medieval Ireland: Like Iceland, medieval Ireland was organized according to principles of polycentric law and customary legal practices. Clan leaders and local chieftains provided governance and dispute resolution services to their communities, and legal disputes were often resolved through arbitration and negotiation rather than through coercion.

These historical examples demonstrate that it is possible to create just and effective legal systems without relying on the coercive power of the state. By embracing principles of natural law and polycentric law, individuals and communities can enjoy greater freedom, prosperity, and security.

ihaphleas: Thanks. I am personally very interested in the law may arise from the nature of man and our existence together as beings of limited rationality and free-will (one might say a natural or existential philosophy of law), as opposed to a Hobbesian philosophy of law, but I see that many people are concerned with the practical matter of how disputes could be resolved without a central authority. Can you explain how polycentric law makes this possible, how law between two entities in different countries is already an example of polycentric law and how the impartiality of a government judge (chosen by the government instead of the two disagreeing parties) is hardly unquestionable?

ChatGPT: Certainly, let's delve deeper into how polycentric law addresses the practical concerns of resolving disputes without a central authority and why it can be a viable alternative to traditional state-based legal systems:

1. Polycentric Law and Dispute Resolution: In a polycentric legal system, dispute resolution occurs through voluntary interaction and competition among various legal service providers, such as arbitration agencies, private courts, and mediation services. These entities compete to attract clients by offering efficient, fair, and impartial dispute resolution services.

- Choice and Competition: Individuals and organizations are free to choose the legal service providers they prefer, based on factors such as reputation, expertise, cost, and procedural fairness. This freedom of choice incentivizes legal service providers to continually improve their services and ensures that individuals have access to a wide range of dispute resolution options.

- Impartiality and Fairness: Unlike government judges, who may be subject to political pressure or biases, private arbitrators and mediators operate independently of any central authority and are chosen by mutual agreement of the disputing parties. This helps to ensure the impartiality and fairness of the dispute resolution process, as both parties have a vested interest in selecting a neutral and competent third party to resolve their dispute.

- Enforcement of Decisions: In a polycentric legal system, the enforcement of legal decisions is typically based on voluntary compliance rather than coercion. Legal service providers may use reputation mechanisms, social pressure, and contractual arrangements to ensure that parties abide by the outcomes of dispute resolution processes. Additionally, individuals and organizations may voluntarily agree to adhere to the decisions of reputable arbitration agencies or private courts as a condition of doing business or participating in a particular community.

2. International Law as Polycentric Law: The interaction between entities in different countries provides a real-world example of polycentric law in action. International law is characterized by the absence of a central authority with the power to enforce legal norms across sovereign states. Instead, international law operates through a decentralized system of treaties, agreements, customary practices, and diplomatic negotiations.

- Pluralism and Diversity: International law reflects the diversity of legal traditions, cultures, and political systems around the world. States, international organizations, non-governmental organizations, and other actors contribute to the development and enforcement of international legal norms through various mechanisms, such as diplomatic negotiations, international courts and tribunals, and multilateral treaties.

- Enforcement Mechanisms: While international law lacks a centralized enforcement mechanism, states and other actors may voluntarily comply with international legal obligations for various reasons, including reputational concerns, economic incentives, and the desire to maintain stable international relations. Additionally, states may engage in collective action, such as sanctions or diplomatic pressure, to enforce compliance with international legal norms in cases of serious violations.

In summary, polycentric law offers a decentralized and voluntary approach to dispute resolution, grounded in principles of choice, competition, impartiality, and voluntary compliance. While traditional state-based legal systems rely on a central authority to resolve disputes and enforce legal decisions, polycentric legal systems empower individuals and organizations to seek justice through a diverse array of legal service providers and mechanisms. The example of international law further illustrates how legal order can emerge and function effectively in the absence of a central authority, relying instead on decentralized coordination, negotiation, and voluntary compliance.

ihaphleas: Huh, it seems that even with the so-called government monopoly on law private arbitration and security already exists -- I guess because they are often cheaper and more effective than government services.

This arbitration sounds okay when there are two parties to a dispute and they can agree on a judge. What happens in more extreme cases? What if one person refuses to agree on a judge? What if the case is one that would be called criminal in current law systems, such as a murder?

ChatGPT: In cases where parties cannot agree on a judge or when disputes involve criminal offenses, polycentric legal systems have mechanisms to address these challenges:

1. Arbitration in Disagreement: If parties cannot agree on a judge or arbitrator to resolve their dispute, there are several possible approaches:

- Mediation or Conciliation: Parties may choose to engage in mediation or conciliation facilitated by a neutral third party to help them reach a mutually acceptable resolution. Mediators assist parties in identifying common ground and negotiating a settlement without imposing a decision on the parties.

- Random Selection or Rotation: In cases where parties cannot agree on a specific judge or arbitrator, a neutral selection mechanism such as random selection or rotation may be used to appoint a decision-maker. This ensures impartiality and prevents one party from having undue influence over the selection process.

- Community Consensus: In close-knit communities, disputes may be resolved through community consensus-building processes, where members come together to discuss the issue and reach a collective decision based on shared values and norms.

2. Criminal Offenses and Restitution: In cases involving criminal offenses such as murder or assault, polycentric legal systems focus on restitution and compensation for victims rather than punitive measures imposed by the state. Here's how such cases might be addressed:

- Victim-Centered Justice: Polycentric legal systems prioritize the needs and rights of victims, seeking to restore them to their pre-injury state through restitution and compensation from the perpetrator. Victims may have a direct say in the resolution process and be involved in determining appropriate remedies.

- Restitution-Based Punishment: Rather than relying on incarceration or fines imposed by the state, offenders may be required to make restitution to their victims as a form of punishment. Restitution may take the form of monetary compensation, community service, or other forms of reparative justice aimed at restoring the harm caused by the offense.

- Community Involvement: Communities play a crucial role in addressing criminal offenses, providing support to victims, facilitating restitution agreements, and holding offenders accountable for their actions. Community-based justice systems focus on rehabilitation, reconciliation, and the restoration of social harmony rather than punitive measures.

It's important to note that polycentric legal systems prioritize voluntary interaction and consent, seeking to resolve disputes through peaceful means and mutual agreement rather than coercion. While addressing complex or contentious cases may require innovative approaches and community involvement, polycentric legal systems offer flexible and adaptable mechanisms for resolving disputes and administering justice in diverse contexts.

ihaphleas: I suppose if the two people can't agree on a judge, then at least their legal counsels could. Some people will say that there is no restitution possible for a crime such as a murder -- clearly, the main individual harmed is unable to receive restitution. Could it be possible for different law systems, one punishing murder with death and another focusing on restitution, to interact with one another through this system of polycentric law?

ChatGPT: Absolutely, the interaction between different legal systems within a polycentric framework can accommodate varying approaches to justice, including those focusing on restitution for crimes like murder.

Here's how different legal systems, each with its own approach to addressing murder, could interact within a polycentric legal framework:

1. Restitution-Based Justice System: In a legal system focused on restitution, the emphasis is on compensating the victim's family or heirs for the harm caused by the murder. This could involve financial compensation, community service, or other forms of reparative justice aimed at restoring the well-being of the victim's loved ones and the affected community.

2. Retributive Justice System: In contrast, a legal system emphasizing retribution or punishment for murder might prescribe penalties such as imprisonment, fines, or even capital punishment for the perpetrator. The aim here is not primarily to compensate the victim or their family but to exact a punishment proportionate to the severity of the crime.

Within a polycentric legal framework, these different legal systems could interact in several ways:

- Choice and Jurisdiction: Individuals may choose to subscribe to one legal system or another based on their personal beliefs, values, or preferences regarding justice. For instance, individuals who prioritize restitution and rehabilitation may opt for a legal system focused on those principles, while others may prefer a system that prioritizes retribution or deterrence.

- Conflict Resolution and Mediation: In cases where disputes arise between individuals subject to different legal systems, mediation or arbitration services could help facilitate resolution. These services may work to find common ground, negotiate agreements, or reconcile differences between conflicting legal norms.

- Recognition and Enforcement: Polycentric legal systems may establish mechanisms for recognizing and enforcing legal decisions made by other legal systems, even if those decisions are based on different principles or priorities. For instance, a restitution-based legal system might recognize a judgment of restitution issued by a retributive legal system and enforce it accordingly, provided certain conditions are met (e.g., procedural fairness, respect for basic rights).

By allowing individuals to choose the legal systems that best align with their values and preferences, and by facilitating cooperation and coordination between different legal systems, polycentric law can accommodate a wide range of approaches to justice while promoting peaceful resolution of disputes and mutual respect for diverse legal norms.

ihaphleas: Given that a lot of the practical problems of private law seem to be worked out in theory, and many of the solutions have and do exist in practice, what are some of the objections to a polycentric system of private law?

ChatGPT: While polycentric systems of private law offer several theoretical advantages and have historical and practical precedents, there are still some objections and challenges that critics may raise:

1. Consistency and Predictability: Critics argue that polycentric legal systems may lack uniformity and consistency in legal standards and outcomes, leading to confusion and uncertainty for individuals and businesses. Without a central authority to establish and enforce uniform legal norms, there may be discrepancies in how similar cases are decided and how legal rules are interpreted and applied.

2. Access to Justice: Some critics contend that polycentric legal systems could exacerbate inequalities in access to justice, particularly for marginalized or disadvantaged individuals who may lack the resources or knowledge to navigate multiple legal systems effectively. Without robust mechanisms for ensuring equal access to legal representation and dispute resolution services, there is a risk that certain groups may be disadvantaged in the legal process.

3. Enforcement and Compliance: Skeptics raise concerns about the enforceability and compliance of legal decisions in polycentric systems, particularly in cases where parties refuse to abide by arbitration awards or court judgments. Without a centralized enforcement mechanism or overarching legal authority, there may be challenges in compelling parties to comply with legal obligations and uphold their contractual commitments.

4. Arbitrariness and Abuse of Power: Critics caution that without sufficient oversight and accountability mechanisms, private arbitrators, judges, and enforcement agencies in polycentric legal systems may abuse their power or act arbitrarily, leading to unjust outcomes and violations of individual rights. Concerns about corruption, bias, and conflicts of interest may undermine confidence in the fairness and integrity of the legal process.

5. Public Goods and Externalities: Some critics argue that certain legal functions, such as the provision of public goods, protection of collective interests, and regulation of externalities, may be difficult to address within a purely polycentric framework. Without a central authority to coordinate collective action and address market failures, there may be gaps in the provision of essential services and inadequate responses to systemic risks and external threats.

6. Transition and Stability: Implementing a transition from existing state-based legal systems to polycentric alternatives may pose practical challenges and risks, including political resistance, legal uncertainty, and social instability. Critics question whether polycentric legal systems can effectively replace or supplement existing governmental institutions without causing disruption or exacerbating conflicts.

Overall, while polycentric systems of private law offer promising theoretical advantages and have demonstrated practical feasibility in certain contexts, addressing these objections and challenges will be essential for ensuring the effectiveness, legitimacy, and sustainability of alternative legal frameworks in complex and diverse societies.

ihaphleas: I could argue that many of those objections sound like descriptions of the status quo, but what are some counter-arguments for private polycentric law for each point?

ChatGPT: Certainly, here are some counter-arguments to the objections raised against private polycentric law:

1. Consistency and Predictability:

- Market Competition: In a polycentric legal system, legal service providers must compete for clients. This competition incentivizes providers to offer clear and consistent legal standards and outcomes to attract and retain clients, thus promoting predictability in the legal system.

- Customization: Individuals and businesses can choose legal service providers whose legal standards and procedures align with their preferences, promoting flexibility and customization in legal arrangements while still maintaining predictability within chosen legal frameworks.

2. Access to Justice:

- Market Innovation: Competition among legal service providers fosters innovation in the delivery of legal services, leading to the development of new and more accessible ways to access justice, such as online dispute resolution platforms, alternative fee arrangements, and pro bono legal services.

- Voluntary Associations: Communities and organizations may establish voluntary associations or mutual aid societies to provide support and assistance to individuals who require legal representation or dispute resolution services but lack the means to afford them.

3. Enforcement and Compliance:

- Reputation Mechanisms: In a polycentric legal system, legal service providers rely on their reputation for fairness, integrity, and effectiveness to attract clients and maintain credibility. Providers with a reputation for enforcing judgments and upholding contractual obligations will be preferred by clients, incentivizing compliance with legal decisions.

- Network Effects: Legal service providers may establish networks or alliances to coordinate enforcement efforts and ensure compliance with legal decisions across jurisdictions, leveraging the collective resources and influence of multiple providers to address non-compliance.

4. Arbitrariness and Abuse of Power:

- Market Discipline: Clients in a polycentric legal system have the freedom to choose their legal service providers based on factors such as reputation, track record, and adherence to principles of fairness and impartiality. Providers who act arbitrarily or abuse their power risk losing clients and damaging their reputation, thereby facing market consequences for their behavior.

- Competitive Oversight: Competition among legal service providers creates incentives for independent oversight bodies, professional associations, and consumer advocacy groups to monitor and regulate the conduct of legal professionals, mitigating the risk of abuses of power.

5. Public Goods and Externalities:

- Entrepreneurial Solutions: Private entrepreneurs and organizations have incentives to develop innovative solutions to address public goods provision, collective action problems, and externalities within a polycentric legal framework. Market-based mechanisms such as insurance, crowdfunding, and voluntary cooperation can facilitate the provision of public goods and the management of externalities without the need for centralized government intervention.

- Polycentric Governance Structures: Polycentric legal systems may facilitate the emergence of decentralized governance structures, such as contractual networks, federated associations, and community cooperatives, that enable collective decision-making and coordination to address common challenges and pursue shared goals.

6. Transition and Stability:

- Incremental Change: Transitioning to a polycentric legal system can occur gradually through incremental reforms and experimentation, allowing for adaptation and adjustment based on empirical evidence and feedback from stakeholders. This approach minimizes disruption and uncertainty while enabling the gradual evolution of alternative legal arrangements.

- Bottom-Up Innovation: Polycentric legal systems emerge from the bottom-up through voluntary interactions and spontaneous order, rather than top-down imposition by central authorities. This decentralized approach to legal development promotes stability and resilience by aligning legal norms and institutions with the evolving needs and preferences of individuals and communities over time.

Overall, proponents of private polycentric law argue that market-based mechanisms, competition, and voluntary cooperation can address many of the objections raised against traditional state-centric legal systems, leading to more efficient, innovative, and just outcomes in the provision of legal services and the administration of justice.

ihaphleas: What are some good places to read about polycentric law, including websites and books?

ChatGPT: There are several resources where you can learn more about polycentric law, including websites, books, and academic articles. Here are some suggestions:

Websites:

1. The Independent Institute: The Independent Institute publishes articles and research on a variety of topics related to free-market economics, including polycentric law and governance. Their website offers access to a range of publications and resources on the subject.

3. The Center for the Study of Innovative Freedom (C4SIF): C4SIF focuses on issues related to intellectual property, innovation, and decentralized governance. Their website features articles, blog posts, and research papers on polycentric law and legal theory.

Books:

1. "The Enterprise of Law: Justice Without the State" by Bruce L. Benson: This book examines the historical and theoretical foundations of polycentric law and explores the possibility of decentralized legal systems operating without government intervention.

2. "The Machinery of Freedom: Guide to a Radical Capitalism" by David D. Friedman: In this influential work, David D. Friedman explores the potential for market-based solutions to governance and legal order, including polycentric law and private arbitration.

3. "The Law" by Frédéric Bastiat: Although not specifically focused on polycentric law, Bastiat's classic work provides insights into the nature of law, justice, and government intervention, which are relevant to discussions on decentralized legal systems.

Academic Articles:

1. "Polycentric Law" by Tom W. Bell: This article provides an overview of polycentric law theory, discussing its historical roots, theoretical foundations, and practical implications.

2. "Anarchy and Efficient Law" by David D. Friedman: In this academic paper, Friedman explores the efficiency of polycentric legal systems compared to traditional state-centric legal systems, drawing on economic analysis and empirical evidence.

These resources should provide you with a solid foundation for exploring the theory, history, and practical implications of polycentric law and governance.

ihaphleas: For more see: The Jurisprudence Of Polycentric Law and Ulex Open Source Legal Operating System

Best,

ihaphleas