BOOK REVIEW:

THE ENTERPRISE OF LAW

Full Context Vol. 12, No. 4 (March/April 2000)

Author:  Bruce L. Benson
Title:  The Enterprise of Law:  Justice without the State
Publisher: Pacific Research Institute for Public Policy
(San Francisco), 1991
397 pages, ISBN 0-936488-29-8.

One reason for this inconclusiveness is the hypothetical nature of much of the debate: discussions of the likely or unlikely behaviour of imaginary 'defence agencies' in societies which have never existed are hardly persuasive. It is therefore surprising that the debaters have not had more recourse to The Enterprise of Law by Bruce Benson<1>, a treatise packed with evidence about societies which have existed and defence agencies which currently do exist. Dr Benson mentions neither minarchists nor anarchists, yet his book bears directly on their debates.

Dr Benson's Introduction begins: "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 ... 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. Surveys and polls indicate growing dissatisfaction with all aspects of government law enforcement." and, in consequence, "privately produced crime detection, arbitration and mediation are growth industries in the United States." (1) It is thus time, asserts Dr Benson, "to question the presumption that law and order must be governmentally provided."(5)

Part I of The Enterprise of Law is devoted to showing that, in fact, "our modern reliance on government to make law and establish order is not the historical norm"(2). The historical norm was customary law which, spontaneously created and voluntarily obeyed, provided law and order in all early societies. Since customary law had precisely the same status and served the same purpose as the state-created law we take for granted today, the commonly-held belief that law and government develop together is mistaken.

As an illustration of a stateless, customary law society, Dr Benson refers us to the Kapauku of New Guinea, who were studied in depth by the anthropologist Leopold Popisil in the 1950s (15ff). The Kapauku had no government, yet enjoyed a prosperous and largely tranquil existence based on horticulture. All property was private, even strips of forest, and individual rights were clearly recognised. Personal protection was provided by kinship groups, and disputes were settled by prominent and wealthy men called tonowi. The tonowi had no authority. They maintainedtheir judicial role solely through respect garnered from wise decisions, effectively competing with one another. However, competition did not make the administration of justice haphazard or arbitrary. All legal proceedings followed well-established rituals and had to accord with memorised precedents.

The non-governmental legal system of the Kapauku was remarkably similar in its guiding principles to that of Anglo-Saxon England (21ff). Among the Anglo-Saxons, protection was provided by kindred or neighbourhood groups called "tithings" whose members had reciprocal agreements to help each other in times of trouble and to join the hue and cry in pursuit of thieves, murderers, etc. Groups of tithings formed a "hundred" in each of which was a "hundredsman,' a respected individual who was informed of wrongdoing and who organised the hue and cry; and a court presided over by a judicial committee drawn from the men of the tithings. There were separate shire courts for disputes between members of different hundreds.

Anglo-Saxon customary law was primarily concerned with protection of individuals and their property, and with restitution to victims, and/or their families, in the event laws were broken. Offences were treated as torts - wrongs to be righted by compensation - and there was an elaborate system of fines covering the appropriate payments for homicide, wounding, rape, indecent assault, theft, etc. Persons who refused to accept the judgement of the court were declared outlaws and could be killed and their property taken with impunity. This powerful sanction was sufficient to inspire acceptance of court rulings in most cases.

The Anglo-Saxon system was voluntary: no one was forced to join it nor taxed to pay for it. However, everyone was involved, and the system was respected and sustained, because customary law successfully provided both protection and arbitration at minimum cost. It evolved spontaneously, without state involvement, for the simple reason that there was no state.

Another commonplace of modern thought is that government is necessary to create a level playing field for trade and commerce. In point of fact, government involvement in commercial law is quite recent. The collapse of the Roman Empire after 400 AD virtually extinguished European commerce. When trade began to revive, a separate system of customary law arose spontaneously to facilitate local and international commerce (30ff). Merchants set up their own courts to resolve their disputes; effective procedures were copied; and gradually a common, entirely private and entirely objective Law Merchant spread, and was recognised, throughout Europe and beyond. All the basic principles of modern commercial law, national and international, are derived from the medieval Law Merchant.

The Law Merchant was also universally obeyed. Firstly, the judges were merchants themselves who were intimately familiar with the kind of cases they ruled upon: their judgements were sound. Secondly, no one would deal with a trader who refused to abide by the decision of a merchant court. The judges had no means to enforce their decisions, but the boycott sanction was so effective it removed any need for coercion. The Law Merchant thus "shatters the myth that government must define and enforce the 'rules of the game.'" (30)

Why, given the effectiveness of customary legal systems, asks Dr Benson, have nation-states taken on such a substantial role in the creation and enforcement of law? (36) To answer this, Dr Benson takes us back to the origins of kingship in Anglo-Saxon England. Kings were originally temporary war leaders. But because Anglo-Saxon England was in a virtually constant state of war, kingship gradually became a permanent institution. To support it, and to pay for war, kings needed money. Customary law fines were a very visible source, and Dr Benson shows how the British monarchy, particularly after the Norman conquest, and using a carrot and stick approach involving both inducement and force (coupled with the heavyweight backing of the Church) - though not without considerable resistance - gradually pushed its way into the fields of law-making and justice and slowly replaced Anglo-Saxon torts with 'crimes against the state' so that fines went to the crown, not to the victim.

The monetary objective of state involvement in law is shown most clearly by the royal legal invention of 'theftbote,' which made it a crime to settle an offence privately - and thus deprive the crown of its profits (62) - a concept still with us. In later centuries the crown also forced its way into commercial law (c. 1600 AD) and, finally, but not until the 19th century, took over policing as well.

For those who might dismiss customary law as ancient history, irrelevant to the modern world, Dr Benson draws attention to white settlement of the American West, in which customary law preceded state law, and which modern scholarship has shown to be much more peaceful than is usually thought: "some long-cherished notions about lawlessness, violence, and justice in the Old West are nothing more than myth." (312)

What emerges most clearly from Dr Benson's account is that the evolution of state involvement in law had nothing to do with lofty goals of promoting justice for all, preserving freedom, or protecting citizens: it was entirely concerned with raising money to pay the upkeep of the state, which in turn rested upon a royal imperative to wage war. War isn't just the health of the state, as Randolph Bourne observed; it is the state's raison d'être<2>.

Dr Benson's survey of the transition from customary to authoritarian law takes up less than a quarter of the book. In Part II, he examines the actual functioning of state provision of law and justice in the USA today. Using public choice analysis, he describes this as a 'political market.' In Part III, he examines resurgence of private policing and arbitration in the face of widespread failure by the state to provide either. Part IV looks at topics such as logical deficiencies in arguments for the state monopoly on law; and the corruption of state law enforcement officials, including judges: "organised crime cannot function without organised justice." (161) The study concludes (Part V) with speculation about an entirely private system of law in which Dr Benson echoes David Friedman's observation that "the most effective way to demonstrate that these things can be done privately is to do them." (344)

It is not possible in a short review to comment on all the challenging ideas and observations in The Enterprise of Law. Every section of the book is enlightening, supported by solid evidence, and closely reasoned.

Part II does seem especially important however, for here Dr Benson shows that state lawmaking invariably turns into a political process; one dominated by pressure groups and self-serving bureaucracies whose prime motivations diverge sharply from their ostensible purpose of protecting the public. The oft-lamented inefficiency, tardiness and callousness of state legal proceedings are shown to be, not accidental, but systemic.

The selfsame political process also creates powerful incentives and disincentives for law enforcement officials which either have little to do with justice, or work actively against it. For example, police success is measured by arrest rate. (131) This gives officers a strong incentive to focus on 'soft' targets such as vice and drugs - where arrests are numerous and easy (136) - and to avoid the vastly more important field of crime prevention, which yields no arrests at all.

Similarly, state attorneys are rewarded on the basis of successful prosecutions. This has led them to rely more and more on plea bargaining which, while often allowing villains to get off more lightly than their offences warrant, takes much less time and effort and hence produces the politically desirable or career-enhancing statistics more rapidly. (137ff)

Virtually all the incentives and disincentives driving the state legal system work against the original subject of law, the wronged victim, who has to "fend for himself every step of the way." (147)

Chapter 12 is a good illustration of the logical power of the book. It begins: "Two conflicting monopoly arguments are presented to justify state provision of police, courts, and law. First, a single law-and-order firm will naturally emerge to monopolize the entire industry, which means that this firm will be able to dictate citizens' behaviour. A benevolent government monopoly, therefore, is presumably necessary to preserve freedom. Second, there must be a single centralized authority of last resort (e.g., a supreme court) to prevent the development of the conflicting (competing) systems of law and the inefficient duplication of services that privatization would generate. If one argument is correct, then the other cannot be - privatized law and order either leads to a monopoly or to a competitive arrangement." (291) Dr Benson then proceeds to demonstrate that "neither argument is valid" but this review will not spoil the reader's pleasure by revealing how.

Problems with the book are few and minor. There is no bibliography, which makes chasing up references difficult. Rather, citations are given anew after each chapter. Since many sources are quoted frequently, this results in much needless repetition. At least 30 pages could have been cut from the book by a single set of notes and/or a bibliography.

Dr Benson also adopts the academic practice of referring to his peers as if they were household names: "Peltzman observed ... Hirshleifer pointed out." (91). Such references would be more persuasive with some personal information: e.g., 'Harvard sociologist Peltzman,' 'noted legal scholar Hirshleifer' (or whatever they may be); for when one does come across a reference such as "Lawrence Sherman, director of the Police Foundation" (134) the gentleman's position, and his achievement in reaching it, immediately lend weight to his quoted remarks.

The only other problems with the book are occasional lapses into jargon. When he is describing facts, or reasoning from facts, Dr Benson's writing is concise, and his meaning crisp and clear. However, as soon as he starts to explain fact by means of economic theory, clarity fades. Even after three readings this reviewer still has difficulty understanding "multivariate analysis reinforced the zero-order correlation results" (108) and a scattering of similar statements. As already noted, though, such minor inconveniences do not diminish the overall power and importance of the work<3>.

The implications of The Enterprise of Law are at least as intriguing as its content<4>. For example, the origins of the USA appear in quite a different light. The country did not spring fully formed from the brows of the Founding Fathers, but is rather the result of a gradual process of state creation which began with the Norman Conquest of England. Most of the governmental institutions and legal principles hallowed by the various US constitutions were devised long before 1776 or 1787: not by Jefferson or Madison, but by British monarchs, Parliaments and state-appointed judges; and not to secure liberty, but to preserve or extend state power. Unsurprisingly therefore, the growth of state power has continued as relentlessly in the New World as it did, and does, in the Old.

Other reinterpretations spring to mind. One is Ayn Rand's insistence on the importance of philosophical ideas in human history. For instance, she asserted that in the Middle Ages, "Wealth was not earned on an open market ... wealth was acquired by conquest" (For the New Intellectual [FNI] p. 13), and that "The prelude to the Renaissance was the return of Aristotle via Thomas Aquinas." (FNI, p. 23) But when one examines the medieval era more closely, it becomes plain that it was the recovery of trade and the spontaneous creation of the Law Merchant which was the prelude to the Renaissance. Private trade, protected by private law, created the wealth which generated the 'great rebirth.' It was rulers who acquired their wealth by conquest, not merchants. The merchants' wealth, and the Renaissance it led to, had much more to do with private law than with Aristotle.

Similarly, Rand maintained that the Industrial Revolution (IR) was the result of Aristotle's influence. (FNI, p. 23) In so far as it can be shown that science and conscious devotion to reason played a part in 18th century industry, her assertion may be partly true; although very indirectly, and although many historians and philosophers of science would dispute it.

In point of fact, however, the IR came about due to a happy accident. The Norman invaders of England had grabbed all the land, because at that time land was the prime source of wealth. Later, as trade grew more important, the Norman state moved to control and profit from this new form of wealth with regulation, tariffs and monopolies. Thus the IR did not begin in London, because trade in the capital was governed, and innovation stifled, by state regulation and state-sanctioned guilds (as it was all over Europe). The IR began rather in English villages like Birmingham, and in small towns like Manchester and Glasgow, because the tentacles of the growing British state had not yet reached them. Their factories created another new form of wealth, one unknown to the state, and hence not yet exploited by it. The cotton millers and metal bashers, and the nail makers made famous by Adam Smith, were not following Aristotle, they were simply free!

It is self-evident that philosophical and other ideas do influence history, but not always in the manner Rand thought. Human needs are constant, regardless what intellectuals may think or say, and the need for freedom is born again with each generation regardless what tyranny men may suffer under. What Dr Benson's book leads one to realise is that freedom under customary law is man's true natural condition. Here one can indeed quote Aristotle: "For men of pre-eminent virtue there is no law - they are themselves a law." (Politics 1284a13) Any study of stateless societies reveals the truth of that, for only in a genuinely stateless society is each individual truly sovereign. It is not until states and organised religions arise to curtail freedom<5> that the kind of intellectual influence Rand had in mind comes to the fore.

Locke's Treatises, for example, were written to defend individuals and their property against the growing power of the British state. But Locke's efforts would have been thought most curious by 10th century Anglo-Saxons, Medieval Irishmen and Icelanders, 16th century Iroquoians, or the 20th century Kapauku, for all of whom individual rights and private property were as natural and necessary as breathing, and for all of whom domination by a state lay in the future. Rand's evocative analysis of history using the symbols Attila and the Witch Doctor is fascinating and important, but its prime concern is with political and religious power. There are wide and equally vital areas of social, economic and legal history, and of anthropology, for which her analysis is not germane.

Rand also spoke of "the rise of Statism in the Roman Empire" (FNI, p. 23, her italics). In point of fact, the whole history of Rome is about the growth of a state, Rome was always statist. And it thrived, as states always have, on wealth taken by force from its citizens and neighbours. When that wealth ran out, the Roman state collapsed. But Roman concepts of state-imposed law and empire - whether copied from Ancient Greeks or homegrown - were preserved by the Roman Church, reinforced with the notion of Divine Right, then re-introduced when powerful warriors such as Charlemagne and William the Conqueror began to emulate their Roman predecessors.

What reflection on Dr Benson's book makes clear, is that modern Western political history consists of a series of re-runs of the history of Rome, on larger or smaller scales. The Roman state was reborn in various guises in the Middle Ages and later, and each modern clone has grown through exploitation of its citizens and neighbours in exactly the same manner as its ancient progenitor.

The genius of modern wealth creation has thus far outstripped state growth, so the fate of Rome is unlikely to be repeated soon (although it has been in the British and communist Russian empires). But if state power continues its present (domestic) acceleration, one can reasonably predict the collapse of the USA and other countries in the not-too-distant future. Like causes produce like events.

The Enterprise of Law is challenging reading for proponents of limited government. For when one has digested the historical facts that stateless societies were once the norm; that law and order, including commercial law, arose spontaneously without state involvement; that this customary law was clearly objective; and that the origin of states was war: it becomes difficult to maintain that the state's purpose is to protect rights; that only a state can create objective law; or that a state is essential.

Nicholas Dykes is a British-Canadian writer currently living in England. He has been an Objectivist since 1963 and is married with two teenaged children. He is the author of Fed up with Government? (1991), the manifesto for a putative British 'Libertarian Party;' A Tangled Web of Guesses (1996), a critical assessment of the philosophy of Karl Popper; Mrs Logic and the Law (1998), a critique of Ayn Rand's view of government; and Debunking Popper (1999), a critique of Karl Popper's Critical Rationalism, published in issue no. 24 of the US journal Reason Papers. He is currently working on a screenplay about the first political execution in Canada.

NOTES

<2>. Cf Franz Oppenheimer, The State: "The State ... is a social institution forced by a victorious group of men on a defeated group ... [for] no other purpose than the economic exploitation of the vanquished by the victors. No primitive State known to history originated in any other manner." (San Francisco: Fox and Wilkes, 1997), p.9.

<3>. All these problems have been eradicated in Dr Benson's later book, To Serve and Protect: Privatization and Community in Criminal Justice (New York: NYU Press, 1998) which amplifies Part III and other aspects of The Enterprise of Law. The later book also contains a fascinating account of the spontaneous emergence of customary law in Old West mining camps, pp. 102-7.

<4>. A more detailed examination of the ramifications of Dr Benson's ideas, and of other topics touched upon in this review, will be found in Nicholas Dykes, Mrs Logic and the Law: A Critique of Ayn Rand's View of Government, Philosophical Notes # 50 (London: Libertarian Alliance, 1998), available at https://home.nuug.no/~thomas/po/misslogic.html.

<5>. "There is nothing to take a man's freedom away from him, save other men." Ayn Rand, Anthem.

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