The Enterprise of Law: Justice Without the State [Paperback]

There are libertarians aplenty who believe we do. Some of them have actually thought carefully about the issue, and some of them are merely Objectivists who have accepted Ayn Rand's oracular dismissal of anarchocapitalism in her (thoroughly statist) essay on "The Nature of Government." Both of these groups will benefit from a reading of Bruce Benson's fine volume.

Benson picks up the argument where Murray Rothbard and David Friedman left it, and carries it forward by several miles. Here he provides a short history of market-based law, from its rise to its near-demise at the hands of "authoritarian" law; a public-choice analysis of the political market for law; an overview of recent trends toward reliance on private sources of law and justice; rebuttals of common arguments for the necessity of State law; and a short summary of what a private, non-State system of law might look like.

There are treats throughout. Some of my favorites are Benson's replies to Landes and Posner -- e.g. their argument that "private" law is parasitic on legal standards developed in the public sector, and their claim that such "private" law would be less efficient than public law. (In general I am of the opinion that Richard Posner is one of the most overrated legal thinkers of the past century or two.)

Benson is also exceptional among libertarian writers in his familiarity with the relevant legal literature. One of the other exceptions -- the altogether brilliant Randy Barnett (whose book _The Structure of Liberty_ belongs on your shelf next to this one) -- is credited by Benson for drawing the latter's attention to such literature and making some specific recommendations. The result, however achieved, is something all but unheard of in the libertarian world: a volume on liberty that actually acknowledges the existence of such legal theorists as Lon Fuller.

That's a nice feature in a book on law. I would like to see Benson's book (and its excellent sequel, _To Serve and Protect_) read by both libertarians and lawyers, and I'm happy he's written a book that the latter group won't toss away in disgust at the childish ignorance of the author. We have enough of those books already (and I think Rand wrote or influenced most of them).

In general, the more people that read this book, the better. If nothing else, this book will shake an assumption that badly needs shaking: that there must be a State in order for there to be law.

(By the way, you'll find Benson referring occasionally to George H. Smith's fine essay, "Justice Entrepreneurship in a Free Market." Originally published in the _Journal of Libertarian Studies_, that essay is reprinted in _Atheism, Ayn Rand, and Other Heresies_.)

Benson is an economics professor at Florida State. Generally, his research interests involve law enforcement, the drug war, private security alternatives, arbitration, and the history of arbitration and privately-produced commercial law (the law merchant). I have never seen a writing by him in which he explains all of his personal views and opinions, but he's obviously a pretty serious libertarian and he's had some involvement with the Quarterly Journal of Austrian Economics. Amazon discourages linking websites in reviews, but those interested could easily find his academic webpage by doing a google search for "Dr. Bruce L. Benson."

Benson is probably every bit the political extremist that I am, but this book doesn't really argue politics (mostly). It has a very fascinating history of the evolution of law in England, which forms the basis of modern American law, also. The presentation is mostly dry and academic, but the subject matter is completely fascinating, and Benson does a better job than any other writer in tying it all together to show the reader a picture of the historical origins of law, and the relationship between law and the state.

We have all been taught that the administration of law and justice is one of the purposes of government. Benson shows that this bit of conventional wisdom just doesn't fit the history. Courts and laws originated from communities and their customs, not from any governmental body. Benson shows that, historically, legal institutions precede the state, but monarchs eventually usurped most of the functions of privately-created law in order to raise revenue and concentrate power in the crown. Eventually, law becomes a government monopoly, and all throughout the process, the government has a strong tendency to corrupt the law into something other than a tool of justice.

There are a couple of different forms of private legal institutions that are important in this book. The earliest Benson explains are the customary English legal practices and the community institutions that made them work. These early legal institutions originated concepts and practices that are still echoed in today's modern courts, about 1000 years later. But this early approach to justice didn't really survive the constant encroachment by kings. Another source of private law has been the law merchant (lex mercatoria), a set of medieval laws that developed among purely private, profit-oriented traders. Like community-based law, the law merchant was a phenomenon that lacked a central authority or lawmaking body, and developed to protect people, in contrast to the king's courts which were created to concentrate power. The law merchant system developed as a private alternative to state law, and was successful because in comparison to state courts, it was fairer, faster, and better able to cope with the transnational nature of some of the disputes. Ultimately English common law courts ended up having to adopt most of the key features of the law merchant, because they risked being superseded and deprived of revenue and influence. An echo of the medieval law merchant lives on in the modern arbitration industry, which is actually extremely popular in America today, especially in the commercial world.

Not all of Benson's history focuses on England - the most entertaining part of the book concerns incidents in America in which citizens had to overthrow crooked lawmen and take justice into their own hands. (Most of these stories come from the old West.) This includes a very fascinating episode in San Francisco in which the entire law enforcement body was supplanted by vigilante justice. The result was a dramatic sustained drop in the murder rate, and an end to the corruption and abuse of the authorities. The reader will be surprised to find that, contrary to Hollywood, the "vigilante" groups were often moderate, judicious, and almost eager to relinquish power, in order to restore peace.

The book is not just about history. Benson makes a careful and convincing defense of the benefits of privately produced law and justice. He engages the arguments of some of the most important legal thinkers of our time, and picks their arguments apart. The decentralized, private justice of the past is not just a curiosity of history; it's a human achievement that lives on in some form today, and is considerably more fair and effective than the government monopoly we're subjected to.

If think today's legal system system is slow, inaccessible, expensive to work with, and unfair, read this book to find out why, and what the alternatives are.

I don't give 5 stars lightly. Yes, this book really is that good, and that important.

Then I read this book. With compelling historical evidence it shatters the myth that government must have a monopoly in administering law.

Well written. Clear. Thorough.