"Free the Law" and the Rule of Law Bryan Caplan September, 1991 Introduction The "State Conception of Law," as Professor Hasnas terms it, is so embedded in our thought that an attack upon it is likely to be mistaken as an attack on law itself. By defining the nature of the State Conception of Law, Hasnas has built the groundwork for a critical examination. He argues that there are three components essential to the State Conception of Law: "1. Criminal law is necessary for and serves to preserve an orderly, peaceful society. "2. Law must be made by the state. "3. Law consists of a body of definite rules which can be impartially administered by judges." Hasnas concludes that all three propositions are false. The State has no unique ability to make law because it has no unique ability to supply any good. Many legal orders have arisen largely or entirely apart from the State: the folklaw, the common law, the law merchant, and private adjudication being obvious examples. Criminal law, that is, law that defines "crimes against the State" above and beyond "crimes against individual victims" is, Hasnas argues, even less necessary. If convicted criminals could be forced to make some form of restitution to their victims, there would be no need to give the government special powers and resources to try and punish criminals. Restitution could both deter crime and undo the damage done to the innocent. Hasnas' denies that law is neutral and certain. He points out that many rulings have political motives behind them, and that severe inconsistencies can be found in the common law as well. But what does this have to do with the State Conception of Law? Hasnas would probably explain that if people believe that the "law" rules them, the State's authority will be more secure than if they realize that men rule them. Pious references to the "majesty of law" turn our eyes to the written constitutions and law books and away from the plain fact that men pass the law and men interpret it. How does his critique hold up? I believe that his conclusions are essentially correct. His clear statement of the State Conception of Law is especially valuable, because it provides an explicit analytical framework for questioning what is allegedly self-evident. This said, I think that two of his positions are incorrect and lend strength to the charge that a market-based legal system would be chaotic, capricious, and unjust. Hasnas' attack on the rule of law is particularly misguided. While he may be correct about current systems' deviations from the the ideal of the rule of law, that is no reason to abandon the ideal. I will take the opposite approach and argue that only a market-based legal order can be fully consistent with the rule of law. Equality before the law, neutrality, and certainty are the norms central to the ideal of the rule of law. But equality and neutrality do not exist when one party defines the law and judges his own case - and this is precisely what all state legal systems do. Similarly, legislation does not make the law more certain; it is legislation that has destroyed the certainty of the law by proclaiming supremacy over the common law. Second, Hasnas' sensible criticism of those libertarians who want to take over the state law monopoly unfortunately leads him to dismiss their fear that a plural legal order would generate an inconsistent hash of law codes punishing anything the customers were willing to pay for. This serious objection needs to be answered. To meet this need, I will discuss market checks on the development of authoritarian law, checks which are conspiciously absent in a state monopoly legal system. Law: Better Supplied by the Market Hasnas' most radical conclusion is that law would be better supplied by the market than by a state monopoly; in short, that we should "Free the law." To see the logic of this position, recall why it is that freely competetive production tends to be more efficient than tax-supported monopoly generally. First, private businesses must rely upon their customers' patronage to survive and prosper. If they do so well, they earn profits; if they do poorly, they suffer losses. Equally important is the fact that customers in the market can always decide to turn to a competitor if they are unsatisfied, and that anyone may legally compete. In contrast, a tax-supported monopoly does not depend upon customer satisfaction; it can prosper regardless of how well it does its job, so customers must rely on the monopolist's charity. Finally, governments typically make it illegal to compete with them, depriving customers of their most effective recourse against low quality and high prices.1 What distinguishes law from other valuable goods? "Law" has been defined by Lon Fuller as "the enterprise of subjecting human conduct to the governance of rules."2 What is interesting about this definition is that it stresses that law is not an indivisible good, but an enterprise, an activity which can be done well or poorly, and accomplished in a variety of ways. Law could also be described as the means by which theories of proper social norms are actualized and made concrete. Even if one has a perfect political philosophy, it is still be necessary to somehow make it real, to make it permeate social interaction. On top of this, political philosophy can be quite abstract, so there must be some way to translate abstract ideas into concrete reality, to define what those norms imply amidst the complex details of the real world. In sum, every political philosophy needs some kind of legal order to bring it into the real world and fit it to social complexities. A classical liberal would believe that a legal order was operating well if it protected individual liberty effectively, defined property rights precisely, and secured justice for the victims of torts and crimes. The law should have long-run stability, but be flexible enough to adapt to gradual changes in technology and types of property. Given this view of what law should accomplish, there are strong reasons to select a market-based legal system to achieve these desirable ends. Law could be left to emerge spontaneously from the rulings of judges who would adjudicate disputes between individuals. Since judges' services would be freely competitive, they would have an incentive to provide swift, honest, and intelligent rulings. Their authority would be limited to individual cases and bound by precedent, giving the system long-run stability. The meter of profit-and-loss would lead them to swiftly fill in the gaps in the law that arise alongside new technologies and kinds of property. A monopoly legal system based upon legislation will not go bankrupt no matter how poorly it does. Its centralized character makes the law readily malleable, destroying the long-run stability of the law, even while the lack of competition leaves it without an incentive to fill legal vacuums that may accompany institutional change. It is clear that the existence of a large body of law is in a sense a "public good." But so is language. We all benefit when we have a common language, and no one individual has an incentive to invent a new language and teach it to everyone. But just because language, conceived as a final product, is a public good, show that it must be monopolized by the state? Not at all - there is the "spontaneous order" alternative, where individuals take each of the tiny steps towards the production of the public good out of self- interest. Each individual benefits if he learns to communicate with his neighbors, by copying their vocabulary and grammar. The development of language can begin at a primitive level in local communities, and gradually blossom into the method of communication of an advanced international civilization. If one looks at the final product of individuals' efforts to talk to each other, it seems that language is a public good that must be supplied by the state. But the process whereby language emerges can result from private choices. Law can and has developed in the same manner; what is unique about the privatization solution is that the spontaneous evolution of law would be given free rein. We can see this process in many early societies like the Germanic tribes with their folklaw. Individuals with disputes, driven by the desire to avoid violence, would bring their case before one of many competing judges and agree to be bound by his decision. Over time, judges accumulated a body of precedents and procedures, gradually making the law more certain, until the primary task of judges was simply to extend legal principles to changing institutions. Harold Berman explains that, "In this type of legal order, law is not something that is consciously made and remade by central authorities; there may be occasional legislation, but for the most part law is something that grows out of the patterns and norms of behavior, the folkways and the mores, of the community."3 Naturally, a modern market-based law system would be much more sophisticated than the folklaw, just as modern German is more sophisticated than early German. But the fact that a body of law could arise spontaneously, driven by the desire of individuals to peacefully resolve disputes, remains constant. Criminal Law: Unnecessary, Unjust Hasnas' second plea is for the abolition of criminal law. Crimes such as murder, robbery, and assault would no longer be defined as "crimes against the state" and remedied by imprisoning convicted criminals. Instead, the law would focus only on the victim of the crime, requiring criminals to make restitution. The victim, not the state, would have an enforceable claim against the offender. Criminal offenses would be handled like other private disputes, except that criminal offenders, due to their untrustworthy character, might be monitored or confined in ways that ordinary debtors could not be. Hasnas rejection of criminal law seems entirely reasonable. If the victim has been wronged, why shouldn't the victim be compensated? As painful as it is to put a price on heinous crimes, it is far worse to give the victim nothing at all. The way the law separates criminal from civil offenses is especially absurd. Supposedly, a tort harms an individual, but a crime harms society. As one textbook puts it, "In torts, the harm is private, whereas with crimes the harm is public... When we distinguished public and private goods in an earlier chapter, we used peace and security as an example of a public good: there is little rivalry among citizens for the enjoyment of peace and security, and it is costly to exclude non-paying citizens from enjoying this good. A crime, then, harms the public, which often involves a threat to peace and security, which is a public good."4 The errors of this holistic thinking become apparent if you ask: Does it matter to individuals whether they personally are the victims of a crime? Obviously it does. Can an individual take actions to protect himself from crime? Obviously he can. "Peace and security" are just as much private goods as "nourishment and health," linguistic illusions notwithstanding. The only aspect of maintaining peace and security that is a public good is prosecution. But the reason it is a public good is precisely that the victim of a crime cannot receive compensation if he prosecutes. Imagine if the winners in civil cases had to turn their payments over to the state. In this case, deterring negligence would become a public good! In neither case is the good inherently public. Its "publicness" is man-made, or more precisely state- made.5 The public goods problem is not an argument for, but the result of, criminal law. Restitution is clearly better for the victim of a crime. He or she would have an enforceable claim for damages against the criminal, as the victims of a civil wrong do today. At the same time, amazing as it may seem, the criminal would be better off too. Why? As Cooter and Ulen succinctly put it, "Compensation in civil law aims to make the victim whole at the expense of the injurer. Punishment in criminal law makes the injurer worse off without directly benefiting the victim."6 Restitution would injure the criminal as a means to the end of compensating the victim; punishment injures the criminal as an end in itself. Criminals and their victims would have a common interest in seeing restitution done as speedily as possible. Free-market prisons hired to insure that the criminal worked would have an incentive to protect criminals from each other, keep physical mistreatment to a minimum, and provide adequate food, shelter, and medical care. If the investment were profitable, jails might give free job training to inmates in order to increase their income stream - a benefit that the criminals would of course retain once they had fulfilled their responsibility to their victim. It remains an open question whether victims who desired pure punishment could demand it instead of restitution. There are some cases where it seems difficult to believe that restitution would be feasible - murderers, for example, might be so dangerous that it would not be profitable to extract restitution from them. Could the damages awarded for intentional harm exceed those for a comparable tort? Could wealthy criminals be forced to pay extra compensation? These questions deserve further attention. What does seem clear is that restitution, not punishment, should be the norm in any fair and effective criminal justice system, and that the recipient of that restitution should be the victim. State Law: A Legitimation Device Hasnas denies that law is neutral and impartial. It is not like Euclidian geometry, where conclusions can be deduced from premises, and every other conclusion is impossible. Instead, law builds on inconsistent premises. Legal "reasoning" means finding the premises that imply the result you like. When confronted with a legal argument, Hasnas frequently said that, "Your reasoning is correct, but there are other sets of premises that yield the opposite result." If Hasnas is correct, why would the state use law at all? Why do lawyers argue about the law if it is only a cynical game? Hasnas believes that the myth that we are ruled by law makes the rule by men more bearable. The State uses the law as a legitimation device, to make its authority seem impersonal and fair when it is actually neither. Later I will challenge Hasnas' claim that all law must and should be indeterminate. For now, I want to defend and elaborate on his perceptive claim that state law is a legitimation device, not a system of neutral deduction from abstract premises. The State's need for legitimacy has long been a theme in classical liberal writings from la Boetie to Mises. Since the ruling elite is always a tiny minority, it could not possibly use the fear of punishment alone to extract obedience. While a small number of dissidents can be suppressed or ignored, it is vital that most people to support the State voluntarily if it is to survive. In principle a government could rely entirely upon its subjects' personal moral beliefs in order to win this vital voluntary support. But its power would be much greater if the decision of the State were believed to be a good justification in itself. As Tom Tyler outlines the problem in Why People Obey the Law, "From the perspective of the authorities in a political or legal system, legitimacy is a far more stable base on which to rest compliance than personal or group morality, for the scope of legitimate authority is much more flexible. It rests on the conception of obligation to obey any commands an authority issues so long as that authority is acting within appropriate limits...Unlike legitimacy, personal morality is double-edged. It may accord with the dictates of authorities and as a result help to promote compliance with the law, but on the other hand it may lead to resisting the law and legal authorities."7 It would be hard to convince people that a particular politician deserved unflinching support. It is easier to convince them that an impersonal abstraction like "the law" deserves this kind of loyalty. Despite the fact that most people respect the "law" more than they respect individual law-makers, it is law-makers who make the law and are free to change it. Legislation is no better than the legislators who pass it. Yet the idea of "law" obscures this basic fact and thereby bolsters a government's legitimacy. Bad Reasons to "Free the Law": "The Rule of Law Has Never Existed and We Wouldn't Want it Anyway" Hasnas has said that denying the third proposition amounts to an attack on the rule of law, one of the central themes in the classical liberal tradition. His modest claim is that existing legal systems do not measure up to this ideal. While interesting, no basic questions hinge on this issue. If proven, this might lead the defender of the rule of law to re-double his efforts. This is where Hasnas' bolder claim comes in: We wouldn't want the rule of law even if we could have it. It is too inflexible, unable to resolve conflicts between law and fairness. People have different values and different views of the purpose of law; only an "indeterminate" law can cope with these tensions. To understand what is at stake here, let us review the central components of the rule of law. An excellent place to start is A.V. Dicey's classic, Introduction to the Law of the Constitution. First, enforceable claims must be defined by law, not arbitrary power. The law is certain over the long-run, not a string of unpredictable decrees. Dicey says the rule of law implies "the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government."8 Second, the rule of law requires equality before the law. No human, regardless of governmental status, wealth, race, or any other factor can be above the law, or, for that matter, below the law. Repeatedly, Dicey emphasizes that the rule of law means a legal system based upon neutrality and equality before the law, and contrasted the certainty of the rule of law with the arbitrariness of administrative law. Bruno Leoni elaborated on the relationship between certainty of the law and the rule of law, distinguishing two ways that the law may be certain. Short-run certainty of the law exists when one can ascertain the precise meaning of the law at any given instant, even though the future content of the law may be completely unknowable. Long-run certainty of the law, in contrast, means that the law is stable and knowable over time. As Leoni explains, "the certainty of the law has been conceived in two different and, in the last analysis, even incompatible ways: first, as the precision of a written text emanating from legislators, and secondly, as the possibility open to individuals of making long-run plans on the basis of a series of rules spontaneously adopted by people in common and eventually ascertained by judges through centuries and generations."9 The core components of the rule of law, then, are equality before the law, neutrality, and certainty. The rule of law is a normative ideal for what the law should be, not a description of the law that is. At the same time, Anglo-American law has often been assumed to fulfill this ideal. It is this assumption that Hasnas initially challenged, butressed by a long line of Legal Realist and Critical Legal Studies thinkers. For them, despite the pretentions of judges and law professors, the law is actually "radically indeterminate." Not only does it fall short of the ideal of the rule of law; it in no way resembles it. While the apparent form of the law is deductive, it is possible to reach any conclusion because the law embraces a set of inconsistent premises. According to Richard Michael Fischl, indeterminacy means that "for every 'rule' there is a counter-rule, an exception, or some other lawyerly gambit available to put the legal question in equipoise."10 Fischl sees CLS as a decendent of Legal Realism, which argued that "judges would invariably decide those [legal] questions on the basis of their own unstated (and often subconscious) psychological, sociological, and economic assumptions, and then rationalize their decisions by invoking legal rules and principles."11 Two questions arise. One: is law radically indeterminate, in total violation of the rule of law? Two: ought law be radically indeterminate, leading us to reject the rule of law as an ideal? Radically indeterminancy is plausible for constitutional law. Lino Graglia - ideologically opposed to CLS in every way - defends a view similar to theirs: "The first and most important thing to know about constitutional law is that it has nothing to do with the Constitution. This can be seen, by anyone willing to see, from the simple fact that the vast bulk of the Court's rulings of unconstitutionality concerns state, not federal, law, and nearly all of the rulings purport to be based on a single constitutional provision - one sentence of the fourteenth amendment, and specifically upon four words: 'due process' and 'equal protection.' It is clear to everyone, I trust, that the Justices do not reach their decisions on enormously difficult and complex issues of social policy by studying those four words."12 And, if constitutional law isn't based on the written constitution, what is its origin? "It happens that the political ideology advanced by the Supreme Court's so-called constitutional decisions is also the ideology of the vast majority of professors of constitutional law in the law schools and political science departments...They labor to convince their fellow citizens that the unwanted and harmful policies imposed on them by the Court are not the result of a simple abuse of power by the Justices, but are somehow the result of the Constitution, a sacred and mysterious doctrine the consequences of which are beyond the understanding and control of the ordinary person."13 Let us leave aside the pallatable claim that constitutional law is wholely divorced from the ideal of the rule of law and turn to the common law. The common law has long been upheld as the best example of a truly rational and impartial legal corpus; witness Lord Coke's famous claim that, "Reason is the life of the law; nay, the common law itself is nothing else but reason." These strong claims make it an attractive target for those who believe that legal reasoning is blind ideology. In his lectures, Hasnas drew extensively on the inconsistencies that CLS scholars have located within the common law. There are the cases of Sherwood v. Walker14 and Wood v. Boynton15. Wood rules that a contract made in ignorance is enforceable. Sherwood rules that such a contract is void. Or take Davis & Co. v. Morgan16 and Schwartzreich v. Bauman-Basch, Inc.17 Davis rules that an offer to improve the terms of a pre-existing agreement is a naked promise, while Schwartzreich rules that such an offer is a new and enforceable contract. But are these imperfections marginal aberations, or are they the essence of the common law? If you compare the inconsistencies in the common law to constitutional law, the answer becomes evident. In the common law, there are no dramatic reversals on par with Brown v. Board of Education18 or Roe v. Wade19. The common law does not overturn "Property is legitimate" in favor of "Property is theft." The indeterminacy in the common law concerns questions of detail, not fundamentals. Any legal system in the complex world will have vague borderlines. But just because we cannot precisely measure the instant of death, is it always "indeterminate" whether a given human is dead or alive? Far more plausible is the following explanation by Richard Epstein, which is worth quoting at length: Take a given body of law and look at the classic treatise on the subject. You will probably note that there are several thousand cases, all of which desperately try to adjust very difficult concepts at the margin. The stuff appears to be utterly incoherent... This, I think, involves a certain kind of error, which is to assume that the appellate cases are a representative sample of the cases decided under the rule in question. One nice illustration of this error and its consequences derives from the decline of the old tort law of employer's liability and its replacement with the more modern law of workers' compensation. One of the standard arguments for workers' compensation insists that we look at a classic treatise on the subject...Under assumption of risk, you will find ten thousand cases which shows that nobody knows the meaning of the phrase or the scope of the defense. What we ought to do, it might be concluded, is to replace this defense with a simpler conception...Indeed, one could look at virtually all the cases of the day found in the standard treatises and conclude that they would be covered under the proposed workers' compensation rule. So your problems are going to disappear. Wrong...The moment you start to change the legal rule as a simple descriptive manner, the cases that are going to be drawn into trial and appellate courts will differ systematically from those that were litigated previously...Workers' compensation puts the line of demarcation in one place, employers' liability with assumption of risk puts the line in another place...So if you wait fifty years after the implementation of the reform...you will find that there are three volumes of roughly comparable length which deal with the question of whether or not certain kinds of accidents arise out of and in the course of employment.20 One can, therefore, freely concede that some decisions in the common law are unclear or "indeterminate" without conceding that it violates the rule of law. From hundreds of years of case law, any law professor can pick out internal contradictions. But this is a grossly biased sample because it ignores the bulk of cases where everyone knows what the decision will be. Even surveying all cases overstates the extent of indeterminancy, because often the clearest disputes will be settled out of court since both sides foresee a trial's outcome. If one applies abstract principles to the world with all its complex details, there will be occasional difficulties. But this is not a good reason to abandon reason in favor of unguided passion, like CLS would have us do. Let us turn to Hasnas stronger claim, that the rule of law would not be desirable even if it were possible. If positive law had to conform to the rule of law, he alleges that the law would be too rigid. There would be no way to resolve the tension between law and fairness. Unfortunately Hasnas intermingles his attack on the rule of law with his attack upon state monopoly supply of law, but part of his argument attacks the rule of law in any legal order. I see little merit in these complaints about the rule of law, with its insistence upon equality before the law, neutrality, and certainty. Even if we concede that "flexibility" and "indeterminancy" make more room for considerations of justice, they also open the door to the worst kinds of injustice - racial discrimination, favoritism, and so on. But we should not concede even this much. Equality before the law and neutrality are vital components to any reasonable concept of justice. Equality before the law means that the law cannot divide humanity up into different castes with different rights. All differences in treatment must be created by the individual for himself; in principle any person who took the same actions would receive the same treatment. Neutrality means that judgments must be based upon the facts of the case, not the emotions of the judge. It means, in the words of Sergeant Joe Friday, "Just the facts." Any deviation from neutrality means the introduction of bias, which can hardly be reconciled with the view that a strict rule of law hinders the pursuit of justice. Most Western nations have sharply de-emphasized the ideal of the rule of law, but none have entirely purged themselves of the ideal. Totalitarian governments went further, aiming to extinguish every remnant of the rule of law. The course of the betrayal of the rule of law in Nazi Germany has been amply documented in Hitler's Justice by Ingo MŸller. Individuals "not of German blood" were denied the right to marry those "of German blood" and existing mixed marriages were ruled null and void. Impossibly vague acts such as "dishonor to the race" became criminal. This spine-chilling passage from a decision of the German Supreme Court is one of the most explicit rejections of equality before the law ever written: "The earlier (liberal) view of personal rights made no fundamental distinction among human beings on the basis of sameness or difference in blood... According to the National Socialist world view, however, only individuals of German heritage (and those placed on equal legal footing with them) should be treated as persons with full legal rights within the German Reich."21 Predictably, Germany's law professors climbed over each other to urge on these decisions. Gone was the "formal, rationalistic" law of the era of liberalism. The law was "not to be arrived at by logical reasoning alone..." wrote Professor Heinrich Lange, "but instead was to be felt and experienced by a member of the Volk by virtue of his close ties with it."22 The law's certainty disappeared while Germany's top legal thinkers praised this great "advance" over the outdated rule of law. Quoting MŸller, "laws ought to be formulated purposely in vague and fuzzy wording: 'General provisos, admission of analogy, recognition of healthy popular feeling as a source of law, and admission of direct and immediate recognition of what is just...are criteria of National Socialist criminal law."23 Good Reasons to "Free the Law": State Law Violates the Rule of Law The Nazi legal system is an extreme example, but often extreme examples best illustrate a principle. The principle is that the rule of law is a vital component of a free society, and that every deviation from that principle leads down the road to serfdom. Hasnas' attack on the rule of law strengthens the false claim that only a state monopoly can supply good law. Hasnas should have shown how a market-based legal order could operate in a manner consistent with the rule of law - and how plural legal systems throughout history have done so. There is another side to this issue. I question the assumption that state law could, in principle, conform to the rule of law. State law can never be neutral, because the state judges its own case; can never give equality before the law, because one class of humans - legislators and state-appointed judges - have special law-making powers denied to the rest of mankind; and can never be certain because legislation is always amenable to unprincipled, politically motivated changes. Harold Berman has observed that developments in modern law "threaten the objectivity of law, since they make the state an invisible party to most legal proceedings between individuals or corporate entities - the same state that enacted the applicable law and appointed the court."24 This charge seems entirely reasonable. But then the question arises, "How could any legal system run by a state monopoly escape this charge?" The answer is that it cannot - for so long as one organization makes the law and decides if it has been violated the law is biased. And even if the State were perfectly neutral in judging legal disputes between itself and private citizens, what does it matter if someone impartially applies rules to cases if the same person creates those rules in the first place? Anemic "neutrality" of this kind cannot be reconciled with the rule of law. Neither can equality before the law exist in a state monopoly legal system. Why? A state monopoly divides humanity into two artificial classes: the rulers with the sole power to make law, and the ruled who must obey this law. To be sure, all societies have legal experts with unusual influence upon the law. But in a market- based legal system, all qualified people may participate, not just state employees. Quoting Bruno Leoni, "the appointment of judges is not such a special problem as would be, for example, that of 'appointing' physicists or doctors or other kinds of learned and experienced people."25 Equality before the law truly exists only when the law makes no artificial, unearned distinctions, including the state's monopoly over the law. Legislation is the primary enemy of the certainty of the law, especially long-run certainty. Legislation can concern nearly anything, and its historical pattern has been endless proliferation. And the substance of legislation can and does change frequently and sharply. The common law, in contrast, changes gradually. Its scope is severely limited because it concerns itself only with private wrongs. A system of common law evolves only slowly. But it creates a framework in which non-legal forces can do their best to deal with change. In such a framework, Richard Epstein explains, "The rules of the game have been worked out with sufficient clarity that the private parties can take these changes into account in the way in which they manipulate the rights in self and other things (protected by the law of torts) through voluntary exchanges (sanctioned by the law of contracts)."26 In a word, a stable body of judge-made law makes it easier for private actors to change the world without changing the law. Legislation not only fails to provide such a framework, but is so erratic that the law itself becomes the primary type of change to which individuals must adjust. The state law monopoly, then, not a plural legal system, should be criticized for its deviations from the rule of law. Lysander Spooner summed things up well when he wrote that "All legislation whatsoever is an absurdity, a usurpation, and a crime."27 Bad Reasons to "Free the Law": Imposing Libertarian Law is Legislating Morality One objection to Hasnas' proposal to "free the law" is that it would lead to a chaotic tangle of law codes, each defining "crime" as desired by the highest bidder. The nightmare scenario envisions fundamentalist Christian law providing for the stoning of "witches" and Marxist law prohibiting the "extraction of surplus value." These fears are plausible, and one would think that Hasnas would try to address them head on. Unfortunately, he does not. He only replied that the critics want to "legislate morality," to impose libertarian law upon everyone. In effect, Hasnas says that there is something authoritarian about this aim. Like all morally skeptical positions, this claim makes little sense no matter how you turn it. If the preference for a free society is completely subjective, why condemn the current state law monopoly? Why not just say that statists prefer a monopolistic system, and far be it from us to impose our moral views upon them? On the other hand, if there are strong reasons to favor a free society, reasons why everyone ought to support, is it not immoral to tolerate it if individuals who oppose a free society unite to combat it? These issues aside, Hasnas distorts the phrase "legislating morality" out of shape. Normally "legislating morality" means making laws intended to improve the moral character of those to whom it applies. Prohibiting the use of narcotics could be considered morality legislation if it aims to promote moral purity. But if one believed that these laws were necessary to maintain order, it should no longer be said that the law legislates morality. Their aim is to preserve order, not maintain individuals' virtue. Every law must purport to advance some worthy goal, i.e., must have some moral underpinning. But this does not mean that every law "legislates morality." In order to qualify, a law must also aim at improving the moral character of those that it defines as criminals. Otherwise, it would be pointless to criticize a law for legislating morality, since the natural reply would be, "So what? It's just like every other law." Good Reasons to "Free the Law": Market Law tends to Be Libertarian Since Hasnas accepts the premise that the law ought to be freed from the State, he needs to show that his system would be better than a state law monopoly. In particular, since he criticizes governments' legal systems as oppressive, he should give good reasons to think that his system would be less so. Given people's attitudes about what ought to be illegal, would we be more free with a state law monopoly or market-based law? There are strong reasons to think that whatever attitudes people have, a market-based system will produce results more consistent with human liberty than a state monopoly. Thinkers interested in this question - Bruno Leoni, David Friedman, and Murray Rothbard being the most prominent examples - point out strong reasons to think so. Leoni notes that a common law system is limited by the fact that a judge can only rule on particular cases, and that each case must be brought before him by the parties involved in the particular dispute. The law grows as judges decide individual cases with the guidance of precedent. Legislatures, in contrast, can pass laws directly and need not follow precedent. "The fact about legislation...is that regulations are enforced upon everybody, including those who never participated in the process of making the regulations and who may never have had notice of it. This fact distinguishes a statute from a decision handed down by a judge in a case brought before him by the parties. The decision may be enforced, but it is not enforced automatically, that is, without the collaboration of the parties concerned or at least one of them."28 Many laws exists today that people like enough to vote for, but not enough to pay for. David Friedman concludes that law will be much more libertarian when consumer demand rather than voting determines the outcome. "The legality of heroin will be determined, not by how many are for or against it but how high a cost each side is willing to bear in order to get its way...those on the receiving end...get a lot more pain out of the oppression than their oppressors get pleasure. They are willing to pay a much higher price to be left alone than anyone is willing to pay to push them around."29 Another point in the general spirit of Friedman is that laws against drugs, pornography, sex, and so forth are usually public goods. Everyone who likes such laws benefits if the law exists, so nobody in particular has an incentive to pay for such laws. On the other hand, each person persecuted has the incentive to pay for self- defense. Interestingly, this is a case where the public goods "problem" turns out to be a public goods solution - where individuals' incentive to "avoid paying their fair share" results in more liberal society. Finally, Murray Rothbard focuses on the "checks and balances" of the market. Judges would, he argues, have a strong incentive to maintain their reputation for honesty and impartiality. For if it became clear that one judge would always rule in favor of say, employers, or Germans, adjudication could no longer avert violent confrontation: "even those clients who may be criminally inclined will scarcely sponsor a court whose decisions are no longer taken seriously by the rest of society."30 Rothbard thinks that the market itself could handle the problem of "outlaw" suppliers of defense services, including the supply of law. And the market's method of handling this problem compares favorably to the governmental solution. Again quoting Rothbard, "There is a myth that the 'American System' provides a superb sets of 'checks and balances,' with the executive, the legislature, and the courts all balancing and checking against the other... But the American 'checks and balances' system is largely a fraud. For each one of these institutions is a coercive monopoly in its area, and all of them are part of one government, headed by one political party at any given time...Contrast these mythical checks and balances to the real checks and balances provided by the free market economy! What keeps A&P honest is the competition, actual and potential, of Safeway, Pioneer, and countless other grocery stores... What would keep the free-market judges and courts honest is the lively possibility of heading down the block or down the road to another judge or court if suspicion should descend upon any particular one."31 Leoni, Friedman, and Rothbard try to show that if we "free the law," a more free society generally will be the result. Each attacks the problem from different but complementary perspectives, allaying the reasonable fears of those who see chaos and injustice as the necessary outcomes of a market-based legal order. At the same time, they undermine the claim that order and justice will ever be forthcoming from government. For these reasons, it is vital for Hasnas to incorporate their insights into his thinking. Conclusion Professor Hasnas has a radical argument to make and does it well. His conclusions seem correct, and his evidence usually strong. Yet his work needs some fine-tuning, which I hope I have provided here. Specifically, I think that the main reason why someone would not want to free the law is that they believe that this implies chaos and injustice. How could the market provide a rule of law? Would not such a system be founded on brute force and cold cash? Hasnas' attack on the rule of law only serves to magnify these fears. The result is that his suggestions may be ignored. The proper strategy is to meet the problem head on. The law market has every incentive to give society a rule of law - a rule of law that no body of legislation has ever matched. No system can give one hundred percent guarantees, but given the attitudes in a society, a market-based legal system will probably yield more liberal results than a state law monopoly. One may then properly conclude, "Free the law? Why not?" -- and wait for a reply. Notes 1: Rothbard, Murray. Power and Market (Sheed Andrews and McMeel: Kansas City, 1977), pp.172-184. 2: Fuller, Lon. The Morality of Law (New Haven, Connecticut, 1964), p.106, quoted in Berman, Harold. Law and Revolution (Harvard University Press: Cambridge, 1983), p.4. 3: Berman, op. cit., p.82. 4: Cooter, Robert, and Ulen, Thomas. Law and Economics (HarperCollins: 1988), p.508. 5: Goldin, Kenneth, "Equal Access vs Selective Access: a Critique of Public Goods Theory," 29 Public Choice 53-71 (1977). 6: Cooter and Ulen, op. cit., p.510. 7: Tyler, Tom. Why People Obey the Law (Yale University Press: New Haven, 1990), pp.25-26. 8: Dicey, A.V. Introduction to the Law of the Constitution (St. Martin's Press: New York, 1961), p.202. 9: Leoni, Bruno. Freedom and the Law (D. Van Nostrand: Princeton, 1961), p.95. 10: Fischl, Richard Michael, "Some Realism About Critical Legal Studies," 41 University of Miami Law Review 513. 11: ibid, p.520. 12: Graglia, Lino A., "The Growth of National Judicial Power," 14 Nova Law Review 65 (1989). 13: ibid, pp.66-67. 14: 66 Mich. 568, 33 N.W. 919 (1887). 15: 64 Wis. 265, 25 N.W. 42 (1885). 16: 117 Ga. 504, 43 S.E. 732 (1903). 17: 231 N.Y. 196, 131 N.E. 887 (1921). 18: 347 U.S. 483 (1954). 19: 410 U.S. 113 (1973). 20: Epstein, Richard, "Positive and Normative Elements in Legal Education," 8 Harvard Journal of Law and Public Policy 258-259 (1985). 21: Muller, Ingo. Hitler's Justice (Harvard University Press: Cambridge, 1991), p.116. 22: Lange, Heinrich, "Generalklauseln und Neues Recht" 62 Juristische Wochenschrift 2859 (1933), quoted in MŸller, op. cit., p.73. 23: Freisler, Roland, "Der Wandel der politschen Grundanschauungen in Deutschland und sein Einfluss auf die Erneuerung von Strafrecht, Strafprozess und Strafvollzug" 27 Deutsche Justiz 231 (1935), quoted in Muller, op. cit., p.75. 24: Berman, op. cit., p.37. 25: Leoni, op. cit., p.183. 26: Epstein, Richard, "The Static Conception of the Common Law," 9 Journal of Legal Studies 255 (1980). 27: Spooner, Lysander, "Natural Law, or the Science of Justice," in The Collected Works of Lysander Spooner, (M&S Press: Weston, 1971), p.54. 28: Leoni, op. cit., p.107. 29: Friedman, David. The Machinery of Freedom (Open Court: La Salle, 1989), pp.127-128. 30: Rothbard, Murray. For a New Liberty (Libertarian Review Foundation: New York, 1985), p.235. 31: ibid, pp.235-236.