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Enterprise of Law: Justice Without the State, by Bruce Benson
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In the minds of many, the provision of justice and security has long been linked to the state. To ask whether non-state institutions could deliver those services on their own, without the aid of coercive taxation and a monopoly franchise, runs the risk of being branded as naive anarchism or dangerous radicalism. Defenders of the state’s monopoly on lawmaking and law enforcement typically assume that any alternative arrangement would favor the rich at the expense of the poor—or would lead to the collapse of social order and ignite a war. Questioning how well these beliefs hold up to scrutiny, this book offers a powerful rebuttal of the received view of the relationship between law and government. The book argues not only that the state is unnecessary for the establishment and enforcement of law, but also that non-state institutions would fight crime, resolve disputes, and render justice more effectively than the state, based on their stronger incentives.
- Sales Rank: #326773 in eBooks
- Published on: 2013-03-01
- Released on: 2013-03-01
- Format: Kindle eBook
Review
"Benson's book is an important contribution to law and economics literature. He properly emphasizes the role of institutions in shaping incentive and the role of incentives in shaping institutions." —Henry G. Manne, dean emeritus, School of Law, George Mason University
“In The Enterprise of Law, Bruce Benson provides us with the most comprehensive treatise on private sector alternatives to government law enforcement available today. Benson systematically addresses all the issues, arguments, and objections surrounding the growing role of market institutions in the legal system. But his book is more than a mere defense of current privatization trends in protective services, corrections, and dispute resolution. The Enterprise of Law questions the seemingly axiomatic proposition that law and order are “necessary functions of government.” —CATO Journal
“Benson's book, The Enterprise of Law, promises to do for privately produced law what [Lawrence] White's work did for free banking. Benson has produced a carefully researched and comprehensive introduction to polycentric law. It is sure to stimulate further work in the field. . . . . I suggest Benson's The Enterprise of Law as the best general overview of the field.” —Tom W. Bell, law professor, Chapman University
About the Author
Bruce L. Benson is the recipient of the Ludwig von Mises Prize and the Adam Smith Award, a senior fellow of the Independent Institute, and a contributing editor of the Independent Review. He is a professor of economics at Florida State University, has written numerous articles and reviews, and is the author of The Economic Anatomy of Drug War, Privatization in Criminal Justice, and To Serve and Protect. He lives in Tallahassee, Florida.
Most helpful customer reviews
8 of 8 people found the following review helpful.
Immensely important, a modern classic
By Michael J. Green
In his celebrated book, _Order Without Law_, Robert Ellickson criticizes law-and-economics theorists for "underappreciat[ing] the role that nonlegal systems play in achieving social order." One of the few exceptions he cites, along with law-and-economics luminaries Richard Posner and Harold Demsetz, is Bruce L. Benson. Ellickson refers specifically to Benson's significant journal article, "The Spontaneous Evolution of Commercial Law," which describes the system of social control that emerged from the medieval merchant community and which is largely still in effect today.
_The Enterprise of Law: Justice Without the State_ begins by expanding this study, documenting not just voluntary commercial law but the decentralized legal order of the Anglo-Saxons leading up to the Norman conquest. Benson traces the establishment of departments and bureaucratic procedures that remain to this day, providing context for things like the Magna Carta and the adoption of the jury system. Whereas Saxon law was focused on restitution to the victim, the influence of the Crown and the bureaucracy, acting in accordance with its institutional incentives, shifted the prevailing system to criminal law and crimes committed "against the King's peace." Punishment and enforcement transformed from restitution and forms of self-help to payment to the government and incarceration and the eventual creation of the professional police force. Benson follows this process carefully, step-by-step, until he has arrived at the modern conception of the common law, criminal law and public enforcement.
What sets this work apart from many other libertarian books is the consistent and exhaustive application of public choice analysis to the question of law creation and enforcement. Using the interest group theory of politics, Benson analyzes the incentives facing both the demand and the supply of these services. Benson cites his past work on police and judicial corruption, depicting it as a black market in property rights, made possible through prohibition - essentially, a black market for establishing black markets. As there are profits to be made selling narcotics illegally, there are profits to be made selling the exclusive right to peddle narcotics. A drug dealer pursues the former opportunity, and a corrupt cop the latter. Benson would later acknowledge the lack of normative considerations in this book, but that is what greatly distinguishes it from many other libertarian books exploring the same subject. The tone is consistently scholarly and levelheaded, not emotional or haughtily dismissive of elementary objections.
As he begins to explore the market alternative, Benson addresses the fundamental question identified by David Friedman and others: accepting the possibility of market failure, are we to ignore the potential for government failure? Indeed, Benson seems less interested in a positive case for market-generated law and more interested in the institutional reasons that the state inevitably fails to defend life, liberty and property. This makes sense, given the empirical data available for the latter and the mostly hypothetical character of the former. (he does deal with the state's contracting out to private companies, particularly the controversial private prisons, but this not the kind of privatization Benson has in mind). He stresses that the market provision of law and order would not be perfect, but may well be preferable to the status quo. This is particularly true for the poor, who are often presented as the reason for public provision. It is the poor and middle class who have the most to gain from a private, competitive form of dispute resolution, a contention supported by the history of community organizing and the growing demand for defensive goods like firearms and locks. Given the extraordinary delay of the courts and the abuse inflicted upon the victim by police and prosecutors, the 'free' judicial system is too expensive for most people to use.
Supplementing all of the above are lengthy lists of citations at the end of each chapter, treating the reader to the existence of several fascinating books and journal articles. As mentioned by another reviewer, Benson peppers the book with fascinating historical stories, from the corporatist character of the British penitentiary system circa 1780 to the vigilante groups of 1850s San Fransisco to contemporary anecdotes of prisoners and instances of community activism. Everything is carefully researched and cited for the reader's benefit. I have added several items to my reading list, all lifted from the endnotes.
As a whole, this is a very dense but readable 375 pages. The reader is sure to be surprised and challenged by the breadth of Professor Benson's argument. _The Enterprise of Law_ is a modern classic and deserves to be read by anyone interested in a freer, more orderly society.
5 of 5 people found the following review helpful.
Solving an alleged problem with a voluntary society
By John R. Boren
One of the most common objections to the idea of a voluntary, non-coercive, stateless society is phrased as a question that might go like this: Who will make the laws? How will we be protected against criminals? What if a merchant cheats me? Many people think that those questions make the idea of a voluntary society ridiculous. This book takes care of all that and more, and should be read by every person who already advocates voluntaryism but is weak in defending this aspect of it. Further, it should be read by every person who wants to reject the use of coercion to maintain "law and order" but doesn't see how it could be done.
40 of 40 people found the following review helpful.
If you enjoy reading about history, read this book!
By lenin@mypuke.com
Despite the impression one might draw from the other reviews here, this is not an overtly political tract. But some background on the author would be in order.
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.
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