by Randy E. Barnett | an
excerpt from... Chapter Thirteen If power is to be used to address the compliance problem, some effective means must be found to constrain enforcement abuse. Adopting the liberal fusion of justice and the rule of law helps to constrain abuse to a degree by providing persons with some means to resist tyranny and a publicly-accessible conceptual limitation on power that serves as a warning that power is being abused. Standing alone, however, the concepts of justice and the rule of law are not sufficient to handle the problem of enforcement abuse because they are not self-enforcing. We also need an institutional structure that is able to ensure that justice and the rule of law will be respected. The approach I shall suggest tracks the tripartite scheme embodied in the United States Constitution by considering the legislative, executive, and judicial functions of a legal order as distinct. As was seen in Chapter 6, a common-law system of adjudication provides a decentralized method of discovering precepts of law that serve the interests of justice and provides an alternative to legislation. I shall now turn my attention to the judicial power-that is, the power to adjudicate disputes-and the executive power-that is, the power to execute or enforce the laws. The discussion at the end of Chapter 13 described three devices that classical liberals long have favored to constrain abuses of a coercive monopoly of power: elections, federalism or separations of power, and free emigration. These mechanisms reflect three complementary constitutional strategies for constraining power generally: reciprocity, checks and balances, and exit. In this chapter, I discuss ways that these principles may be more thoroughly realized in a "polycentric" [1] constitutional order that avoids a coercive monopoly of power. The term polycentric refers not just to a system with multiple nodes or "centers of decision,"[2] but to one in which each of the centers of decision needs to and is able to adjust to the decisions of the others.[3] Order is thereby achieved "spontaneously" - that is, by a decentralized process of mutual adjustment - rather than by centralized command. In a polycentric constitutional order, as distinct from a monocentric one, multiple legal systems exercise the judicial function and multiple law-enforcement agencies exercise the executive function. These multiple decision makers operate within constitutional constraints that permit them to co-exist and adjust to each other. The phrase legal or constitutional order is used here when speaking of the entire legal structure, and the phrase legal or court system when speaking of one court or other dispute resolution system within the larger constitutional order. just as the liberal conception of justice requires liseveral property" to handle the problems of knowledge and interest, a decentralized or polycentric constitutional order consisting of several legal systems and several law-enforcement agencies provides an institutional framework to address the problem of enforcement abuse. Although a polycentric constitutional order will initially appear to be a radical departure from our current arrangements, such an order will arise naturally if just two constitutional principles that depart from our current approach to law enforcement and adjudication are adopted-principles that are commonplace features of social arrangements outside the context of law enforcement and adjudication. These are the Nonconfiscation Principle and the Competition Principle. I define these constitutional principles as follows:
There are two questions facing anyone proposing fundamental reforms of the sort I have described in this book: how do we get there and, once there, how do we stay there? The Nonconfiscation Principle tells us how we arrive at a polycentric regime, while the Competition Principle tells us how we stay there. If citizens who are dissatisfied with existing agencies have the power to withhold their patronage from them and contract with new ones, then a polycentric order will eventually evolve. And having evolved, it will remain in place if the currently prevailing agencies cannot put their new competitors out of business by force.[4] Even if these two principles were implemented immediately, however, no changes in the current array of law enforcement and adjudicative agencies need be made. Though every existing agency would have to obtain revenue in a different manner than at present, each could continue to perform the same services that it currently does. Indeed, if current institutions are "natural monopolies"[5] as some allege, then no structural changes will occur. If, however, current arrangements are less than satisfactory to many consumers of their services, then effectuating these two principles will permit the evolution of a polycentric regime of law enforcement and adjudication with genuine reciprocity, checks and balances, and exit powers. I know on which of these eventualities I would bet. Let us now consider the implications of each of these constitutional principles in turn.
[1] See Michael Polanyi,
Logic of Liberty, (Chicago: University of Chicago Press, 1951), pp.
170-84 (defining and explaining the concept of polycentricity). This concept
was then imported into jurisprudence by F. A. Hayek and Lon Fuller. See
Hayek, Law and Liberty, vol. ii, p. 15; Fuller, "Forms and Limits,"
pp. 394-404. Both Hayek and Fuller were heavily influenced by Polanyi's
treatment of polycentricity, tacit knowledge, and spontaneous order and
this intellectual commonality helps account for the similarities in their
approaches. Return [2] See Hayek, Law and Liberty,
vol. ii, p. 15 ("The multiplicity of independent ends implies also a multiplicity
of independent centres of decision, and different types of society
are accordingly sometimes distinguished as monocentric and polycentric,")
(emphasis added). Return
[3] See Polanyi, Logic of Liberty,
p. 191 (a polycentric task is one that "requires the balancing of a large
number of variable items against all others."); Fuller, "Forms and Limits,
" pp. 39 7 (" [T] he more interacting centers there are, the more the
likelihood that one of them will be affected by a change in circumstances,
and, if the situation is polycentric, this change will communicate itself
after a complex pattern to other centers.").Return
[4] Only because he granted the "dominant
protection agency" a power to put competitors out of business by force,
was Robert Nozick able to argue that a minimal (monopoly) state could
evolve from a polycentric legal order without violating rights. See Robert
Nozick, Anarchy and Utopia, p. 88: "An independent might be prohibited
from privately exacting justice because his procedure is known to be too
risky and dangerous-that is, it involves a higher risk (than another procedure)
of punishing an innocent person or overpunishing a guilty one-or because
his procedure isn't known not to be risky". For responses to this argument
see Roy A. Childs, "The Invisible Hand Strikes Back," Journal of Libertarian
Studies, vol. 1 (1977), pp. 23-33, and Murray N. Rothbard, "Robert
Nozick and the Immaculate Conception of the State," Journal of Libertarian
Studies, vol. 1 (1977), pp. 45-57. Return
[5] The term "natural monopoly" has
come to have a specialized meaning to economists. See e.g. The New
Palgrave (London: Macmillan Press, 1987), p. 603 (defining natural
monopoly as an industry in which "the total costs of production are lower
when a single firm produces the entire industry output than when any collection
of two or more firms divide the total among themselves."). I am using
the term, however, in its popular sense of a monopoly that, for whatever
reason, arises naturally in a free market without aid of coercion. See
e.g. The McGraw-Hill Dictionary of Modern Economics (New York:
McGraw-Hill, 1983), pp. 315-16. Natural monopoly is defined there as:
"A natural condition that makes the optimum size of the firm so large
in relation to the market that there is room for only one firm. The crucial
criterion for the existence of a natural monopoly is that the market must
be sufficiently small so that it can be satisfied by a single firm which
is operating in an area of decreasing costs. It is not feasible for a
second firm to enter the industry because one firm alone could produce
the potential output of both firms at a lower total cost then the two
firms would incur. Therefore, an entering firm must seek to capture the
entire market through price-cutting techniques, and thus only one of the
two firms would survive". Ibid. Return
 
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