More material has been added to Cato Unbound since I first posted.
Michael Munger writes,
The danger to limited government, the threat to the Montesquieuan system of checks and balances, comes from an unexpected source. “Good government” types, people who want to improve the “efficiency” of government, are termites eating away at the walls that protect us from tyranny. And enormous damage has been done, in just the ways that de Jasay points out. But I am more hopeful than Anthony, perhaps because I see the first light of recognition in a lot of citizens’ eyes. The last thing you want is an efficient government. Our only choices are a truly weak, but efficient, limited government, or else a powerful government prevented by strong ties from using most of its powers, most of the time.
Some libertarians prefer a different legal structure, one that promises to work better than the structure provided by the Constitution. Such a structure would take the principles or strategies embodied in the Constitution farther than did the Framers. These principles are (1) reciprocity of power between the ruler and the ruled that is supposed to be accomplished by voting, (2) checks and balances on power that are supposed to result from federalism and separation of powers, and (3) the power of exit that is provided by free emigration and, formerly, the power of secession. These libertarians merely propose two itsy-bitsy, teeny-weenie changes to the status quo: First, end the government’s power to put its competitors out of business by force (which violates the freedom to contract of those who wish to provide and obtain such services); second, end the government’s power to confiscate its income by force (which violates the freedom from contract of those whose property is taken without their consent). Not much really.
What these libertarians hope and expect would result from these two changes is the evolution of a polycentric constitutional order in which one would subscribe to a legal system of one’s choice as today one subscribes to cell phone service, health and auto insurance, or private security providers.
I think that even if you created polycentric constitutional order, or what I call Virtual Federalism, it could easily break down. There could be jurisdictional disputes–I say resolve our disagreement in Court X and you say you signed up for Court Y. To resolve these disputes, we need an ultimate arbiter. And there is a potential for the ultimate arbiter to take on more and more power, just as the Federal government has in the United States.
I hate to see people get all caught up in national elections. The Presidential election is, as CNN puts it so well, a Ballot Bowl, analogous to the Super Bowl. It is a marketing extravanganza for centralized government.
Ultimately, the reason that we do not have something closer to virtual Federalism now is that the two parties have very effective marketing operations. In the battle of ideas, at the level of folk beliefs, we are losing to The People’s Romance.
READER COMMENTS
jurisnaturalist
Feb 19 2008 at 8:16pm
What about a minarchism limited to courts? I’ve often wondered whether the framers, with their respect for the English Common Law knowingly made the Chief Justice the most powerful office, and built the legislature and executive around the judicial as a means of protecting the law from external influence. They failed, of course, but the focus of Common Law seems to have been appropriately placed.
Nathanael Snow
Senior, Econ, NCSU
RL
Feb 19 2008 at 10:24pm
AK: “I think that even if you created polycentric constitutional order, or what I call Virtual Federalism, it could easily break down. There could be jurisdictional disputes–I say resolve our disagreement in Court X and you say you signed up for Court Y. To resolve these disputes, we need an ultimate arbiter. And there is a potential for the ultimate arbiter to take on more and more power, just as the Federal government has in the United States.”
That doesn’t follow at all. If there’s a dispute between court X and court Y, you need an arbiter. Let’s call it Court Z. But that doesn’t make Court Z an ULTIMATE arbiter. If there’s a dispute between court A and court B, they are free to choose Court C to arbitrate. Every disputant doesn’t need to choose Court Z. In fact, A and B could choose X, so X is arbitrating one case for A and B while Z is arbitrating another case for X and Y. Nothing here requires THE SAME court to arbitrate ALL issues.
Thus, it is a POLYcentric system. And that competition holds a defacto check, not merely a theoretic check, on assumptions of arbitrary power, because you have a chance to shift your payments to another system in the same geographical area.
Troy Camplin
Feb 19 2008 at 10:39pm
I just observed on my blog that the LP has a good R&D dept., but such a hideously bad sales dept. that it’s amazing the entire company hasn’t gone under yet.
TGGP
Feb 20 2008 at 12:05am
I’ve often wondered whether the framers, with their respect for the English Common Law knowingly made the Chief Justice the most powerful office
Where in the Constitution did they do that?
David Friedman
Feb 20 2008 at 2:23am
“There could be jurisdictional disputes–I say resolve our disagreement in Court X and you say you signed up for Court Y. To resolve these disputes, we need an ultimate arbiter. ”
Part of the service my rights enforcement agency provides is the ability to settle disputes in a peaceful and reasonably predictable manner. It provides it by contracting in advance with other such agencies as to the court they will use. So when you and I have a dispute, we don’t get to each choose the court. The dispute goes to the court that my agency and yours agreed, at some point in the past, to use to settle disputes between their clients. No ultimate arbiter required.
Who enforces their agreement? The market. If my firm routinely renegs on such agreements other firms will refuse to contract with it, it will be unable to provide services in a safe and reliable fashion to its customers and will go out of business.
So no ultimate enforcer required either.
There are possible arguments for why such a system would be unstable, but the need for an ultimate arbiter isn’t one of them.
flix
Feb 20 2008 at 4:57am
check
The “ultimate arbiter” article is always made by people that do not understand decentralisation or emergent order. it is an instinctive “but someone must rule” reaction.
liberty
Feb 20 2008 at 10:09am
The ultimate arbiter argument might have something slightly more to it than just an instinctive reaction – it sounds to me similar to an argument made here in response to vertically integrated proprietary communities regarding checking of power under conditions of unequal strength.
Scott Scheule
Feb 20 2008 at 11:55am
All that’s true, but the strongest response to the ultimate arbiter argument is simply pointing out that there is no ultimate arbiter, at present, in the world at large. We don’t have a world government–we have governments of various sizes that settle their disputes, sometimes amicably, sometimes not, without the need of recourse to any final arbiter.
I agree with David. Such a system may be unstable, but this isn’t the reason.
liberty
Feb 20 2008 at 12:36pm
Scott,
Unless the system that we have on a global scale *is* broken down. The original argument was
“I think that even if you created polycentric constitutional order, or what I call Virtual Federalism, it could easily break down. There could be jurisdictional disputes–I say resolve our disagreement in Court X and you say you signed up for Court Y. To resolve these disputes, we need an ultimate arbiter. ”
But how are most inter-country disputes settled? Either by an international criminal court kind of “ultimate arbiter” or by war or by the most powerful country having its way. One country says “in my jurisdiction (by country) we think X; lets resolve the dispute through my court” and the other one says “In mine we think Y” and then the strongest one wins.
Most disputes between countries are settled – and have been settled for all history – by war. That is exactly the kind of “breaking down” that is argued would occur within a nation if there is no ultimate arbiter.
Of course, I am against one world government – that kind of answer is of course even worse. Then you just have a monopoly of force given to the absolute strongest. However, it doesn’t nullify the argument that the lack of a reasonable ultimate arbiter or ultimate rules-of-the-game is a problem.
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