John K. Palchak & Stanley T. Leung, No State Required? A Critical Review of the Polycentric Legal Order, 38 Gonz. L. Rev. 289 (2003).[PDF] [Westlaw] [LexisNexis]
As the vision of law as a science wanes, legal scholars justify their projects through interdisciplinary scholarship. Surprisingly, while new interdisciplinary approaches to legal analysis such as microeconomic analysis, sociological analysis, critical literary analysis, and deontological theories of equity are embraced, few question the centralized legal system itself. Few anarchists will devote the time and expense to enter the legal profession and then attack the very institutions upon which their career depends. Nevertheless, such a personality occasionally violates the academy; when he does, legal scholarship takes a break from mundane pettifoggery and a truly interesting debate begins.
Randy E. Barnett, a law professor and former prosecutor, argues in his treatise, The Structure of Liberty, that the current monocentric constitutional order infringes on the liberty of individuals, and that it should be replaced by a polycentric order wherein the power to adjudicate and resolve disputes would be held by private companies. Barnett’s constitutional modeling relies on market forces and private enforcement of norms to provide the structure necessary to preserve liberty and individual rights. This is a radical idea and it deserves examination. Unfortunately, perhaps because of the arcane nature of such philosophical discussions, scant attention has been paid to Barnett’s work outside libertarian circles.
By proffering a new legal order with private enforcement and private adjudication of criminal disputes, Barnett advocates a legal regime without a public executive or judicial branch. Thus, he supports political anarchy of a type that may have only existed once-in medieval Iceland….Read More