In response to: Why Freedom Is a Legal Concept
Steven Grosby’s rich Liberty Forum essay combines, as his writing always does, a sensitivity to history with a careful attention to theoretical problems. I am tempted to engage him on the terrain of history, in the hope of prompting still more from him on the Middle Ages; were I just a listener, that is what I would most want to hear him say more about.
But in the final section of his piece he raises a set of questions that have preoccupied me for a long time—from my earliest work on indigenous land rights up through my book Rationalism, Pluralism, and Freedom (2014)—and I cannot resist the invitation to emphasize and amplify them. What is the relationship between a plurality of legal systems on the one hand, and such legalistic values as equality before the law, the rule of law, and respect for rights, on the other? “Equality before the law” has been an important liberal rallying cry for generations in its own right, and has entered deeply into the modern and liberal understanding of the rule of law itself.
But, as Robert Nozick famously maintained, liberty disrupts patterns. And Grosby puts his finger on a generally unappreciated way in which liberty disrupts even a pattern like a society governed by an equal and universal law applicable to all. In a complex legal system, it is usually (perhaps always and necessarily) the case that private persons can create new legal states of affairs through wills, testaments, and trusts; through contracts; and especially through association.
Individuals use their equal freedom to join together and create a new society governed by internal rules. That society will have internal methods of adjudicating disputes under that rules; it may have procedures for interpreting, revising, or adding to them as time goes on. The society may well be long-lasting; if there is a procedure for admitting new members, it may be in principle immortal. Corporations, universities, associations, churches, homeowners’ organizations, clubs, and so on will each generate (note the language here) bylaws that become an important part of the legal-social order under which persons live. These interact with the public legal system in the background, but the interaction can become visible in case of disputes.
When a university expels a student under its internal bylaws or regulations, the student loses the legal right to (for example) continue to live in the university’s dormitory. We normally expect the student to move out peacefully, but eviction by the coercive force of the state is a possibility if it is needed, and that casts a shadow over the whole interaction. One university might consider drinking, dancing, or premarital sex an expellable offense, a second might so treat first-offense plagiarism, and a third homophobic or racist hate speech. Does this violate equality before the law? Surely not. Does it violate the rule of law? Not so long as each university follows appropriate internal procedures, governed by such features as prospective notice, consistent application, and the right to defend oneself before impartial adjudicators.
As Grosby notes, the possible tension between the rule of law or equality before the law and legal pluralism goes well beyond the bylaws of associations. There could be, for example, a tension between federalism and any other system characterized by jurisdictional choice or competition. In the United States, in some places you can buy fireworks, in others not. In some you can buy alcohol on Sundays, in others not. In some, no-fault divorce is easy to come by; in others, legal firearms are easy to come by. We take this for granted, but Grosby is right to point out that there’s a prima facie puzzle here, the same one the Marquis de Condorcet noted more than two centuries ago:
As truth, reason, justice, the rights of men, the interest of property, of liberty, of security, are the same everywhere, we do not see why all the provinces of one state, or even why all states, should not have the same criminal laws, the same civil laws, the same laws of commerce, etc. A good law must be good for all men, as a true proposition is true for all.
Why do those of us who value equality before the law and the rule of law not much hesitate about federalism? (Some of us don’t, anyway.) The answer is probably some combination of mere familiarity and a sense that “the law” can mean the law of New Hampshire or the law of California, and so equality before “the law” isn’t impaired by the existence of different law in different places.
Jurisdictional choice and competition of a more general sort are widely endorsed by libertarian and classical liberal thinkers, sometimes under an umbrella concept like “polycentric law” or “polycentric governance.” To take a familiar and relatively easy example: in the federation of the United States, contracting parties can specify in the contract, more or less freely, which state’s law will govern disputes arising under the contract.
In commercial law, the state chosen is often New York or Delaware, for they both have well-developed law about complicated commercial transactions and special depth of judicial expertise in them. This offers contracting parties stability and certainty. This exceeds the usual kind of polycentric jurisdictional competition wherein persons or firms physically move to places that have more efficient, less corrupt government—locales that balance taxation and public spending in a way that these persons or firms prefer (or dislike less, at any rate). The contracting parties of which I speak don’t need to move; they merely need to opt in. This exerts competitive pressure on other states to bring their commercial contract law into line with that of New York and Delaware.
In a similar, though not identical, way, the history of English law offered by Adam Smith in The Wealth of Nations (1776) includes competition among courts as an important mechanism for legal improvement over time:
The fees of court seem originally to have been the principal support of the different courts of justice in England. Each court endeavoured to draw to itself as much business as it could, and was, upon that account, willing to take cognisance of many suits which were not originally intended to fall under its jurisdiction. The court of king’s bench, instituted for the trial of criminal causes only, took cognisance of civil suits; the plaintiff pretending that the defendant, in not doing him justice, had been guilty of some trespass or misdemeanour. The court of exchequer, instituted for the levying of the king’s revenue, and for enforcing the payment of such debts only as were due to the king, took cognisance of all other contract debts; the plaintiff alleging that he could not pay the king because the defendant would not pay him. In consequence of such fictions it came, in many cases, to depend altogether upon the parties before what court they would choose to have their cause tried; and each court endeavoured, by superior dispatch and impartiality, to draw to itself as many causes as it could.
Smith argues that this dynamic encouraged each court to try to provide “the speediest and most effectual remedy which the law would admit for every sort of injustice.”
Many classical liberals look to such mechanisms—competition among states or court systems for legal business, as it were—as ways of improving law and securing liberty, as well as seeing them as directly normatively attractive because of their emphasis on choice.
I share those attitudes, while still thinking that there has been far too little work examining the relationship between the ideal of equality before the law at any one time and the mechanism of improvement over time through competition that depends on the possibility of legal differences existing at any given moment.
There has also been too little work drawing connections between classical liberal ideas of polycentric law and jurisdictional competition and what is widely referred to in other literatures as legal pluralism, which is to say the coexistence, under one overarching system, of distinct legal systems and traditions, usually arising out of different cultural and religious inheritances. Examples of this coexistence would be the religious systems of family law that hold in India, Israel, and Lebanon; the indigenous and aboriginal systems of property law that exist alongside those of the common law in settler nations such as the United States, Canada, and Australia; and the right to choose to have disputes about one’s marriage adjudicated by Jewish or Muslim religious arbitrators applying those religions’ norms.
There is overlap in practice. The introduction of religious norms into marriage or contract law in a system like the United States happens through the same mechanism as the choice of Delaware law: stipulation by the parties. (This is different from the systems of religious family law in India or Israel.) Within certain domains, there is choice of law.
It’s worth noting that this is the only sense in which sharia is or could be a recognized legal system in the United States: particular Islamic rules, norms, and institutions can be opted into by contracting parties. When practitioners of conservative identity politics whip up fear of the use of sharia by American courts and pretend that they’re talking about the adoption of Saudi Arabian criminal law, they are acting in bad faith, and the prohibitions on the use of sharia they try to impose are only restrictions on the choice of law by private parties.
Yet the overlap in practice hasn’t meant much intellectual overlap. Advocates of polycentric law and jurisdictional competition carry on talking as if the normal case is that of commercial actors opting into Delaware and New York. Scholars of legal pluralism focus attention on the persistence of tribal and religious legal codes in multiethnic states. Rarely do the twain meet. This is true in politics: people who think of themselves as strong supporters of states’ rights or of jurisdictional competition in commercial law are routinely not those who are sympathetic to, say, the jurisdictional authority of American Indian tribal reservations. But it’s also true in scholarship.
There’s every reason to expect the two kinds of pluralistic law to operate somewhat differently. Delaware and New York’s competitive advantages are well established by now; the number of contracts that specify those states and the expertise that their judicial systems house reinforce each other. But if one or both of those states were to dramatically lower the quality of its contract law, we expect that commercial actors wouldn’t stick with them for long. They would seek out the next-best legal product.
For reasons of cultural norms and of familiarity and comprehensibility, systems like tribal or religious law will be much harder for their ordinary participants to abandon. And those in positions of authority in those communities will often have reason to rally their populations around the persistent legal traditions, to affirm identity or build political power. Those legal codes won’t face the kind of rapid competitive pressure for quality control (transparency, liberalization, predictability, and so on) that rival commercial legal codes would. This can, in turn, allow for internal abuses of a variety of kinds.
This, I should emphasize, can also be a feature of federalism itself, and is emphatically not unique to cultural or religious minorities. It’s easy to assume that states—that is to say, legal authorities in states—face simple incentives, to attract and retain residents, capital, legal business. But to political elites, there’s often something to be said for the exit of troublesome dissenters, sophisticated commercial actors, or others who might press for transparency and non-corruption. Not to put too fine a point on it: the political class in a place like Louisiana or Rhode Island has often been happy enough to lose those interstate competitions, the better to entrench their local power. (My further thoughts on the relationship between the rule of law and political power will appear in a future Law and Liberty post.)
There is a lot more to be said about which kinds of legal pluralism will have what effects under what conditions. The important thing here is to note that we can’t start to think about the comparisons until we realize that there’s a general phenomenon at all.
What does any of this have to do with equality before the law and the rule of law?
If we abandon the premise that the rule of law requires one uniform law before which we can be equal—if we at least refuse to let Condorcet’s dictum be part of the definition of the rule of law—then it might be true that the rule of law is arrived at over time, partly through mechanisms that allow for local violations of it. Jurisdictional competition could press in the direction of transparency, noncorruption, prospectivity, and so on, while at any given time walling off some jurisdictions and some legal disputes from what might be the best understanding of the rule of law at any given time. An attempt to immediately abolish all local abuses could deprive us of the mechanism that would serve to ameliorate even more abuses over time.
Maybe. At least, it seems to me, that’s a hypothesis worth exploring, to figure out under what circumstances it’s true. But even exploring it requires that we follow Steven Grosby’s lead in putting away simple and uniform conceptions of what the rule of law must be. It demands that we turn away from the contractarian and Prussian Rechtstaat image of the rule of law, and return instead to one of the greatest 18th century theorists of the rule of law, the Baron de Montesquieu, who wrote near the end of The Spirit of the Laws (1748):
There are certain ideas of uniformity that sometimes seize great spirits (for they touched Charlemagne) but that infallibly strike small ones. They find in it a kind of perfection they recognize because it is impossible not to discover it: in the police the same weights, in commerce the same measures, in the state the same laws and the same religion in every part of it… [D]oes not the greatness of genius consist in knowing in which cases there must be uniformity and in which differences? . . . When the citizens observe the laws, what does it matter if they observe the same ones?
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