Law Can Be Private

This article was published in the Spring 1994 issue of Formulations by the Free Nation Foundation Law Can Be Private by Richard Hammer

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After the FNF Board of Directors decided the subject for our second forum, systems of law, it became evident that I needed to learn something if I hoped to contribute. Accordingly, the President of FNF assigned me the task of reading The Enterprise of Law, by Bruce L. Benson. I never would have undertaken this assignment without some prodding. But, having completed it, I can say that I feel grateful. Would you like to feel grateful too? Okay, here is your assignment. Read this book.1

Before reading The Enterprise of Law a question lingered in my mind: could law indeed be private? The book pretty much answered that in the affirmative. Benson convinced me with examples and stories. So I find myself back at the drawing board asking, now what is the question? Private law sounds better to me than the government stuff. I want it. What can we in the Free Nation Foundation do to move toward it?

We could say that the FNF work plan calls for us to describe the specifics of a system of law under which we libertarians would be happy to live. And surely that is worth undertaking. But before going far down that path I want to understand better the animal we would tame. Law is a living and moving thing — with teeth.

Realizing now, as I did before the first FNF forum, that I am better equipped to ask questions than to answer them, I will plan to structure my part in our upcoming forum around some questions. I will ask the questions, give my tentative answers, and then ask for others to suggest their answers.

My questions are:

1) How big is law? To adequately

describe it would we need ten words,

ten pages, ten volumes, or ten lifetimes?

2) What aspect of human nature or human culture drives government law to supplant voluntary legal systems, as it has done throughout much of the world in recent history? (This question is borrowed from correspondence of Bruce Benson.)

3) Assuming we get the correct answer to question 2, is this drive reversible?

4) Assume we found ourselves empowered to dismantle a system of government law. Assume for instance that we had purchased from the citizens of a small country their consent to implement our constitution. How would we dismantle the government system of law? In what sequence? What problems could we expect to encounter?

I realize that I have not brought a doubting reader along to share my confidence that law can be private and voluntary rather than "public" and run by the government. I imagine that such confidence is built with experience or with stories filled with believable details. I hope that for future issues of Formulations our readers will submit accounts which help carry this point.

For me, Chapter 2 of The Enterprise of Law provided sufficient data to make a convert. Here I give one excerpt. In it Benson is recounting research, done by Leopold Popisil in the 1950's, of the stateless Kapauku Papuans, a primitive linguistic group of about 45,000 people living by horticulture in West New Guinea.

"Recognition of law was based on kinship

and contractual reciprocities motivated

by the benefits of individual rights and

private property. Indeed, a 'mental codification of abstract rules' existed, so that

legal decisions were part of a 'going order.' Grammatical phrases or references

to specific customs, precedents, or rules

were present in all adjudication decisions

that Popisil observed. He concluded: 'not

only does a legal decision solve a specific

case, but it also formulates an ideal — a

solution intended to be utilized in a

similar situation in the future. The ideal

component binds all other members of the

group who did not participate in the case

under consideration. The [adjudicator]

himself turns to his previous decisions for

consistency. In a way, they also bind him.

Lawyers speak in such a case about the

binding force of precedent.'"

(The Enterprise of Law, p. 17.) D

1 Bruce L. Benson's The Enterprise of Law: Justice Without the State, published in 1990 by the Pacific Research Institute for Public Policy, may be purchased from Freedom's Forum Bookstore in San Francisco, 415-864-0952. As of press time, Freedom's Forum is offering a hardcover copy for a sale price of $14.95 plus shipping, though the price will probably go up soon.

Richard O. Hammer, founder of the Free Nation Foundation, owns a small business building houses in Hillsborough, North Carolina. On a local level he writes frequent columns, interpreting political events in a libertarian frame. He participates in the Republican Party and currently is candidate for County Commissioner in Orange County, NC. In the past he worked as an engineer and management scientist.

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