 Yesterday I was talking about the problem with what I was calling the single power principle. That is a principle that there must exist somewhere in society, a single institution, or a monopoly that is charged with authorizing the use of force or power, and that this monopoly must be kept in place by use of force or power. And as a shorthand for this I refer to this as the coercive monopoly of power. And I gave three problems that arise when you have a coercive monopoly of power, and they were the selection problem, who is to get the power, the capture problem, how do we keep evil people or the bad people in a sense for whom the power was created in order to fight them, how do we keep them from taking control of the power. Then there's the corruption problem that power itself has a corrupting influence on the people who have power. I should just remind you of the statement by Lord Acton that power corrupts and absolute power tends to corrupt absolutely. No, it's power tends to corrupt and absolute power corrupts absolutely. He also had another phrase in the same letter for which that is taken, that's not nearly so well known, and that is that he said, great men are usually bad men. That almost is good, if not better than the other one. But I think it is a problem that's under-recognized even by libertarians, the extent to which power itself has an insidious effect on the character, on the very character of the people who have power for any period of time. Then the last problem which I think is the most serious of all the problems is the legitimacy problem that gives unwarranted legitimacy to the people who are in possession of this monopoly because people believe that the monopoly is so important. By virtue of that belief they give legitimacy, unearn legitimacy to the people who have the power and that allows additional advantage taking to take place that otherwise would in the absence of that legitimacy. There is a fifth problem that I didn't talk about and which I'm going to mention just briefly. It's a problem that libertarians place a lot of emphasis on, doesn't really accomplish much in argument and that is what I would call a conceptual problem. These other problems were practical problems. There is a conceptual problem with the power, the single power principle and that is it gives some people rights and powers that other people don't have. That's the whole idea of a monopoly. That's what a monopoly is. It gives some people rights and powers that other people don't have. Now we make a lot of that, libertarians make a lot of that issue because they think there is some kind of contradiction involved in doing it, some kind of logical contradiction. In the way around it that people who believe in the course of monopoly take is they simply define rights and powers so as to exclude the powers that power holders have from the kind of rights and powers other people have therefore there is no logical contradiction if you define rights this way. My problem with this is that a definitional approach doesn't handle the various problems I've already discussed and in fact essentially defining an exception which we have a lot of exceptions things. You can't use force but you can use it in self-defense. The idea of an exception itself is not a contradiction but defining an exception for purposes of the course of monopoly of power should be a warning at a very least that something's going on that might be dangerous, that might prove to be dangerous because if the general rights that are normally recognized as a part of justice that are necessary to solve the other problems of knowledge and interest that I talk about elsewhere in the book I'm writing about if those rights are necessary to solve those problems we should suspect that if there's an exception created to those rights then we might have difficulties with those very problems in this area and simply creating an exception creating a definitional exception doesn't in any way deal with the problems that the exception will then create and so I would argue to those who make this definitional exception that the burden is on them to show how in the absence of adhering to these rights in other words in the absence of holding people who have power to the same rights as everybody else they are going to solve the problems that these rights are normally necessary to solve for everybody else and that's a burden that they generally don't take on okay so let me just get caught up here for a second I have my notes a little bit out of order okay so that would be the last problem and now let me talk a little bit, I'm going to get back to that in a minute what I'm going to essentially propose is that people who hold power for purposes of enforcement and adjudication are held to the same principles as everybody else, the same principles of justice and I'm going to say what that entails in a minute but let me just talk for a minute about, as I said I was going to do yesterday about the constitutional constraints that have been devised primarily by classical liberals classical liberals may not have understood the problem of power better than the left or the right but they certainly have taken it more seriously in so far as over the centuries they have developed ways of trying to constrain or shackle power so as to protect the people from enforcement abuse as well as enforcement error and I want to talk about a few of the techniques that have been involved these are all perfectly familiar to you, I'm just reminding you of them because I think that each one of them, although imperfect, highly imperfect they were better than nothing and they represent fundamental principles that could be better put into effect than I think they have been the first technique that was used, or not the first in time but the first I'm going to discuss is what we might call decision making by balloting or voting decision making by balloting or voting and the idea here, the strategy here is that once you've created this privileged monopoly of power the real problem with it is that it has powers and rights that you're not allowed to have that regular people are not allowed to have what decision making by balloting or voting attempts to do is to establish some kind of reciprocity, some kind of reciprocal relationship between those who hold the power and those who are the subjects of the power something that otherwise you wouldn't have so in that sense it's a good move the problem with the course of monopoly of power is essentially is non-reciprocal those people have powers you don't have so we try to establish some notion of reciprocity by giving the people who are the subject of the power their own powers in some sense to control or to remove from power those people who hold power and it is a step in the right direction given the fact that it is a measure of reciprocity that otherwise would not exist but there are serious problems with it serious deficiencies with balloting or voting as a means of establishing reciprocity the first is what I would call a knowledge problem that is it assumes that voters can be sufficiently informed about matters of enforcement to have knowledgeable opinions as to how they should be used or how they in fact are being used it assumes that they know enough about candidates who run for office to make an intelligent choice among them it assumes they can monitor the performance of the rulers closely enough to hold them accountable for any enforcement abuse and finally the choices that are provided by an electoral system when you have to choose between you know Tweedledum and Tweedledumber are simply too general to enable knowledgeable expressions of opinion or genuine constraint that is you are given extremely wholesale choices between two different say parties maybe there'll be three but generally two different parties and each party represents a whole series of issues a very special combination no particular logical affinity from one to the other and you have to choose this whole range of positions versus this whole range of positions and you don't have an opportunity to knowledgeably say well I want this and I want this and in different pieces of it you're just not given that choice within the system those are knowledge problems that are associated with voting there is also an incentive problem associated with voting and that is that it gives the people a system of periodic elections which of course is what you want except I suppose we don't have that for judges but we have that for other kinds of rulers these obviously give rulers a very short run perspective that is it's in their interest to be re-elected their time horizon then is limited to the period of time between now and the next election any policies that they try to implement any actions they try to take have to pay off to be demonstrably successful simply in that short period of time any policy they might want to implement that would take longer than that period of time they're not going to get credit for so they're less likely to do it we then rely on altruism to have people who have this power do anything that would involve a long run perspective party systems by the way are one way to try to get around that because parties then get credit for long run perspectives and maybe other people get elected but they still have to get past the next election the other problem of interest that comes up with respect to voting is what you might call a problem of partiality it's what I call the problem of partiality not only do we have to worry about rulers acting in their own interest therefore abusing power we actually have to worry about voters doing it too just because people vote doesn't necessarily mean they vote consistent with the requirements of justice they vote oftentimes consistent simply with their own interest at the expense of the rights of other people the majority can be expected sooner or later to vote out of a corrupt or advantage taking purposes of their own it's exactly what interest group politics is all about defused interest makes it less rational for everyone except organized interest groups to vote in an organized fashion and this particular problem was a problem that was well recognized by the framers of the U.S. Constitution especially by James Madison and he called this problem this problem of the majority eventually voting out of interested motives he called this the problem of faction if you ever hear any discussion in the framing period about the problem of faction it is a specific problem of interest he's talking about and he's not just talking about the interest of rulers he's really talking about the interest as he put it the greater number of constituents that the problem is the rulers are going to reflect the interest of the greater number of the constituents as opposed to the lesser number of its constituents and here's how we define faction famously in Federalist 10 by a faction I'm gonna need a glass of water at some point this morning right great without gas please by a faction he said I understand a number of citizens whether amounting to a majority or minority of the whole who are united and actuated by some common impulse of passion or of interest thanks adverse to the rights of other citizens or to the permanent and aggregate interest of the community adverse to the permanent aggregate interest of the community and notice here how Madison sets up interest as adverse to the rights of other citizens so his interest is one thing and it could be a problem and the rights of citizens is something that could be violated as a result of interest alright so that's balloting as a means of establishing reciprocity reciprocity is the good thing balloting is a less than perfect way of implementing reciprocity or accomplishing reciprocity let me go on to the second technique the classical liberals have used to try to constrain the single monopoly of power or the coercive monopoly of power and that is the strategy of federalism or the practice of federalism and separation of powers here is the strategy is to create checks and balances on power so-called checks and balances on power after all the problem with the one of the problems with the single power principle is adherence to a monopoly or single supplier of power or coercion and that's what creates the opportunity for abuse so the federalist and separation of power strategies tries to control the monopoly the monopolistic aspect of the scheme by creating several competing institutions of power each of which can check and balance the power of the others now once again this is a good idea checks and balances are an excellent idea for constraining power however the way it's been implemented within this single power principle is less than ideal it still preserves the unearned legitimacy of power and the coercive barriers to entry however many power centers formal power centers are created they remain in control indefinitely that is short of a revolution they do and by virtue of remaining in control indefinitely although I should just say let me point out just one thing even a formal separation of powers that doesn't have any real obvious function can still be an important benefit as was shown in Eastern Europe and the fact that Lennon was unsuccessful in formally abolishing the subordinate or the individual countries within the Soviet Union even though all the power was taken away from these countries, these nations their very existence as a formal matter made it much easier to transition from the Soviet Union to what we have today had these areas had to be set up formally it would have been much more difficult simply to snap your fingers and that was the end of the Soviet Union which is what happened so even the maintenance of a formal separation is better than nothing as that shows and yet once you have a mere formal separation within amongst the holders of the monopoly the very fact that they are continuous that they go on and on together leads to a cooperation rather than a rivalry among them as game theory has tended to show iterated games that is games that go on going with the same players over and over again lead to cooperative outcomes this by large is a very beneficial thing for us that we get cooperation from repeat exposure to each other however when it's formal separations of governmental units that have repeat exposure to each other and they start cooperating that undermines the reason why you've created the formal separation in the first place when each side has the other by the throat metaphorically speaking no one is willing to squeeze too hard for fear they're going to get squeezed and so what ends up starting off as checks and balances ends up being a philosophy of you scratch my back I'll scratch your back and ultimately and if they don't think of it themselves interest groups will think of it for them and will provide the important lubrication of money and of communication between the various groups so that they end up coordinating their activities rather than checking it providing genuine checks on each other okay so that's the that would be the second the idea here is checks and balances imperfectly realized in the form of formal separations of powers but not necessarily actual or real separation of powers and once again as I say the legitimacy that's attached to these institutions is maintained a legitimacy that's quite dangerous in which we would be better off not having the third strategy or the third practice that liberals have hit upon and that is the practice of free emigration the idea here that you can leave a country if it becomes too abusive you can leave the monopoly jurisdiction if it becomes too abusive this is a strategy that represents an underlying principle which is extremely important and that is a principle involving what you might call the power of exit the power of exit and according to this strategy persons associations indeed whole geographical areas may freely succeed from the jurisdiction of the person monopoly of power and in this way if that's allowed those in charge of the monopoly being aware of the fact that they if they were to abuse their power people could just leave their jurisdiction are going to be deterred to some degree from exercising power in abusive manner if they are facing this this possible opposition the problem with it even though it's an extremely powerful mechanism for constraining power the problem is perhaps because it's so powerful that they are very weakly incorporated into modern monopolistic practices or monocentric legal systems for example it's really limited in most countries simply to the individual power to emigrate or the individual right to emigrate it does not for example include in virtually any country in the world what you might call a power of succession or a right to secede from the geographical area and I think there's a reason for that the right to emigrate or what sometimes is referred to as voting with your feet is a very important right it's a very important power we should be very strongly in favor of it we should be strongly in favor of the right to emigrate on the other hand it's an extremely costly right to exercise by the people who hold it because what it also means in most cases is you have to leave the area where you were born in the area where you were raised in the area where you have your education the area where you have all your friends in your social network likely even the area where you have a language that you have in common with other people to go to an area where you lack all of those things consequently people are very reluctant to exercise this power even if they have it unless things are really really bad and sometimes even when things are really really bad they won't do it I mean if you imagine all the Jews that stayed in Germany until it was too late to leave in the face of unbelievable oppression they still stayed anyway because I think the cost to them of exiting was so high that they just couldn't bring themselves to leave they would rationalize any imposition if that enabled them to stay and not give up what they would have to give up if they exited now because the power of exit is so costly if it's only exercised by means of simply emigrating there's another way of doing it that lowers the cost considerably and for that reason it's usually denied and that is a power of secession the reason why secession is a power of exit that has a much lower cost is you don't have to leave home to exercise it you basically take your home with you everybody around you goes and therefore you don't have to leave your language community you don't have to leave your physical area you don't have to leave your home you just leave the jurisdiction and because that's a much easier thing to do I think it's one of the reasons why that power or that right is not given to us or it's not generally recognized in fact the only place where it was formally recognized and I know this only because it was there's only one book on secession that I'm aware of it's a book that was by Alan Buchanan was published in the last few years and in that book he claimed that there was and it was written before I think it came out before the fall of the Soviet Union he said the only place in the world where the right of secession was formally recognized in any constitution was in the Soviet Union when the Baltic states maintained the constitution which was never granted but it was actually listed there no other jurisdiction according to Alan Buchanan has such a right to recognize and there are some reasons for it there are some costs of secession and that is that if a geographical area secedes there's going to be people within that geographical area who themselves may not want to secede and they're taking with the group even though they become a minority group they may have been a majority in the other group now they're a minority in this group they don't want to leave, they've got to go too and that's often used as an objection to secession and it's not when we should disregard lightly so the right to secede I think is the power of exit which is what I'm really talking about is the underlying principle is an extremely important constraint on the exercise of power but it's only been weakly put into effect in any system and if we were to have a better system it would be a system that would allow low cost exit without having the problem of group exits that would take people out of the system they otherwise are happy with because they don't want to leave and now they have to leave only because of where they happen to be relative to the other people that want to leave and how are we going to do that now what is the alternative to the single power principle and that's what the rest of my talk is going to be about the idea here what we want to do is we want to achieve reciprocity we want to achieve checks and balances and we want to achieve a power of exit within a not a monocentric regime which is what the course of monopoly of power represents monocentric means a single center but a polycentric regime that has many centers we want to do that and I submit that we will be able to do that if we simply make two small changes two tiny little insignificant changes in our current principles of justice or our current I refer to these as two itsy bitsy teeny weeny changes you just make these two little changes if everything that is that we exist right now is perfectly satisfactory if everybody is very happy with what we've got nothing will have to change but if it turns out what we have now is not the best of all possible worlds then these two very small insignificant changes might let us evolve into one that's better and these are basically two principles that we should recognize the first is what we might call the non-confiscation principle the non-confiscation principle would say law enforcement and adjudicative agencies and those by the way I will insist are not the same things law enforcement is what we what the what within our constitutional structure we refer to as the executive power the power to execute the laws whereas adjudicative agency is what we would call the judicial power the power to decide who should win and who should lose two different functions but the non-confiscation principle would say that law enforcement and adjudicative agencies should not be able to confiscate their income by force but should have to contract with the persons they serve it doesn't sound so terrible the the second principle that needs to be adopted is what you could call the competition principle that is law enforcement and adjudicative agencies should not be able to put their competitors out of business by force that's it that's the entire change that's all I'm proposing just these two changes and nothing has to be abolished nothing has to be ended you don't have to go and burn down any buildings or you know anything you just have to adopt these two principles the non-confiscation principle and the competition principle and if you do these things then once again if what we have now is optimal they will continue to be if it's not optimal then eventually by sticking with these principles other things will happen and now let's talk about those two principles let me just talk about first of all the non-confiscation principle how is it possible how might it be possible for law enforcement and adjudicative agencies to get money other than by confiscating it oh by the way I should just say one thing about these two principles adherence to these two principles these are not special case principles made up just for law enforcement and adjudication they are simply an application of the same principles of justice that apply to the rest of us in other words this ends the special status of these institutions and subjects them to the same principles of justice that we all are subjected to the non-confiscation principle is the idea that you can't take something from somebody without their consent is an aspect of freedom of contract which is called freedom from contract freedom from having transfers imposed upon you without your consent that's the same principle that in the rest of the book I say is absolutely necessary to solve problems that for everybody it's also necessary here the competition principle is another aspect of freedom of contract which is called freedom to contract the idea that when you consent to having a transfer that should be legally recognizable that should have a juridical effect and so all these two principles are specific applications of the general principles of justice that apply to everyone all the time are ought to only now they're going to apply to law enforcement agencies and adjudicative services as well so we're no longer going to make an exception for them they're going to have to be subject to the same principles of justice that the rest of us are subject to now let me talk about and then I seem to be missing the rest of my notes here for some reason I've kind of run out of my notes so I'm going to have to do it you just hold on a second well that's never happened before I'm just going to open up to the chapter of the book that I have included in the readings here so I have something to follow along on thanks oh really? okay alright well maybe I can keep it up alright let me talk about the first aspect first which is the decentralized constraints on power the idea that you're going to have non-coercive funding non-confiscation of income once again this is an application of what I call what has been called not just me freedom from contract consumers of law enforcement adjudicative services should not be compelled to transfer resources to another including to law enforcement without having their manifested consent to the transfer now the first thing that this will help us do is address what we call the knowledge what I call the knowledge problem the whole purpose for freedom not the whole purpose but one of the important purposes played by freedom of contract is it allows knowledgeable choices to be made and it allows the knowledge of some to be incorporated into the decisions of others by means of prices it's if we could have all kinds of prices I mean prices are not the problem but without freedom of contract prices won't reflect the knowledge of the people that people have that are dispersed by the society it's only because people can withhold their consent to a transfer that when they end up agreeing to a transfer at a particular price that price has meaning and then that meaning is transmitted through the economy through the society to other people so the price ends up being an encapsulator an encoded form of information and it's only informative because of the rights of freedom of contract that are recognized in the first instance for the very first transfer we lack all of that with respect to adjudicative services and enforcement agencies and where we do have the idea of freedom of contract extended to that area then we would have access to the information that that would bring about because they lack because we lack prices and we lack information if for no other reason even if they are good-hearted monopoly law enforcement and adjudication services are hopelessly unresponsive to consumer needs and to not desires for a minute the people that have to go there people who are consumers of these services have to go have to take off work to go down to the courthouse as opposed to having businesses in the evening the way other businesses have I mean it wouldn't even occur I mean they now actually in Chicago have drug court in the evening because they have so many drug cases that they need to have used the courtrooms all the time but they didn't think about doing that for the purposes of the ordinary consumer they only did that when they so one of the things that the provision of that the implementation of this freedom of contract idea here is it would be actually provide an incentive and information to the people who are providing these services to be responsive to consumer demand in the ways that they are in other areas it also addresses and this is more relevant to what I was talking about earlier the problem of interest the right to withhold one's patronage is one of the most effective means of disciplining any institution and including law enforcement it's essential to creating a relationship of reciprocity between the provider and the consumer of legal services if I don't have to do business with you then I have a power relative to you that you have to take into account when you decide what you're going to do and that's the kind of power that really is genuine reciprocity in a way that mere voting isn't particularly when money is at stake particularly when the flow of income has to be achieved voluntarily the fact that individuals and firms respond to these incentives in every other aspect of our life is well recognized human nature does not suddenly change when one gets a job providing law enforcement or adjudicative services such that you no longer need that discipline or incentive moreover in the system that I envision something I haven't talked about here yet and I won't dwell on it but in the system that I envision once again holding people who are in charge of law enforcement and adjudication to the same principles of justice as everyone else means that if they act unjustly they owe restitution or compensation to the victims of their injustice as well they are not protected by doctrines such as sovereign immunity that exists today that insulates people when I was a prosecutor I had sovereign immunity I could make all kinds of mistakes I could do things that might have abused my powers and I would not be personally civilly liable in damages for what I had done nor would the institution for which I worked cook county be civilly liable for these damages unless there are cases when it becomes so far so extreme so intentional that you might be civilly liable and you hear about civil judgments against government for those sorts of things it's very unusual a mere mistake a mere injustice would not be enough to hold me civilly liable whereas in this system law enforcement adjudication being subject to the same rules of justice as everyone else would be held civilly liable once again providing an important incentive to be careful and not to make mistakes as well as not to abuse your power okay the second principle of which is not the so that is the advantage of having the non coercive funding the non confiscation principle and when you think about how is it that money could be raised how is it the money could be raised it shouldn't be that much of an it shouldn't take that much imagination to figure it out I mean for one thing you could charge a price courts could charge fees for their services in fact there are private court systems today that charge fees for their services and in fact most commercial contracts in this country have what are known as arbitration clauses within them in which this is a consensual matter in which people choose to be governed by procedures rather than be governed by the government courts or the monopoly courts the monocentric courts we actually have more competition in this country today in this country we're not in this country we have a more competition in the world today than people commonly recognize they have an image in their mind a fiction in their mind that there is this vertical completely hierarchical legal system that goes up to the top and then you know because there's somebody at the top making sure everything works at the bottom everything's great it's an image that people have in their mind it isn't really what we really have what we really have is an extremely diverse set of institutions which I'll talk more about in a moment but it includes the idea of having private arbitration which as I say most commercial contracts have the reason why most commercial contracts have that today by being most commercial contracts I mean commercial contracts between big companies have stipulate private arbitration the reason they do is it's sometimes cheaper in private arbitration than to win your lawsuit in the government court system because it takes so long to win and you're never sure whether you're going to win or not going to win by the time you win it's too late arbitration is quick and even if you lose then you can go on you can move on you don't have to you're not tied up for six seven years you're tied up for six months you're tied up for less than six months you can go on and say okay fine I lost but let's move on something you're not able to do it's too late arbitration in the government court system and therefore I once read an interview with the then president of Sony who said it would be crazy for us to ever enter into a contract that didn't have private arbitration we would just be stuck in that other system there and since the 1940s there's been a statute in the United States that that allows this to happen and in fact prevents courts from interfering with it which is what the monopoly courts did for a long time That's why this right exists. It's a statutorily protected right, but it's a very important one. And what happens is, of course, is the arbitrators charged for their services, which is the reason I brought up the subject in the first place. I mean, these arbitrators are usually private lawyers or private judges, and sometimes they're companies, firms, and they simply charge a fee for the cost of their services. And, of course, the longer trials take, the more expensive it is, so people have an incentive to keep trials short to simplify things, to stipulate, to agree to all the evidence that they can agree about and only actually present evidence that's contested because they have to pay on an hourly rate for the use of the court system, and therefore they want to minimize the use of the court system, and that makes it easier for everybody to get into the court system that way. So it's certainly possible. I mean, there's a sort of a precept that you should live by when people question whether something is possible or not possible. And I know that when you're libertarians, people are always making that objection. They say, you might say, that which exists is possible. So if you can actually show that actually something actually happens now, then that should be at least some evidence that it's possible for it to happen. OK. All right, so now let me talk a bit about the competition principle, the idea that you can't put your competitors out of business by force. This is the part that I seem to have left my notes back in the room for. This is an application of the idea of freedom to contract. The idea that when you actually reach an agreement with somebody, then other people should not be able to put you out of business by force. I mean, just because Lysander Spooner was mentioned earlier, as many of you know, Lysander Spooner started a post office. It's one he's most well known for in his hometown of Athol, Massachusetts, and he was put out of business by prosecution because he violated the express mail statute that proclaimed to give the government postal system a monopoly. Something, by the way, that's not mentioned in the U.S. Constitution. There is a postal power in the Constitution, but not a monopoly postal power. There was a monopoly postal power in the Articles of Confederation, but it wasn't put in the U.S. Constitution, and yet the government has always claimed a monopoly, and in that case he was put out of business by force, by prosecuting. Each act of delivering a letter was considered a separate offense, so he was prosecuted all over the place and was pleading with the government to consolidate this in some way so that it could be litigated. He could make a constitutional challenge that would go up and he never was able to, he ran out of money before that was possible. There's actually some reason to believe he would have been successful in that litigation based on the judicial outlook at the time, but it wasn't. This is the same principle operating here. Unless you have specific permission of the monopoly, like you do in private arbitration with that statute I was talking about, you will be put out of business if you compete with them, particularly if you try to provide exactly the same service they're providing, and that is a violation of the freedom of contract, the freedom to contract that people should have with each other. Now, this would mean that if this were implemented, it would mean that instead of having what we would call a monocentric legal order in which there is the image of one center that controls everything, we would have a polycentric legal order. The term polycentric means many centers. It's a term that was originated or devised by a man named Michael Polanyi, a famous philosopher of science, and it was adopted from Michael Polanyi by Friedrich Hayek on the one hand and also Lon Fuller, who was a famous jurisprudential thinker on the other. In fact, some of the reasons why Fuller's jurisprudence and Hayek's are so similar is because they both were influenced by Polanyi in important respects, both with respect to the idea of polycentricity as well as tacit knowledge, as another concept Polanyi emphasized, that both Fuller and Hayek picked up in their writings. A polycentric legal system, I mean the idea of polycentricism is not simply that there are many centers. It's not the first part of it, but also that these centers have to adjust to each other. There's an idea of a mutual adjustment that takes place, so that if a change happens in one place, change happens and coordination happens as a result of a mutual adjustment throughout the system. In fact, the image that Polanyi talks about is, imagine like you had a grid of points, like a net hanging down with each individual point. If you pulled at one of those points, connected by, let's say fibers or something, connected by yarn, if you pull at one of those points, you'll find all the other points gradually readjust. The points nearer will readjust the most the relationships, but as you get distant, they'll also be slightly affected by the pull at one place. That would be what he would think of as a polycentric order. And that would be what we would have in legal system instead of the monocentric order that we currently do. Now of course, this seems to be a problem for many people because they think law and enforcement must be provided in a monocentric way. Lon Fuller wrote when he was arguing in favor of what he called a horizontal or reciprocal concept of law, he said, a possible objection to the view of law taken here is that it permits the existence of more than one legal system governing the same population. The answer is of course, this is Fuller still writing, the answer is of course that such multiple legal systems do exist and have in history been more common than unitary systems. Once again, that which exists is possible. Until recently, the Western legal tradition was largely polycentric and competitive in nature and to a large degree still is. And this is a point that was extensively chronicled in a very important book by a man named Harold Berman. Harold Berman was also a Harvard Law School professor. I actually had him for legal history myself. I took a seminar from him. He's now a professor at Emory Law School after his retirement from Harvard and he wrote this very, very important book called Law and Revolution published by Harvard University Press. I think it was around 1983 it came out, but I'm not sure, maybe 1986. And in this very long book, he talks about the origin of the Western legal tradition and one of the aspects of the Western legal tradition that makes the West different than the rest of the world. And by West of course, he's speaking of Europe now because this all happened before there was anything in the United States, before there was anything in America. And one of the aspects that distinguishes the Western legal system is what he calls legal pluralism. And here's what he says about legal pluralism in his book, Law and Revolution. Legal pluralism originated in the differentiation of the ecclesiastical polity from the secular polities. Lehman, though governed generally by secular law, were subject to ecclesiastical law and to the jurisdiction of the ecclesiastical courts. Ecclesiastical courts, ecclesiastical law means church-made law. It's the church courts. Like you would have over there we saw yesterday in that separate nation state we went to. What about local courts? In matters of... Okay, they would be subject to ecclesiastical law and the jurisdiction of the ecclesiastical courts in matters of marriage and family relations, inheritance, spiritual crimes, contract relations where faith was pledged, and a number of other matters as well. Conversely, the clergy, though governed by canon law, were subject to secular law and to the jurisdiction of secular courts with respect to certain types of actions, certain types of crimes, certain types of property disputes, and the like. Secular law itself was divided into various competing types, including royal law, feudal law, menorial law, urban law, and mercantil law, each one represented by different actual systems of adjudication. The same person might be subject to the ecclesiastical courts in one type of case, the king's courts in another, his lord's courts in a third, menorial courts in a fourth, a town court in a fifth, a merchant's court in a sixth. This all happened. This all was in existence for centuries. And as Berman also makes clear, a multiplicity of jurisdictions had a clear effect on the potential for enforcement abuse, which was the subject of this lecture. This is again Berman. The pluralism of western law has been, or once was, a source of freedom. A serf might run to the town court for protection against his master. A cleric might run to the king's courts for protection against his lord. A cleric might run to the ecclesiastical courts for protection against the king. And as I was already telling you, to some degree, we have that system already. We have a system of multiplicity of jurisdictions. And I'm just going to tell you a little bit about that, how we resolve conflicts today, and then I'll take some questions. And then I'll have about 10 or 15 minutes for questions. We now have, let's say we say we. In the world have many legal systems that are not governed by some super legal system on top of it. They're governed by some kind of mutual contractual relationships, what we call treaties that exist between legal systems. These are the legal systems of different nation states. So you already live in a world in which there are multiple legal systems. In addition, within, for example, the United States, we have 50 legal systems. 50 different legal systems. To some degree, in competition with each other. It's actually more diverse than you might imagine, because we have an image of hierarchical pyramid up to a Supreme Court that makes all the decisions. Well, in fact, Supreme Courts, generally speaking, do not take every appeal. In fact, an appeal is something you have a right to. You have no right, except in very exceptional circumstances, to appeal to the Supreme Court of the United States, or to the Supreme Court of your individual state. You have no right to appeal. What you have is a petition for certiary. You have a petition to ask them to accept your case. And they choose to accept it or not, and they only accept a handful of cases every year. What you have in the U.S. is a right to appeal to the next level up, which in the U.S. in the federal system is the Court of Appeals. You have a right to appeal once up. Of course, there are dozens and dozens of Courts of Appeals. And within each state, there are dozens and dozens of Courts of Appeals. You have one right of appeal, yes, to a final decision maker who is not a step up, but not a single decision maker. It's not the highest one, it's just another one. So we already have a diversity of jurisdictions. Well, how do we solve the two problems that must be solved if you have a diversity of jurisdiction? And what are those two problems? The first is, which court system hears the case when more than one court system might hear the case? How do you decide that problem? Well, we resolve that problem with a body of law that note that you've taken law school in your first year of law school during the Civil Procedure. And within the course called Civil Procedure, there's a concept called jurisdiction. And there are principles that have evolved to handle the problem by agreement, by convention, that under certain circumstances this court will hear it and other circumstances the other court will hear it. Some of the most obvious ones is the court in the location in which the incident happened is the court that would normally hear the case. But assuming you have a body, so we have a body of law, it's decided it would be counterproductive for them as well as for everybody else. They therefore resolve to have these decisions decided by these general principles. You have these decisions made. Once it's decided which court will hear the matter, that doesn't tell you which law will govern. That's the second question that must be decided. It isn't automatically the case that just because one court hears the matter its law will govern. You have another body of law that's been in existence for centuries called conflict of laws. In the conflict of laws course you will learn which law governs when more than one law might govern. Oftentimes this is done by contract. In the very famous case of Texaco vs. Penzoil, very famous multi-billion dollar dispute involving a tortuous interference with contracts claim, because it involved a contract, one of the pressure issues was whether there was a contract to interfere with and in order to decide whether or not there was a contract, Texas courts because that's where the case was brought although part of the case was actually in existence in Delaware at the same time believe it or not. There was part of the case in Delaware, part of the case was in Texas but Texas courts applied New York state contract law in Texas courts to figure out whether there was a contract. The reason it did so is because the contract stipulated that New York law would govern if there was ever a dispute so the courts followed that and applied New York law very poorly by the way but they still applied it in that case. The fact that the case exists is possible to exist and we currently have a problem we currently have the situation of competing jurisdictions and therefore they are handled in this way by competing rules and this is the very same way I think it would handle. Now the only change that would come about as a result of the adherence to the non-competition principle and non-confiscation principle is simply that the jurisdiction that you belong to would be a matter of choice rather than a matter of where you choose to live. Now you rent an apartment or you buy a house and you get the jurisdiction that goes along with it like you get the government schools that go along with it that's just a tying agreement the two goods come together there's no reason why that has to be the case there's no reason why there's not a particular advantage to that instead of saying you join one of these things you choose to join one in the very same way it used to be you would have a certain long distance carrier if you were lived in a certain place now you can pick your long distance carrier it hasn't been a terrible terrible thing and it seems quite feasible to do that so that's really the only difference which one you belong to will be based on which one you choose to belong to rather than where you happen to live and then all the same ways of resolving jurisdictional conflicts would exist in this system as exists now so I know that I've used up a lot of time getting to this point and I would like to have spent more time on the practicalities of it but I believe I have five minutes or so to take questions about how this system would work