In this episode I talk with UChicago and NYU law professor Richard Epstein. Professor Epstein is a prolific legal scholar who is most famous as a classical liberal/libertarian theorist of the common law. However, as much as Epstein’s ideas are influenced by enlightenment thought and law and economics, his true love in law, as he’ll tell anyone, is Roman Law. In this episode we talk a bit about how why Roman law worked, how it eventually fell apart, and a bit about Epstein’s interest in sociobiology as a way to explain the foundations and limits of legal norms.

In this episode I talk with the political philosopher Kevin Vallier about a variety of intellectual projects that have come out of his journey as an Orthodox Christian defender of public reason liberalism.

We first talk a bit about Vallier’s intellectual background with Rothbardian anarcho-capitalism and his conversion to the public reason liberalism of his dissertation advisor, the late Jerry Gaus of the University of Arizona. We then talked about two of Vallier’s most recent books, All the Kingdoms of the World, a historically-informed philosophical critique of Catholic integralism and other illiberal projects in political theology, and Trust in a Polarized Age, an empirical test of claims about the social consequences of a liberal order. We close by talking about Vallier’s most recent work on modeling the politics of AIs.

This discussion was recorded in late 2025, so much of it is already out of date. Interested listeners should follow Kevin on Twitter/X for more up to date information on his work!

In this episode I talk with Alison LaCroix, an intellectual historian and Professor of Law at the University of Chicago Law School. She writes and teaches widely, but in this episode we focus on a long running theme in her work: the history of different conceptions of federalism in American law.

Professor LaCroix’s first book, The Ideological Origins of American Federalism was about the debates around federalism in the founding era and early decades of the republic. Her most recent book, The Interbellum Constitution, is an even larger project, seeking to synthesize the largest constitutional debates and conflicts from roughly the War of 1812 through the Civil War. The book has a wide enough scope to cover both the familiar and unfamiliar legal stories of the era, but it would be worth reading even just for its wonderfully original coverage of two of the most dramatic moments in constitutional history, the nullification crisis and the Cherokee nation’s fight to block its removal from Georgia. We talk about all of this and more.

In this episode I talk with the great economist and legal theorist David Friedman. Friedman is perhaps best known for his advocacy of anarcho-capitalism, but he has made contributions in many areas of law and economics. In this episode we talk primarily about his recent book of comparative legal scholarship, Legal Systems Very Different From Ours (link https://www.amazon.com/Legal-Systems-Very-Different-Ours/dp/1793386722). It is one of my favorite books, and a core inspiration for this blog and podcast.

Friedman wanted to end our conversation talking about his science fiction and fantasy writing, so I think it is fair to describe him as a kind of intellectual wizard with three main powers, as I see it. First, he has Chicago price theory in his blood and thus has great intuitions for describing the incentive structures and equilibrium conditions of different institutional arrangements. Second, he is a devotee of history and science fiction, so has a well trained mind for constructing and reconstructing whole worlds, real or imagined. And third, he exudes a joyful kind of intellectual humility. Both in his normative and his descriptive work, he goes out of his way to explain what he sees as the best alternative theories to his own. He’s always revising his ideas, which he seems to hold very loosely.David Friedman on Governments, Legal Systems, and Fictional Worlds

I’ve not posted in a little bit because I have been working on getting a podcast/YouTube channel started to explore the ideas at the heart of this blog. Today, I’m releasing my first episode, an interview with Bryan Caplan, one of my favorite public intellectuals.

Bryan is an economics professor at George Mason university and he’s probably well known to anyone who would be reading this blog. He’s a libertarian economist in the UChicago/GMU tradition, though as an avowed non-conformist, he would not identify as part of any movement or school. He’s incredibly productive and widely read across history, philosophy, and social science and he’s someone you can ask anything.

In this episode we talk about some essays from a recent volume of his selected works called Pro-Market and Pro-Business: Essays in Laissez-Faire. These essays cover a range of topics, but I was particularly excited to ask Bryan about his ideas on the concept of “state capacity.” Bryan is surrounded by smart economists at GMU who take this concept seriously as a driving force in history, explaining which societies developed hundreds of years ago, and maybe which societies have promising futures today. He remains firmly unimpressed by these ideas.

Produced by Helen LaGrand; Music by Yasha Mostert

Produced by Helen LaGrand; Music by Yasha Mostert

I’m pulled in different directions by this book. On the one hand, I learned a great deal from it. On the other hand, I found its core argument (as best I could make it out) to be thoroughly misguided.

The Fun Parts First

Armitage’s book is most enjoyable for its sections on early modern Europe. The chapters on the 17th and 18th century cover a rebirth of European political theory of civil war, and the birth of the concept of revolution. These are both very neat moments and Armitage gives the reader a lot to think about.

Armitage frames these two moments in purely intellectual terms. For the rebirth of civil war theory, he gives a typical story of classical learning that was lost during the middle ages and reemerged after the renaissance. This seems right, but he doesn’t really discuss how this intellectual history fits in to the long arc of state development in Western Europe. The early modern era was the perhaps the first time that non-Byzantine Europe had states approaching Roman levels of institutionalization since the empire fell. So while the early moderns surely needed Roman sources to have the exact conversations they did about Civil War, there was also an underlying political reality that made it make sense to bring these discussions back. Early modern English writers probably looked back on the Barons’ Wars as “civil wars” partly because they now had the term handy, but they also might have found the term more useful than their predecessors would have. Early modern writers might apply a Roman institutional concept more easily than would have people in the more amorphous state structure of Plantagenet England.

After the great burst of 16th century thought about civil war there came the birth of the concept of “revolutions,” and then eventually “revolution” in the singular. Armitage’s coverage of this genealogy is exciting and suggestive, but it again raises the question for me of whether the history of this specific concept that is used to describe a certain kind of state dissolution and rebirth should be primarily understood as the intellectual reaction to the development of a certain kind of state. A society probably needs a well institutionalized state to meaningfully be described as having a revolution. You need some minimum core of impersonal state power and private organizations to even imagine seizing power or rapidly transforming society through revolutionary action. Of course, many famous revolutions took place in societies where the impersonal state had only loose control in a lot of territories. In those revolutions, it might be the case that much of society experienced the “revolution” more as state building than state seizing. But still, it seems like there needs to be some impersonal core to seize for us as observers (and usually for contemporaries) to see something as a revolution.

The Frustrating Parts

Armitage seems to be animated throughout the book by two outlooks which I think are often misguided. The first I’ll call “elite intellectual primacy,” and the second has been called “global legalism.”

Elite Intellectual Primacy

Elite intellectual primacy (I’m sure someone has a better name for this) is the idea that in causal descriptions of politics, ideas come first, particularly the ideas of the intellectual and political elite. This seems wrong to me, at least as strong generalization. I tend to think that elite intellectuals are very often catching up to events, and not leading them. I think there are big material, demographic, and cultural forces rolling around in society that produce changes in political life, and most of the intellectual record we have of great political thought is smart people reacting to those things and trying to explain what is already under way. I tend to think that elite political ideas only really have causal force during punctuated windows where cultural or institutional changes are in the offing and persuasive or rousing intellectual work (propagated through the right people) can help certain cultural or institutional forms beat out plausible alternatives.

This is of course, not to say that elite ideas don’t matter. The moments where elite ideas are causally most relevant are incredibly important and hinge-y times in history. I think there is plenty of room for legitimate debate about how often and how much elite ideas have causal influence on political outcomes and I don’t think everyone who puts a lot of stock in the power of elite ideas is an idiot. But I do think you can commit yourself to intellectual explanations to a completely implausible degree, and that commitment is what I want to call “naive elite intellectual primacy.”

The way that I see naive elite intellectual primacy present itself in Armitage’s book is that he seems to think that “civil war” – the phenomenon out there in the world that has killed millions of people – needs to be primarily understood as an intellectual phenomenon. He genuinely seems to committed to some version of the claim that people are getting killed because of some causal influence of the very idea of civil war, the way that one might claim people have been killed because of the ideas of Nazism and Marxism. I’m not really sure how else to interpret this passage (particularly the last line):

[W]e should be cautious about assuming civil war is an inevitable part out our makeup–a feature, not a bug, in the software that makes us human. For that would be to doom us to suffer civil war ad infinitum, never to reach Kant’s promise of perpetual peace. To unsettle the notion that we are condemned to interminable civil war, rather than destined for perpetual peace, I here bring historical tools to confront the challenge of civil war. Over the course of this book, I show that civil war is neither eternal not inexplicable. I argue that the phenomenon is coterminous with its historical conception, from its fraught origins in republican Rome to its contested present and its likely no less confusing or controversial future. It has a history with an identifiable beginning, if not yet a discernible end. A historical treatment reveals the contingency of the phenomenon, contradicting those who claim its permanence and durability. It is my aim to show that what humans have invented, they may yet dismantle; that what intellectual will has enshrined, an equal effort of imaginative determination can dethrone. (p. 11)

Perhaps part of the explanation of how Armitage ends up advocating for this very strange position is that he makes too much of the relationship between “revolution” and “civil war.” While I am even resistant to a primarily intellectual explanation of the phenomenon of “revolution” in human history, I will readily concede that there a case to be made that the concept is so ideologically loaded that you need to offer some of its intellectual genealogy to explain the way we use the term, even if you want to give a basically essentialist definition of the underlying concept. There have been so many powerful strands of revolutionary myth-making throughout history (American, French, liberal-nationalist, Marxist, anti-colonial, etc.) and some of these strands are still around, so you have to at least acknowledge that they frame our discourse (e.g. why we don’t we refer to the movements that ended communism in Eastern Europe as revolutions).

But the same is not true of civil war. Armitage seems to think that the lack of great speeches and books theorizing civil war is a tough puzzle for the intellectual historian. But I think it basically just reflects that “civil war” has never been a concept with romantic mass appeal. This is probably because the ones that get romanticized tend to be called revolutions. I think the solution to Armitage’s puzzle is just to accept that “civil war” as a concept is a lot closer to a natural kind than “revolution” is. “Civil war” is probably about as cleanly recognizable and definable as the necessarily related concept of “the state.” Armitage even seems to tacitly acknowledge this, often referring to civil war as “war within states,” which is a pretty good definition!

Global Legalism

I find the idea that civil war is kind of ideology that we need to unlearn so strange that it is hard to know how to respond to it. But Armitage’s second frustrating commitment, his globall legalism, is much easier to pin down and respond to. Global legalism is the idea that international law is morally very good and potentially very powerful, and that the political project of making it much more binding is highly feasible and ought to be pursued.

Global legalism often seems to come together with elite intellectual primacy. This makes sense to me, because elite intellectual primacists tend to be those people most likely to think that, as a descriptive matter, intellectual elites run the world. Given that assumption, it follows that some of our main normative political goals should be to make sure that the intellectual elites are good and have good ideas. To a strong contingent of people with this view, the small group of secular elite moralizers who do the writing and publicizing of public international law seem powerful, and their big ideas seem morally solid.

I hope to write more about the deep problems with global legalism at another time, but for now I will just say that I think Eric Posner and Jack Goldsmith have given it an all-time-classic definitive take down. Their arguments against it can be presented pretty briefly.

• Multilateral international law is only stable and “binding” when it deals with simple coordination problems.

• In terms of real cooperation problems, international law can only help to facilitate bilateral competition. Multilateral cooperation is simply too unstable to be solved structurally. It never has been maintained through international law, and almost certainly never will be.

• International legalism as a normative view is also wildly implausible. It gives a veneer of enlightened cosmopolitanism to what is ultimately a system of state privileges. But most states in world history (and the present!) are gravely predatory and oppressive. It might be prudential to respect their power, but it is not morally desirable in itself.

Armitage’s brand of global legalism comes through in the book most strongly when he presents as his main practical takeaway that we should find a way to regulate civil wars. He presents this task as a question of intellectual effort on behalf of the world’s legal and political elites. He says a number of times that tons of people’s lives hang on whether we get this figured out. But he never really explains what the mechanism would be by which “we” would regulate civil war and end these deaths. The closest he comes is to make clear that he thinks that there was a succesfful intellectual and moral movement that gave us the laws of interstate war, and that we can presumably recreate that for civil war.

Of course, for the average political scientist of a realist bent, the fact that there are laws of war that are often upheld is not an example of a triumphant “regulatory” success. Instead, the existence of moderately binding laws of war mostly just reflects the fact that states generally expect not to annihilate each other when they go to war. This means that there are still opportunities for ongoing bits of coordination and cooperation, even in the context of a shooting war. Much of the nastiness of civil war reflects the fact that belligerents often expect that the war will end with some parties ceasing to exist as political units capable of enforcing promises. This makes it difficult to effectively commit to refrain from doing horrible stuff to each other’s soldiers.

The authors sell the book as a really grand and sweeping narrative of all of human history, but then the empirical scope is actually quite narrow once you get started; it’s pretty much all England, France and the United States. If the theory felt really clearly validated by these cases, that would be one thing, but as I read on I felt that I knew less and less about what the theory even was.

I think it’s fair to say that NWW’s driving idea behind the book is that all societies that aren’t basically some form of liberal democracy live under some system of predation from a dominant coalition of violent actors who buy each other off from starting civil wars by maintaining each other’s predatory privileges. That’s a neat and generative idea, but what it means in practice is incredibly mushy, because NWW obviously have to fit an insanely wide number of cases into that same concept. They have to say Babylon and early 2000s Mexico both fit this mold.

To differentiate within these “natural states” they talk about different kinds of institutionalization that can happen. The state itself can become less personalized. Public law can become more binding. The military can be centralized and brought under political control. That’s all true, but at that point, what are we even talking about? Isn’t a society with an impersonal state apparatus under a binding regime of public law with a tightly controlled military an incredibly different thing from a world where there’s a loose coalition of nobles behind a king? How is the shadow of civil war possibly similar between those two cases? Maybe I just didn’t get it, but this felt less plausible to me as I went.

Particularly disappointing for me (though perhaps not for the average reader) was the coverage of political dynamics in open access orders. NWW acknowledge that open-access orders can fall apart, but they give us very little that would predict when they would or wouldn’t and thus the explanation of why they persist feels almost completely lacking. Several times they seem to say that the underlying glue is that small coordinated interests have to compete with each other through elections and often meaningfully defeat each other. They keep saying “Mancur Olson’s Rise and Decline of Nations Theory would have predicted the US would be dead right now!” The irony of course is that they wrote this book right at the time that sharp people like Ed Glaeser started saying “wow Mancur Olson’s Rise and Decline of Nations Theory is such a good explanation of why the US is dead right now.”

And those kind of complaints are just about US losing its state capacity and optimal institutions for growth! There’s basically nothing to be said about the risks of mass politics and democratic backsliding. They just say that open access orders are stable because people trying to attack them are unpopular and lose elections. That’s clearly only a little bit true! We’re going to figure out soon enough how true it is in the US. Sadly this book does not give us many tools for thinking through what to expect.

I apologize to the two readers out of my regular three who really hate to hear Trump-induced hyperventilation, but for the next while at least, this blog is going to become a place where I try to give some structure to my spiraling thoughts. But, with that said, I don’t actually plan to leave behind everything about the old focus. Indeed, the thoughts one spirals on while doom-scrolling twitter these days are all about statecraft and public law; so, it might not really have to change much! In fact, the first book that I want to discuss during my extended Trump meltdown is one that I expected to write about all along: North, Wallis, and Weingast’s Violence and Social Orders.

I didn’t know what to expect from this book. Despite the very high status of at least two of its three authors, I don’t get the sense that very many people loved it, or even read it at all. I’ve only ever heard GMU people talk about it, and even there, the reception has ranged from raving fandom to afterthought dismissal. But I loved the EconTalk episodes where Weingast talked about it, and I’m a sucker for grand theories. And North, Wallis, and Weingast’s theories are quite grand! The book offers (to quote the subtitle) “a conceptual framework for interpreting recorded human history.”

What’s this new conceptual framework? They want to say that there are three kinds of social orders that humanity has lived in. The first is hunter-gatherer groups. They tend to be egalitarian and have nothing that looks like a state. The second is a “natural state” or a “limited access order.” These are communities where there is some coalition of powerful people that limits internal and external threats and coerces rents from the rest of society by limiting their freedoms. These limitations range from holding people in bondage to less onerous impositions like merely limiting their ability to form organizations or access tools for social commitment, like courts. NWW say that every human who wasn’t a hunter-gatherer before roughly the year 1800 lived in some sort of limited access order. They say about 15% of humanity since 1800 has gotten to live in the third and final kind of social order, the “open access order.” These provide a lot of civil and political rights to citizens and generally allows people to form private organizations and use courts and what not. They also tend to be rich.

So far this doesn’t amount to a new conceptual framework, but what makes it interesting, as suggested by the book’s title, is the role of violence in the theory. NWW say that all of these types of orders exist because they are stable ways that societies overcome the problems of internal violence. Gesturing at Robin Dunbar’s famous ideas, they argue that nothing like a “state” emerges in hunter gatherer bands because kinship and direct interpersonal relationships are strong enough to maintain peace in such a group. Beyond that size though, societies can develop different internal groups with violent capabilities that might be wiling to fight each other. Because fighting is incredibly costly, these groups are willing to set up deals with each other where they get access to different privileges to extract rents from the weaker portions of society. The value of any group’s privileges should be proportional to their violent capacity within the society. If relative power levels change for some reason, privileges have to be renegotiated. If bargaining breaks down, civil wars happen.

This picture of the forces that produce the natural state has a couple of things going for it. The first is just the conceptual point that it has the capacity to explain more than those theories of the state that just posit a stable group of people in control of things. The simple Weberian concept of some entity that has a monopoly on violence in a society assumes away a lot. For instance, unitary actor theories like my beloved stationary bandit model don’t have a great way of integrating stories about conflicts between kings and lords. NWW’s slightly more complicated picture of violent factions constantly renegotiating a grand political bargain gives a more granular story of how various dictatorships and monarchies have actually worked throughout time (though of course, this just pushes the assumptions a little deeper down. E.g., where do these violent factions come from and how are they ever stable?).

The second interesting thing about this framework, as NWW are fond of pointing out, is that it gives a simple (though not wholly original) way of explaining why international development work has such a poor track record. The only way that we have known for countries to become really rich is for them to have strong property and contract rights, that is, for them to be some kind of open access order. The governments and NGOs of rich countries often earnestly attempt to promote transitions to open access orders by promoting democracy and institutional reforms in poor countries. But on NWW’s theory, one should assume that the privileges and rents one observes in a poor country represent payoffs to various groups to keep them from starting a civil war. You can’t just say “stop making the payments!” without having a good idea for how to keep a civil war from happening. If civil war really is a credible threat, then even the people getting absolutely hosed in the current political order are likely to support the status quo, because a civil war would leave them even worse off. After all, their low position in the current order reflects the low capacity for violence. War would not go well for them!

So this basic model gives us a lot to think about civil wars and the persistence of dictatorship. But apparently, NWW also plan to give some thoughts about how the transition from a closed access order to an open access order has actually happened and about the ways in which an open access order can be unstable. To circle back to the Trump panic that I started this post with, that is what I am here for at this point! NWW wrote the book at a significantly less pessimistic moment in American history, so their focus was decidedly more on the question of how a society becomes open access, but surely they’ll have to offer some thoughts on the 1930s along the way. Once I’ve digested those points, I will report back to the three of you.

What I’m most interested in when reading an account such as theirs is its treatment of the “poly-legal” world that existed in different forms for many hundreds of years in Europe. By the poly-legal world, I mean the world in which there were different court systems applying different rules that cut across state boundaries, such as they were. The authors think that this world was at best a quaint curiosity and at worst an inefficient mess. They also clearly think that its end was an inevitable consequence of the forward march of progress. Because the only “forward march of progress” that they clearly identify is the rise of the powerful nation-state, which is something I’ve got mixed feelings about, their story raises more questions than it answers for me.

Their story begins with the fall of the western Roman Empire and the Roman legal world with it. The next several centuries get only a cursory treatment of the very simplistic “Germanic Dark Ages” style.

With the fall of the Roman Empire in the West in AD 476, Roman law lost its dynamism. Cruder, less sophisticated versions of the Roman civil law were applied by the invaders to the people of the Italian Peninsula and other parts of Europe. The invaders also brought with them their own Germanic legal customs, which, under their rule that the law of a person’s nationality followed him wherever he went, were applied to themselves but not to those they had conquered…Over the centuries this produced what Europeans still refer to as “vulgarized” or “barbarized” Roman law. (p. 8)

They don’t tell us what exactly was unsophisticated about this law. They instead want to quickly turn to what they see as the restarting point of history with the rediscovery of Roman law.

As the Europeans regained control of the Mediterranean Sea, an extraordinary period of feverish intellectual and artistic rebirth called the Medical Renaissance…began and an intellectual and scholarly interest in law reappeared…’the revival of Roman law’ is generally conceded to have had its beginning in Bologna, Italy, late in the eleventh century…The first modern European university appeared at Bologna, and law was a major object of study. But the law that was studied was not the barbarized Roman law that had been in force under the Germanic invaders. Nor was it the body of rules enacted or customarily followed by local towns, merchants’ guilds, or petty sovereigns. The law studied was the Corpus Juris Civilis of Justinian. (p. 9)

As the final lines of the above quotation make clear, Berryman and Pérez-Perdomo think that the various systems overlapping in Europe in the high middle ages did not merit a lot of kind words. The implication is perhaps that European societies were imperfectly ordered by legal means because the laws were not very well thought out and because people would be confused which ones applied to them. They keep this theme going as they explain the supposed process by which the diffusion of Justinian Roman law through universities caused that more sophisticated system to eventually conquer medieval institutions.

The distinctions between different types of law were [not] clear. Royal courts that were supposed to apply royal laws were staffed by university-educated jurists who were trained in and naturally favored Roman law. Seigneurial courts that applied customary law also felt the influence of educated jurists. Ecclesiastical courts were staffed with canon law judges who were university educated in both canon and Roman law. There was a tendency of overlapping jurisdiction. Ecclesiastical courts frequently exercised jurisdiction in family law and succession matters, as well as in certain types of crimes. (p. 12)

Their explanation for how these different legal systems eventually fell away thus starts with the claim that Roman law first homogenized them. That’s an interesting thought, and has a ring of plausibility considering that there might naturally be pressure for different systems to apply more similar rules over time. Their basic explanation is just that kings paid for universities and eventually university grads filled all the legal positions and got their way because they had a flashier and smarter system of rules to work with.

But in their account, the real end of the poly-legal world wasn’t the rebirth of Roman law, it was what Berryman and Pérez-Perdomo call “the revolution.” By “the revolution” they seem to mean every big intellectual change having to do with politics that took place in modern Europe. They see a grand unity there, describing it as “a revolution that took place in the West in the century beginning with the year 1776” where “certain long-established patterns of thought about government and the individual were finally overcome, and newer ways of thinking about humanity, society, the economy, and the state took their place.” (p. 15)

This replacement of thought patterns changed everything about European political and legal life.

The revolution was…a great step along the path toward glorification of the secular state. Henceforward the temporal allegiance of the individual would be owed primarily to the state. Feudal obligations and relationships were abolished. Religious obligations lost most of their remaining legal importance. The ecclesiastical courts lost what little remained of their temporal jurisdiction. Family relationships were now defined and regulated by law (i.e., by the state). Local governmental autonomies were abolished; guilds and corporations were deprived of regulatory power. Separate legal traditions were merged into a single body of national law. The legal universe, formerly very complicated, was suddenly simplified: henceforward it would in theory be inhabited only by the individual and the monolithic state. (p. 18)

The more I read Berryman and Pérez-Perdomo on “the revolution” the less I think they have something to say. They offer the concept up as if it is going to help them explain what happened to the old world order. But are they really saying more than “well, everything changed, so it makes sense that legal stuff changed too”? Is their account supposed to be primarily intellectual? Once “certain patterns of thought” were “overcome” all this other stuff fell out naturally? What even are the patterns of thought that could explain this much change on their own? Is their claim, “people stopped worshipping God and started worshipping the state” and thus guilds had to lose their power?

I’m pretty open to the force of ideas in history, but this kind of narrative leaves me feeling that I haven’t learned anything. Faced with the question of how and why this complicated political and legal world disappeared it seems to just say “well, eventually people realized that their institutions were backwards, and they changed them.”

Was Olson’s Idea Original?

In a word, no.

The core of Olson’s theory is fully anticipated by the German sociologist Franz Oppenheimer in his 1908 book The State. The State is an absurdly confident bit of turn-of-the-century social science. Much of it doesn’t hold up at all, but the opening chapters on early state formation are fun and thought provoking and they do indeed give us something pretty close to Olson’s theory.

Oppenheimer thinks that the prehistoric world consisted of three groups of people: hunter gatherers, nomadic herdsmen, and fixed field cultivators. For reasons not entirely clear to me, he thinks that nomadic herdsmen would most easily develop wealth differentials and thus status hierarchies. He also thinks that they would tend to get good at warfare because they could build large groups with mobile food sources.

Nomadic herdsman were thus, in Oppenheimer’s view, naturally driven to become roving bandits. When they would go out raiding they would have limited success fighting hunter gatherers, because huntsmen didn’t have much to tie them down and could easily run away into hills and forests. Fixed field agriculturalists by contrast had to defend their land. were basically sitting ducks and nomads could easily come and wipe them out and take all their food stores.

Oppenheimer then describes the same mechanisms of state formation as Olson, without the language of public choice economics. He says that after some amount of raiding, nomadic groups figure out that they can make more money by subjugating the fixed-fielders rather than merely pillaging them. They set up institutions and rituals to regularize their theft as taxation and they call themselves kings. He adds some confusing detailed steps whereby the purported social hierarchies within nomadic tribes make this easier, but the basic model is the same as Olson’s.

Does the model require roving pillagers?

After reading my last post another friend asked me whether I thought the distinction between the fixed location of the stationary bandit and the mobility of the roving bandit was significant. Do roving bandits have to literally be people on the move? Oppenheimer certainly thought so, but I don’t think Olson’s theory turns on that, and it turns out the archaeological record doesn’t support it. Anthropologist Robert Carnerio’s influential 1970 paper “A Theory of the Origin of the State” is a useful contrast here.

Carneiro says that states arise where there are geographically circumscribed areas that provide greater than subsistence potential for a large number of small villages and clans. In such a situation, little villages and clans fight with each other for greater portions of land, and the ones who end up good at fighting ending up subjugating the people around them. Because the area is geographically circumscribed, the subjugated people don’t have an easy option to run away. They have to stick around and accept their tribute status.

This view is fairly easy to graft on to Olson. Basically, you just need to postulate that in the earliest state formation contexts, the “roving bandits” were probably just guys from the next village over. These roving bandits weren’t Oppenheimer’s nomads. Instead they were other fixed fielders who had developed the tools and inclinations to go pillage their neighbors. It still makes sense that these people will eventually realize that enslaving their neighbors can make them more money than merely robbing and killing them would.

The way that Carneiro describes this dynamic fits the roving/stationary bandit model well enough, but he also highlights what international relationship scholars call the “security dilemma.” The settlers of a circumscribed productive area know that their neighbors might one day come and kill them for their stuff, so they might reasonably respond by developing tools for violence. The reciprocal impressions that your neighbors are preparing for violence and could be willing to murder you can lead to a spiral where conflict becomes basically inevitable. Once a certain amount of fighting between villages gets going, there could be a lot of selective pressure for the best fighters to win out and end up subjugating the whole territory.

How this all lines up with Olson’s story about the under-provision of public defense is unclear. Perhaps the views fit comfortably. Perhaps the security dilemma really becomes a problem once settlements become big enough that they’re hard to defend and there are big and poorly defended prizes for people to go out and raid. Of course, this could happen differently in different contexts, so there does not need to be a universal narrative.

How well does this line up with the archaeological evidence?

I can’t answer that question generally. However, I can compare Olson to the one recent famous popularization of early state archaeology that I’ve read: James Scott’s Against the Grain.

States came long after Sedentary agriculture

Scott wants to dispel any lingering myths that states arose through cooperative agreements that people needed to put together to make agriculture work. He points out that Mesopotamia was a lot less arid between ten and five thousand years ago and that agricultural settlements did not require any great irrigation works. But more importantly, we have no evidence of anything like an early state for the first few thousand years of agricultural settlements in the area.

Scott highlights that these settlements grew in population faster than the mobile groups of mixed foragers, herdsman and cultivators around them. However, the fertility edge was slight. Fixed field cultivators were exposed to epidemic disease, perhaps for the first time in human history, and paid a horrible price in mortality for it. The fixed fielders also probably were not taking in significantly more calories, perhaps less per unit of work even. What seems to have given them the fertility edge was merely that they didn’t practice abortion and infanticide to nearly the level that mobile tribes did.

This seems to line up with Olson’s claims. Agriculture led to the state only insofar as it it made large settled population centers possible. There’s nothing too surprising about that taking a few thousand years.

Early States Were Fragile Extraction Machines

Scott’s big thesis in the book is that the most developed capacities of early states were to requisition grain and enslave people. One of his favorite theories is that grain is so much easier for government agents to see and collect that states emerge more easily around grain growers and prefer to force people to grow grain when they can. He loves contrasting grain farmers to foragers and herdsmen who evade state structures much more readily (here he echoes Oppenheimer, but sadly like Olson, he doesn’t cite him!).

Scott wants to hammer home the fact that early states were quite fragile though. They seem to often have been overwhelmed by violence from within or without and they often succumbed to epidemic disease or environmental collapse. He generally thinks that life outside of states was much better and that more people have lived outside of state control over the last few millennia than most of us ever realize because all our history is written from a statist perspective.

This might seem like it is in tension with Olson’s claim that state formation would generally be an improvement for vulnerable agricultural settlements. Olson makes much of the fact that you’d rather live under a stationary bandit than free in a world of roving bandits. If states are so bad and people avoided living in them if they could, then maybe Olson has something wrong.

But here I think we see some of the limits of Scott’s brand of myth inversion. He gets himself very worked up about how great it was to live outside of state structures, but when he describes the “Golden Age of the Barbarian” as he calls it, it turns that most of what he thinks was so great is that there were a couple thousand years where roving groups of warrior herdsmen could raid the fringes of agricultural states. He traces this from Germanic raiders around the Roman periphery up to mid 19th century tribes like the Comanche on the western edge of the United States. He loves quoting lines from famous pillagers saying things like “raiding is our agriculture.”

It thus seems that all Scott is really saying here is that he doesn’t respect stationary bandits, and that he would rather be a roving bandit than a peasant. But this seems more like a matter of taste, and not actually a disagreement with Olson. There’s nothing in Scott that implies that conditional on being a fixed field-cultivator, it’s bad to live in a state.

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Kings Arise When Voluntary Arrangements Can’t Keep You Safe

Olson is perhaps most famous for his work on the provision of public goods. That is the core topic of his influential book The Logic of Collective Action. One of the big insights of that book is that as group size increases it becomes harder to provide public goods. In bigger groups you enjoy less of the fruits of your labor in public goods provision, so you do less of it. Someone might reasonably clean up the village square on their own, but no one spends their Saturday trying to clean up Times Square.

One of the highest value public goods for any society is defense from external threats. Olson’s theory of collective action would suggest that, as with any other public good, smaller groups are better able to make voluntary arrangements to provide this for themselves. As group size increases though, defense might become under-provided and groups might grow in vulnerability. Olson thinks that this happened during the agricultural revolution and led to a massive change in human political behavior.

Olson notes that anthropological evidence seems to show that hunter gatherer groups rarely exceed one hundred people. If they get larger they tend to split to get back down to something between 50-100 people. Groups of this size are small enough that they don’t face serious problems of collective action. Olson points out that this seems to be reflected in the fact that strong political authority is almost unknown in hunter gatherer groups. Decisions are mostly made by consensus and there are rarely strong chiefs.

The agricultural revolution disturbed this balance though. Settled populations grew to become many times the size of hunter gatherer bands. These populations became much too large for voluntary public goods provision, even for something as important as public defense. Olson hypothesizes that these large permanent settlements must have started their history in a very precarious position. They would be under-defended and constantly subject to the predation of roving bandits. The constant pillaging would mean that these populations would have little incentive to invest in productive capacities and would thus be very poor.

In a world of poor settlements facing constant predation, there is a lucrative “trade” to be “offered” by a successful violent entrepreneur. If someone has the capacity to conquer and defend such a settlement, they might be able to make themselves and their new subjects better off. If the conqueror is patient, they can guarantee the subjects’ safety and the subjects will produce more than they ever would have when they were vulnerable to pillaging. The conqueror can make more by taxing a well protected-population than he could be pillaging them. He just needs to leave them with enough of the surplus that they have sufficient reason to keep investing in higher production

This, in a nutshell, is Olson’s hypothesis about where states came from. Groups got too big to make voluntary arrangements to provide for their own safety and various armed gangs took the opportunity to conquer them to turn them into tax farms. There’s a lot to love in this theory. Not only does it explain where kings come from, it also explains why they are stable. The king as stationary bandit is a nasty thing; he takes a monopolist’s cut from all your production. However, he is much better than the roving bandits who have no qualms about taking everything you have and killing you. This captures Hobbes’s basic understanding that kings are valuable to people in a state of nature. But it comes with the important corrective that the king himself is just another bandit. Despite the heroic stories his scribes will write, the people probably did not ask for him.

What Makes Kingdoms Poorer Than Democracies?

The model of a king who provides public goods and taxes at a rate that leaves plenty of incentive to invest can be too optimistic. A king will only provide public goods to the extent that he expects long term tax increases sufficient to justify the investment. Similarly, he confiscates up to the point where a dollar taken now causes a dollar fall in long term expected revenues. The problem with both of those realities is that their implementation depends on the king’s time horizon. If the long term becomes short for the king, he will stop investing and confiscate with abandon. A king with an insecure hold on power, without an heir, or who just doesn’t care about his heirs, will functionally turn back into a roving bandit.

The king with a short time horizon is a grave problem for monarchies, but so is the mere possibility that the king will eventually have a shorter time horizon. The peasants in a kingdom know that the king might eventually stop caring about the future and repudiate his debts and other contracts and confiscate the wealth of his domain. They know their risk of confiscation in the long run is quite high, so there is always a ceiling on how much they will be willing to invest. The king might not like this situation, but he has no way of committing to his subjects that he’ll keep his promises to respect property and contract in the future. This, Olson suspects, is why dictatorships rarely seem to have strong economic performances for more than a couple generations.

Olson then tries to contrast dictatorial economic performance with democratic performance, but this is where I lose him.

First, he points out that democracies can be in principle just as confiscatory as dictatorships, but suggests that they are less likely to be. If a democratic majority uses the state to tax the population outside the majority, they will more quickly run into the distortionary effects of their taxation because a majority makes so much more of its income through market exchange than a solo dictator. This seems plausible enough, but then he acknowledges that the formal structures of a lot of democracies actually empower small interest groups. Small interest groups don’t have the same market disincentives as a unified majority, so Olson admits it is not clear what stops them from driving taxes to a dictatorial level. So the general confiscatory picture is perhaps better in democracies, but his theory doesn’t offer a very clear picture why.

Are Democracies Better At Providing Economic Rights?

Even more confusing than Olson’s description of democratic incentives to confiscate is Olson’s next set of claims about democracies and law. He spends the last quarter of the article talking about how democracies do a better job enforcing property and contract rights than dictatorships do, but I don’t think he actually provides much of an argument. Here is a representative quotation:

“Interestingly, the conditions that are needed to have the individual rights needed for maximum economic development are exactly the same conditions that are needed to have a lasting democracy. Obviously, a democracy is not viable if individuals, including the leading rivals of the administration in power, lack the rights to free speech and to security for their property and contracts or if the rule of law is not followed even when it calls for the current administration to leave office. Thus the same court system, independent judiciary, and respect for law and individual rights that are needed for a lasting democracy are also required for security of property and contract rights.”

His argument in this final section seems to be that for a democracy to survive through time, it needs a court system that is sufficiently powerful to make rulers leave office and protect groups outside of power. He then makes the leap of assuming that such a court system must be better at enforcing property and contract rights than a dictatorial court system would be.

I find a few things confusing here.

First, is it really the courts that ensure transition of power in democracies? As Olson notes later in the paper, the key to the organic establishment of a democracy seems to be a rough balance of violent power between competing groups in society who cannot establish dominance over each other and cannot split off from each other. This seems to imply that what keeps democracies going is some underlying stable balance of violent capacity. Writing public law and having courts implement it might be a good way for competing blocks in society to negotiate with each other, but isn’t it ultimately the implicit threat of a fight that’s doing the restraining, not the courts?

With that it mind I wonder if there is any necessary connection between the mechanisms that enforce a peaceful transition of power and the enforcement of property and contract rights against the government generally. It is plausible that a ruling regime in a stable democracy cannot plunder the powerful social groups who are currently outside the regime. But isn’t that because some of those other groups are powerful enough to retaliate? Why would that lead to a general respect for property and contract rights rather than a mere respect for the claims of sufficiently powerful rival blocks in society? Is there an implicit assumption here that eventually everyone gets to be part of a powerful block in a democracy and can politically enforce their rights?

Finally, the concept of “upholding property and contracts rights” blends two things that Olson has been talking about throughout the paper. To the extent that he means upholding property and contract rights against the government he is talking about the dynamics that determine whether or not a government will confiscate. To the extent that he means upholding property and contracts rights between private citizens, he is talking a kind of public goods provision. For the second of these, which is clearly doing a lot of work for him, he is frustratingly silent on why we should expect democracies to do any better. Why would having enforceable rules for peaceful transfer of power have anything to do with providing good private rights enforcement among the public? One might actually expect the opposite given his acknowledgement that democratic administrations have short time horizons.

Despite these complaints, I don’t actually think Olson is necessarily wrong about all of this. I just don’t think he makes enough of a case within the paper. But at least it's thought provoking! Every time I read it I have a bunch of new questions about the relationship between state formation, democratization, and the law. What’s the role of public law in democratization? Do democracies always give their citizens stronger economic rights against the government? Do dictatorships and democracies perform differently in enforcing rights between citizens? I hope to write more on these questions in later posts.

In english speaking political science and legal theory it was common for a long time to talk as though the state and the legal system were the same thing. The state was the body that promulgated and enforced laws. Laws were just the commands of the sovereign backed up by the threat of force. But eventually this very simple view broke down because of confusing questions like “what then is international law?” or “who is the sovereign that gives commands in constitutional disputes between branches of government?” 

Yet even if the naive identity view is gone, many legal theorists and political scientists talk about states and legal systems as if they are basically the same thing. Hartian positivists will describe the legal system as a set of rules, a critical core of which are accepted by a set of officials. But of course, the officials they are talking about are state officials, and a lot of the core rules they think keep the system together are the “public power conferring rules.” Public power conferring rules are just the social rules that govern the power within the state, so the Hartians still generally just mean some aspect of the state when they talk about "the legal system.” 

The fact that modern western legal theorists take for granted that legal systems are creatures of states is a bit strange when you look at the history of European legal systems. Unitary national legal systems are a modern phenomenon in Europe. Medieval Europe was full of overlapping legal orders with different court systems that cut across the map of the relatively weak states that existed. Trying to wrap your head over exactly how this world worked and why it went away raises all sorts of interesting theoretical questions that modern legal theorists just don’t talk that much about.

There are some people who talk about these questions though. Libertarians, especially of the more anarcho-capitalist bent, are some of the rare people who find the modern habit of identifying legal systems with states very annoying. Their whole utopian vision relies on imagining a world without states that still contains enforceable rights of property and contract, so they’re fundamentally committed to the idea that you can have law without the state. And they are very good at finding historical examples where that has happened! The great anarcho capitalist David Friedman has done a lot of historical and comparative legal scholarship toward this end. He famously helped popularize the fascinating legal history of medieval Iceland where for hundreds of years there was no state to speak of and the island was governed by a privately enforced set of laws.

But despite the good work of Friedman and other comparativists, these questions still seem under-discussed to me. So, I am starting this blog to give myself a place to take a crack at describing some of the various relationships between legal systems and states in the past, the present, and in possible futures.

Here are a smattering of questions I have that I hope to address at some point:

• What determines when a state gets into the business of law and court providing? Is there such a natural connection between keeping the peace and providing dispute resolution that states always end up in the law business, or have there been states that have kept out of it?

• What was the relationship between the development of strong states in Europe and the decline of non-national courts such as ecclesiastical and commercial courts?

• Relatedly, is there a direct relationship between state-building and the relative decline of the common law and the rise of statutes in Britain and America?

• Is there a viable distinction, as some libertarians like to make, between the “natural” evolution of social norms that was captured in the common law, and the “top-down” rule-creation of centralized states?

• Have their been other cases like Iceland in history where a community has no real centralized state to speak of, yet there are institutions we would recognize as formal legal systems, like courts, and legislatures?

• What are the situations where international law actually directs states behavior? Why do states put so much work into maintaining bits of international law that don’t seem to constrain anyone?

• How much promise is there in using blockchain to develop a new world of commercial law that makes no use of state enforcement mechanisms?

• What’s the current state of the hoped-for governance experiments of charter cities and seasteading? What has held them back?

I can’t promise I’ll get to any of these soon, or ever, but they’re representative of the things that I want to think about with this blog, so if they’re interesting to you, stick around.