Introducing The Stationary Bandit
A Blog about States and Legal Systems
Mancur Olson described state formation as a process in which roving bandits settle down and become stationary bandits. They realize they can make more money by subjugating than by pillaging so they rebrand themselves as kings and nobles. I’ve long had an interest in the literature on how states have arisen and changed over time. Why have some states become rule bound and democratic while others haven’t? Why have some states developed complicated capacities while others remain basically warlords? When I went to law school a few years ago, these questions were in the back of my mind. As I learned a bit of legal history and philosophy I started wondering how exactly states relate to legal systems.
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.