Over on Catallarchy, Jonathon Wilde has a very thoughtful discussion of how a polycentric legal order provides genuine checks and balances to prevent abuses of power. Here is how it begins and ends:
I have nothing but the highest respect for most of the Founders. They were learned men who integrated the cumulative available knowledge of political philosophy of their times and created the greatest political experiment in history. Yet, like Jim states, they were spectacularly wrong about the whole “separation-of-powers” thing. If the three branches provided the same or similar function, competition between them could arise. But they do not, and their separate complementary powers act synergistically, not competitively. . . .
Polycentric law is simply federalism taken to its logical conclusion. I don’t envision such a society emerging anytime soon, let alone in my lifetime. As Hayek wrote, societies and ideas evolve slowly over time. There is no magic button to push. But if I could use a wayback machine to go back to the late 18th century and sit down and have a drink with with Patrick Henry and Thomas Paine, tell them how right their fears were, give them more ammunition for their battles with Jay and Hamilton in the form of knowledge of economics we have today, and beseech them to try even harder to assure a true separation of powers, without a doubt, I would. Market anarchism and polycentric law would surely be more in line with what spirit of 1776 was about than the document written a decade later.
You should read the substance of the argument in between these two quotes. (I discuss the advantages of a polycentric legal order in The Structure of Liberty: Justice and the Rule of Law, Chapters 12 -14)
Comments are closed.