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LEGAL POLYCENTRISM: A CHRISTIAN THEOLOGICAL AND JURISPRUDENTIAL EVALUATION
Published online by Cambridge University Press: 28 January 2018
Abstract
Legal theorists have long debated whether law originates from a single source (the actions of state officials) or from multiple sources (including the innumerable communities and associations that constitute broader civil society). In recent years, proponents have defended polycentrism—and its critics have tried to refute it—from various moral, economic, and historical angles. But no contemporary writer has examined polycentrism from a Christian perspective. In the absence of such a study heretofore, this article attempts to evaluate legal polycentrism from a Christian theological and jurisprudential perspective. The Christian scriptures and Christian theology do not directly address whether law is polycentric or monocentric. Nevertheless, appealing to a number of biblical-theological issues—including the image of God, the Noahic covenant (Genesis 8:21–9:17), wisdom, and the purpose of civil government—I argue that Christians have good reason to regard polycentrism as a more satisfactory view of law.
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References
1 I base this scenario on real-life ranching communities examined in Ellickson, Robert C., Order without Law: How Neighbors Settle Disputes (Cambridge, MA: Harvard University Press, 1991)Google Scholar.
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We may now venture a rough definition of law from the point of view of the average man: For any particular lay person, the law, with respect to any particular set of facts, is a decision of a court with respect to those facts so far as that decision affects that particular person. Until a court has passed on those facts no law on that subject is yet in existence. Prior to such a decision, the only law available is the opinion of lawyers as to the law relating to that person and to those facts. Such opinion is not actually law but only a guess as to what a court will decide.
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21 Perhaps most eloquently captured by Berman in Law and Revolution: “Law in action involves legal institutions and procedures, legal values, and legal concepts and ways of thought, as well as legal rules. It involves what is sometimes called ‘the legal process.’” Berman, Law and Revolution, 4. Law “is a living process of allocating rights and duties and thereby resolving conflicts and creating channels of cooperation.” Ibid., 5. “To speak of the Western legal tradition is to postulate a concept of law, not as a body of rules, but as a process, an enterprise, in which rules have meaning only in the context of institutions and procedures, values, and ways of thought. From this broader perspective the sources of law include not only the will of the lawmaker but also the reason and conscience of the community and its customs and usages.” Ibid., 11. See also Fuller, The Morality of Law, 74, 145; Benson, The Enterprise of Law, 11; Hayek, Rules and Order, 36. Although I do not treat him as a polycentrist for purposes of this article, Neil MacCormick's notion of law as “institutional normative order” seems to express an idea many polycentrists would share. He writes that law has an “aspiration to order” by prescribing “an elaborate set of patterns for human conduct,” and the orderliness depends upon “the set of patterns amounting to a rationally intelligible totality.” See MacCormick, , Institutions of Law: An Essay in Legal Theory (Oxford: Oxford University Press, 2007), 1, 11CrossRefGoogle Scholar.
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25 See Benson, The Enterprise of Law, 230.
26 According to Bederman: “Customary regimes flourish … in pluralistic legal environments” and in legal cultures “accepting of multiple sources of legal obligation.” Bederman, Custom as a Source of Law, 177, 180. This again stands in contrast to positivism. Fuller claimed that positivists have never been comfortable with customary law. See The Morality of Law, 232–33. This is evident in both Austin and Kelsen, who believe that customary “law” really becomes law only when authorized by courts or the legislature, thereby making it the command of the sovereign. See Austin, The Province of Jurisprudence, 34–36; Kelsen, Pure Theory, 9.
27 See, for example, Benson, The Enterprise of Law, 213–16, 228; Hasnas, “The Obviousness of Anarchy,” 120–22; Leoni, Freedom and the Law, 175.
28 A central concern of Ellickson, Order without Law.
29 Ibid., 4.
30 Berman, Law and Revolution, 10–11.
31 See, for example, Hayek, Rules and Order, 82–83; Leoni, Freedom and the Law, 140–41. As Sir Edward Coke (1552–1634) described it, “The Lawes of England consist of three parts, The Common Law, Customes, & acts of parliament.” See The Selected Writings of Sir Edward Coke, vol. 1, ed. Sheppard, Steve (Indianapolis: Liberty Fund, 2003), 95Google Scholar.
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36 Bederman, Custom as a Source of Law, 84–88; Fuller, The Morality of Law, 234; Ellickson, Order without Law, 254; Benson, The Enterprise of Law, 227.
37 See generally Ellickson, Order without Law, part 1.
38 Scott, Seeing Like a State, 118–30.
39 Ibid., 255–56, 351.
40 Bederman, Custom as a Source of Law, 57, 176.
41 See generally Cover, “Nomos and Narrative.”
42 Hayek, Rules and Order, 28. See also Ellickson, Order without Law, 184; Snyder, “Nomos, Narrative, and Adjudication,” 1630–31 (commenting on Cover).
43 See Austin, The Province of Jurisprudence, 34–36.
44 See Kelsen, Pure Theory, 33, 43.
45 Snyder, “Nomos, Narrative, and Adjudication,” 1636–37. See also Berman, Law and Revolution, 38–39.
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54 The discretionary power this seems to leave to judges is undoubtedly why many positivists find Dr. Bonham's case disturbing and even illegitimate. Antonin Scalia, for example, calls Dr. Bonham's case “not orthodoxy at all,” “an extravagant assertion of judicial power,” and “eccentric.” See Scalia, , A Matter of Interpretation: Federal Courts and the Law, ed. Gutmann, Amy (Princeton: Princeton University Press, 1997), 129–30Google Scholar. For one polycentrist's interpretation of this case, see Fuller, The Morality of Law, 99–101.
55 In addition to the material quoted above, Aquinas explains in Summa Theologiae, 1a2ae 97.3, ad. 2 that if the reason for a legislated law's usefulness remains, “it is not the custom that prevails against the law, but the law that overcomes the custom.”
56 Bederman, Custom as a Source of Law, 113, 178.
57 Translations from scripture are from The Holy Bible, English Standard Version (Wheaton: Good News Publishers, 2001).
58 This is a common Christian conviction, embraced widely in the Reformed, Roman Catholic, and Eastern Orthodox traditions (although the latter two also claim that sinful humans have lost the likeness of God, while the image remains). The Lutheran tradition ordinarily asserts that humans lost the image at the Fall.
59 I think especially of the now broadly accepted idea that the image entails exercising royal rule as God's earthly representative. See discussion of this, with an eye to its legal implications, in VanDrunen, David, Divine Covenants and Moral Order: A Biblical Theology of Natural Law (Grand Rapids: William B. Eerdmans, 2014), 41–68Google Scholar.
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61 For arguments that the whole of Genesis 8:21–9:17 should be understood as recounting the Noahic covenant, even though the “covenant” terminology only appears in 9:8–17, see Mason, Stephen D., “Another Flood? Genesis 9 and Isaiah's Broken Eternal Covenant,” Journal for the Society of the Old Testament 32, no. 2 (2007): 177–98CrossRefGoogle Scholar, at 184–86.
62 I interpret this covenant along lines advocated by many in my own Reformed tradition. See, for example, Witsius, Herman, The Economy of the Covenants between God and Man: Comprehending a Complete Body of Divinity, 2 vols., trans. Crookshank, William (Phillipsburg: Presbyterian and Reformed, 1990), 2:239Google Scholar; Brakel, Wilhelmus à, The Christian's Reasonable Service, 4 vols., trans. Elshout, Bartel (Ligonier: Soli Deo Gloria, 1992–95), 4:384Google Scholar; Kuyper, Abraham, Common Grace (Grand Rapids: Christian's Library Press, 2013), 1.1.15–117Google Scholar; Bavinck, Herman, Reformed Dogmatics, vol. 3, Sin and Salvation in Christ, ed. Bolt, John, trans. Vriend, John (Grand Rapids: Baker Academic, 2006), 218–19Google Scholar; Vos, Geerhardus, Biblical Theology: Old and New Testaments (Grand Rapids: William B. Eerdmans, 1948), 56, 62–63Google Scholar; VanDrunen, Divine Covenants and Moral Order, 100–14.
63 According to Jonathan Burnside, “It is impossible to imagine a more inclusive covenant than this.” See Burnside, , God, Justice, and Society: Aspects of Law and Legality in the Bible (Oxford: Oxford University Press, 2011), 35Google Scholar.
64 There are important similarities and differences between the moral implications I draw here from the Noahic covenant and the ancient Jewish tradition of the Noahide laws. See VanDrunen, Divine Covenant and Moral Order, 543–45. For a thorough study of the Noahide laws, see Novak, David, The Image of the Non-Jew in Judaism: An Historical and Constructive Study of the Noahide Laws (Lewiston: Edwin Mellen Press, 1983)Google Scholar.
65 The Hebrew term here translated man is a generic term for a human being and is not gender specific.
66 See, for example, Crenshaw, James L., Old Testament Wisdom: An Introduction (Louisville: Westminster John Knox Press, 1998), 11Google Scholar; Murphy, Roland E., The Tree of Life: An Exploration of Biblical Wisdom Literature, 3rd ed. (Grand Rapids: William B. Eerdmans, 2002), 10–11Google Scholar.
67 See Van Leeuwen, Raymond C., Proverbs, The New Interpreter's Bible (Nashville: Abingdon Press, 1997), 53–54Google Scholar; Fox, Michael V., Proverbs 1–9, The Anchor Bible (New York: Doubleday, 2000), 179–80, 355–56Google Scholar; Dell, Katharine J., The Book of Proverbs in Social and Theological Context (Cambridge: Cambridge University Press, 2006), 142CrossRefGoogle Scholar; VanDrunen, David, “Learning the Natural Law as Maturation in Wisdom,” In die Skriflig/In Luce Verbi 50, no. 1 (2016): 1–9CrossRefGoogle Scholar, at 4–7.
68 See VanDrunen, “Learning the Natural Law,” 7–8.
69 See, for example, Perdue, Leo, Wisdom and Creation: The Theology of Wisdom Literature (Nashville: Abingdon Press, 1994), 109–10Google Scholar; Clements, Ronald E., Wisdom in Theology (Grand Rapids: William B. Eerdmans, 1992)Google Scholar.
70 See, for example, Perdue, Leo G., The Sword and the Stylus: An Introduction to Wisdom in the Age of Empires (Grand Rapids: William B. Eerdmans, 2008), 11Google Scholar; Crenshaw, Old Testament Wisdom, 55; Clements, Wisdom in Theology, 45–46.
71 See, for example, Burnside, God, Justice, and Society, 11–12.
72 See, for example, ibid., 18–19. For a thorough recent study of the relation of the Mosaic law to other ancient Near Eastern Law, see Wright, David P., Inventing God's Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi (Oxford: Oxford University Press, 2009)Google Scholar; see also Burnside, God, Justice, and Society, 2–10; VanDrunen, Divine Covenants and Moral Order, 288–301.
73 For a summary case, see Burnside, God, Justice, and Society, 19, 24–26.
74 See discussion of relevant texts in VanDrunen, Divine Covenants and Moral Order, 399–404.
75 Consistent with these claims is the fact that the modern state in fact emerged rather late in history. See Scott, Seeing Like a State, 183–84; Hasnas, “The Obviousness of Anarchy,” 122.
76 See discussion of these Old Testament examples in VanDrunen, Divine Covenants and Moral Order, 148–61, 167–78, 196–207.
77 For example, Fuller argued that legal systems miscarry when they fail to publicize rules and to make them understandable, and that a virtue of the common law was how it worked out widely held conceptions. See Fuller, The Morality of Law, 39, 49–51, 63–65. See also Murray, Charles, By the People: Rebuilding Liberty without Permission (New York: Crown Forum, 2015), 32–33Google Scholar.
78 For example, Thomas Aquinas explained that the reason behind a law resides both in the lawgiver and, by participation, in the one who receives the law to be ruled by it. See Summa Theologiae, 1a2ae 90.1 ad. 1; 90.3 ad.1; see also 90.4.
79 See MacCormick, Institutions of Law, 71.
80 See Ellickson, Order without Law, 144–47; see also Leoni Freedom and the Law, 177.
81 Silverglate, Harvey A., Three Felonies a Day: How the Feds Target the Innocent (New York: Encounter Books, 2011)Google Scholar. How has this happened? “The answer lies in the very nature of modern federal criminal laws, which have become not only exceedingly numerous … and broad, but also … impossibly vague.” Ibid., xxxvi. The recent federal action against the Gibson Guitar Corporation arguably provides a well-publicized case in point. For general background and analysis of this matter, see Dieterle, C. Jarrett, “The Lacey Act: A Case Study in the Mechanics of Overcriminalization,” Georgetown Law Journal 102, no. 4 (2014): 1279–306Google Scholar. The U. S. Fish and Wildlife Service sent armed federal agents to raid two Gibson Guitar buildings, to gather evidence that Gibson had violated an old and obscure U.S. statute, which, to be true, required Gibson to violate laws of India.
82 For similar argument, see Hasnas, “The Obviousness of Anarchy,” 118–19. See also Scott, Seeing Like a State, 49 (“We must never assume that local practice conforms with state theory.”).
83 Cover, “Nomos and Narrative,” 6. See also Hayek, Friedrich A., Law, Legislation and Liberty, vol. 2, The Mirage of Social Justice (Chicago: University of Chicago Press, 1976), 11Google Scholar (“What we have in common with our fellows is not so much a knowledge of the same particulars as a knowledge of some general and often very abstract features of a kind of environment.”).
84 See Fuller, The Morality of Law, 51; MacCormick Institutions of Law, 66–67. See also Polanyi, Michael, Personal Knowledge: Towards a Post-Critical Philosophy (Chicago: University of Chicago Press, 1962)Google Scholar.
85 Hayek comments in Rules and Order, 87: “The task of the [common law] judge will be to tell them what ought to have guided their expectations, not because anyone had told them before that this was the rule, but because this was the established custom which they ought to have known.” See also Rules and Order, 97; Bederman, Custom as a Source of Law, 181.
86 On the ideal of coherence within the Western legal tradition, see Berman, Law and Revolution, 9, 11, 38. For related comments regarding the common law, see Coke, Selected Writings, 741; Stoner, James R. Jr., Common-Law Liberty: Rethinking American Constitutionalism (Lawrence: University Press of Kansas, 2003), 11Google Scholar; and Gordon S. Wood, “Comment,” in A Matter of Interpretation, 59.
87 See Cover, “Nomos and Narrative,” 4–5.
88 See generally Dworkin, Ronald, Law's Empire (Cambridge, MA: The Belknap Press of Harvard University Press, 1986)Google Scholar.
89 See Murphy, The Philosophy of Customary Law, x, 113–16; Hayek, Rules and Order, 65, 78; Cover, “Nomos and Narrative,” 11–12; MacCormick, Institutions of Law, 5, 31, 42–44; Pound, The Ideal Element, 74, 82–87, 117–19, 139.
90 See, for example, Coke, Selected Writings, 481, 701, 742–43.
91 See Stoner, Common-Law Liberty, 11–12.
92 Ibid., 7, 23.
93 See Llewellyn, Karl N., The Common Law Tradition: Deciding Appeals (Boston: Little, Brown & Co., 1960), 213–16Google Scholar (on craftsmanship); 190, 213–16, 382 (on inexactitude); and 5, 19, 21, 53, 60–61, 202–3, 264, 268–70 (on horse sense).
94 For a classic example, see Frank, Law and the Modern Mind.
95 See, for example, Pound, The Ideal Element, 268–69, 286, 291, 297–98, 305.
96 See related comments in Bederman, Custom as a Source of Law, 28–30.
97 See Murphy, The Philosophy of Customary Law, 115–16.
98 See especially the work of Hayek, for example, Rules and Order, 12–13, 32. See also Barnett, The Structure of Liberty, chapter 2.
99 According to Scott, “trying to jell a social world … seems rather like trying to manage a whirlwind;” societies are an “ineffably complex web of activity” and trying to replace this web with formal rules is “certain to disrupt the web in ways that they cannot possible foresee.” Scott, Seeing Like a State, 92–93, 256. See also Hayek, The Mirage of Social Justice, chap. 7; Leoni, Freedom and the Law, 7; Benson, The Enterprise of Law, 131.
100 Scott comments that the Soviet experiment in agricultural collectivization, whose planners were “flying blind,” endured as long as it did because of “the improvisations, gray markets, bartering, and ingenuity that partly compensated for its failures.” Scott, Seeing Like a State, 202, 203.
101 See, for example, Ridley, Matt, The Evolution of Everything: How New Ideas Emerge (New York: Harper, 2015)Google Scholar, particularly chapters 5–6, 13, 15. Central bankers' repeatedly failed attempts to bring about desired economic outcomes provide good contemporary examples. See, for example, Mallaby, Sebastian, The Man Who Knew: The Life and Times of Alan Greenspan (New York: Penguin, 2016)Google Scholar.
102 See Hayek, Rules and Order, 38, 41, 44, 50–51, 63; Barnett, The Structure of Liberty, chapter 3. On Hayek's contribution to explaining the “knowledge problem,” see Caldwell, Bruce, Hayek's Challenge: An Intellectual Biography of F. A. Hayek (Chicago: University of Chicago Press, 2004), 338Google Scholar.
103 See Ellickson, Order without Law, 281–83; Scott, Seeing Like a State, 345; Hayek, Rules and Order, 33, 59.
104 Thomas Aquinas, Summa Theologiae, 1a2a 95.3.
105 Thus, according to Fuller, a legal system can miscarry through frequent change. See Fuller, The Morality of Law, 79–81.
106 See Leoni, Freedom and the Law, 9–10, 70–75, 78–79, 80–81, 90, 110.
107 For the latter term, see Bederman, Custom as a Source of Law, 177–78.
108 See Scott, Seeing Like a State, 34–35. In comparison, Scott says that changing codes to reflect evolving social practice is “a jerky and mechanical adaptation.”
109 On the analogy to language, see Ellickson, Order without Law, 5; Fuller, Principles of Social Order, 240; Scott, Seeing Like a State, 143, 256, 357; Leoni, Freedom and the Law, 9, 86, 130, 132, 135–36, 143, 146. On the analogy to markets, see Ellickson, Order without Law, 5; Benson, The Enterprise of Law, 15; Leoni, Freedom and the Law, 22, 86–87, 108–9, 130, 132, 146, 150. On the analogy to science, see Leoni, Freedom and the Law, 147–49.
110 For comments on how the traditional common law system captured some of the concerns expressed here, see Barnett, The Structure of Liberty, 117; Leoni, Freedom and the Law, 179; Alvarado, Ruben, Common Law and Natural Rights: The Question of Conservative Foundations (Aalten: WordBridge Publishing, 2009), 40Google Scholar.
111 In the English legal tradition, the tension between commitment to the rule of law and commitment to Parliamentary sovereignty illustrates the problem. See, for example, Hannan, Daniel, Inventing Freedom: How the English-Speaking Peoples Made the Modern World (New York: Broadside Books, 2013)Google Scholar. Already on page four he speaks of these two ideas as if they are fully compatible. First: “the rule of law. The government of the day doesn't get to set the rules.” Then less than half a page later: “representative government. Laws should not be passed, nor taxes levied, except by elected legislators.” Does government set the rules or not? Hayek confronts the problem directly when he declares that constitutional separation of powers has failed in its objective. See Hayek, Rules and Order, 1.
112 I mention a few pertinent comments from polycentrists: Berman, Law and Revolution, 38 (“The view that law transcends politics—the view that at any given moment, or at least in its historical development, law is distinct from the state—seems to have yielded increasingly to the view that law is at all times basically an instrument of the state, that is, a means of effectuating the will of those who exercise political authority.”); Pound, The Ideal Element, 352 (“Law is the real foe of absolutism.”); Jouvenal, Bertrand de, On Power: The Natural History of Its Growth, trans. Huntington, J. F. (1948; Indianapolis: Liberty Fund, 1993), 334Google Scholar (“Beyond all question, the supremacy of law should be the great and central theme of all political science. But, make no mistake about it, the necessary condition of this supremacy is the existence of a law older than the state, to which it is mentor. For if law is anything which Power elaborates, how can it ever be to it a hindrance, a guide, or a judge?”).
113 See Hayek, Rules and Order, 28; Murphy, The Philosophy of Customary Law, ix, 10, 23, 27, 36, 40.
114 On the importance of reciprocity for customary law, see Benson, The Enterprise of Law, 12–13; Fuller, Principles of Social Order, 194.
115 See, for example, Benson, The Enterprise of Law, 12, 45, 322; Hasnas, “The Obviousness of Anarchy,” 116; Leoni, Freedom and the Law, 13, 100–10, 131, 146; see also Stoner, Common-Law Liberty, 5.
116 For helpful discussion, see Murphy, The Philosophy of Customary Law, 51–52, 98–101. On the related debate whether customary law promotes or hinders human freedom, see Murphy, The Philosophy of Customary Law, xii; Bederman, Custom as a Source of Law, 176.
117 On the danger of the politicization of society and law-creation and the benefits of customary law in restraining it, see, for example, Stoner, Common-Law Liberty, 16; Jouvenal, On Power, 341; de Jasay, Anthony, Before Resorting to Politics, The Shaftesbury Papers, 5 (Cheltenham & Brookfield: Edward Elgar Publishers, 1996), 54–55Google Scholar; Benson, The Enterprise of Law, 77, 88.
118 See, for example, Landes, William M. and Posner, Richard A., “Adjudication as a Private Good,” Journal of Legal Studies 8, no. 2 (1979): 235–84CrossRefGoogle Scholar; Palchak, John K. and Leung, Stanley T., “No State Required? A Critical Review of the Polycentric Legal Order,” Gonzaga Law Review 38, no. 2 (2002/03): 289–333Google Scholar, at 315–16. For critical comments on the polycentric theories of Hayek, Barnett, and Cover (respectively) on moral grounds, see Ogus, A. I., “Law and Spontaneous Order: Hayek's Contribution to Legal Theory,” Journal of Law and Society 16, no. 4 (1989): 393–409CrossRefGoogle Scholar, at 403–5; Palchak and Leung, “No State Required?,” 309; Synder, “Nomos, Narrative, and Adjudication,” 1726.
119 Among polycentrists who have addressed them, see Benson, The Enterprise of Law, chapters 11–12; Barnett, The Structure of Liberty, chapters 13–14; Friedman, The Machinery of Freedom, 156–59.
120 With some analogous concerns, Ellickson discusses situations in which the customary order creates parochial norms that work to the detriment of outsiders, which legislation may be suited to fix. See Order without Law, 169, 249–50.
121 See discussion of situations in which statutes fall into desuetude due to customary practice throughout Bederman, Custom as a Source of Law; Murphy, The Philosophy of Customary Law.