Polycentrism wrap up:

The two Benson articles, the Peden, the Friedman, the Milgrom/North/Weingast, and the Anderson and Hill together gave us nine or ten examples, from various cultural backgrounds and various time periods, of law or law-like institutions that provided social order, stable levels of cooperation, and mostly restitutive dispute resolution.  These all seem to be examples of “bottom-up,” evolved orders that reflected common purpose as these communities sought ways of living together and promoting peace and  prosperity. 

Let me now draw your attention to a highlight of the essay by Anderson and Hill that we did not have time to get to, their discussion of something called “Schelling Points.”  Begin on bottom of page 198 (reader pagination) bottom right to p. 199, top left.  We’d expect to see some “starting point” to form the basis of the common purpose I mentioned in the previous paragraph – what would form the basis of that common purpose?  As your first paper assignment prompted you to consider, a Thomistic conception of natural law might be one candidate, but this seems not to have been what it was in many of the cases.  Whatever they are, these starting points are known as Schelling Points, defined on p. 199 as “point[s] of commonality that [exist] in the minds of the participants in some social situation.”   This is why, to use their example, “I got here first” carried more weight in terms of establishing the validity of mining claims than “I’m tougher than you.”  Note the mentions of Schelling points in the four situations Anderson and Hill cover.

Now: recall that Hasnas’ conclusion was that we could solve the problem of politicization of law by rejecting monopolistic conceptions of law in favor of polycentrism.  The visiting speaker, Dr. Mueller, made an argument about the advantages of polycentric models of governance over the mononcentric model.  His observations are step in the direction Hasnas seems to be suggesting.  The ultimate step one might take, though, which goes beyond Mueller’s argument, would be to decouple law (in the sense of conflict resolution and rights-protection) from geography entirely.  Part of Mueller’s point was that “voting with your feet” is prohibitive when you have to move a thousand miles, but more realistic if you’d only have to move 30 miles.  But what if you didn’t have to move at all?   If you think Allstate is a bad company, you can switch to Farmers without moving anywhere.  Could “law” work at all on that model?  If it could, that would be the ultimate in polycentricity.   So, the final reading for this unit is the 2-part Barnett essay, which is already linked on the web page.   Read that and see if you can get how he thinks that might work.  I will have some follow-up thoughts on that next week, but your weekly response for this week, #8, is to assess EITHER Mueller’s argument OR Barnett’s.

The Berman piece in your reader might be useful if you’re interested in a more theoretical overview of how some of these mechanisms develop, but you may regard that as optional now.

We will not meet Thursday 3/29.   On April 2, we will begin the 4th unit on schedule, “philosophical issues in the law,” starting with punishment theory.  See you Tuesday.