Jurisdiction as Property
Nick Szabo has a fascinating article on “Jurisdiction as property and peer-to-peer government.” I’m not going to attempt to summarize it, but will simply quote the opening:
Modern civics and political science is often taught as an absurd dichotomy: that government is a “monopoly over the use of force” and that the absence of government is anarchy. Using this fallacious dialectic, many highly lawful societies, such as most of medieval Europe, and in particular medieval and renaissance England, were “anarchies.” Even the United States is really an “anarchy”: jurisdictions are divided up among federal, state, county, municipal and other entities, including shopping malls and mass transit authorities whose security guards can legally arrest probable criminals.
I have two quibbles: I think the term peer-to-peer is at best misleading. It is a continuum of power relationships, some of which were between peers, and others were not. Also, I think the devolution of franchise may be interesting. It’s not only used for utilities and such, but also by businesses like McDonalds, which allow the franchisee certain rights over brand, symbols, and policies and processes owned by the franchiser, and also charge a tax of the franchisees.
I’m happy to hear you enjoyed the posts. Having spent a semester learning the most obscure medieval legalese, I wasn’t sure I could write in understandable modern prose about the subject. (I did have to leave out interesting parts about seisin, quare, transgressione, purparty, etc…don’t ask 🙂
I use “peer-to-peer” to describe the ideal system (and a meaningful and substantial proper subset of the actual English system) where owners of jurisdiction, including the king, and defendants in jurisdictions could sue each other based on property and body rights: i.e. for trespass (which also included imprisonment and wrongful death). That’s a peer-to-peer form of judicial review. This contrasts to the delegation or employer-employee (civil bureaucracy) system derived from Roman imperial law, which also formed a proper subset of the English system (the residual jurisdiction of the king) covering those areas where franchises did not have exclusive jurisdiction.
To be more mathematically rigorous in my description of the structure of trespass review, “cyclic graph” is a better starting point than “peer-to-peer”, but then I’d lose the non-computer-scientist audience.
In the delegation system “higher” courts review “lower” courts for “error”: it is hierarchical review in contrast to peer-to-peer review and it leaves the lower courts far less discretion: everybody must follow the dictates of the supreme court on every subject matter. The relationships between franchise and royal police (constables, etc.) also tended to be based on trespass actions and were peer-to-peer up to the king’s extraordinary writs (extraordinary orders).
Within the royal bureaucracy itself agents or servants (employees) had to follow both the king’s ordinary and extraordinary writs. These included many, but by no means all, county sheriffs and constables.
Given the flexibility of property law there were many variations “between” delegation and property. For example Counties Palatine were private counties independent of all but the king’s extraordinary writs (their relationship with the king was based on the extraordinary trespass writs), whereas other counties were private (in this sense of being owned as heritable, and often alienable property rights) but also had to follow the king’s ordinary writs, and their decisions could be reviewed for substantive error.
Despite these “between” cases there is a qualitative difference and it doesn’t reduce to “power relationships.” (Another loathesome oversimplification of political science). One might say there’s a “continuum” from cyclic graphs to trees because you can have cyclic graphs that are mostly cycles, or mostly trees, or a wide variety of things in between. One could look at the “forest” from afar and make such an observation, but then one would miss the important qualitative differences between cyclic graphs and trees. A big problem with standard political science is that thinking has been canalized into the neo-Roman imperial model where there is a single hierarchy with a single head, the “sovereign,” and nothing else can really be government.
(Separation of powers into legislative, judicial, and executive is yet another way to divide up “sovereignty” which is orthogonal to the franchise/trespass system).
I hope I have always qualified when describing the actual overall English system, i.e. as “partly peer-to-peer” or similar. Even the ideal version of the system (and the subset of English subject matter where franchises had exclusive jurisdiction, and the Icelandic system) I have tried to describe as “peer-to-peer plus night watchm[ae]n.” I’ve tried to be careful in my terminology but if you see an error call me on it.
To me, peer to peer would be that we would sit down and settle our differences. It would not entail a court hearing the grievances.
The “peers” I refer to are the courts, not the parties, and “peer-to-peer” refers to the relationships of the courts to each other via trespass actions (trespass on jurisdiction), usually brought by one court (or its official) against another in royal court.
There was also a separate mode of trespass, i.e. trespass by a court against a defendant: the court had to prove (in another court, usually in practice in a royal court) that it had legal authority, which included not just jurisdiction but also following proper procedures.
In both these cases the royal court was acting as what I call a “night watchman” court, reviewing only the jurisdiction and the following of certain procedures, but not the substance of a case.
Ahhh! The courts as peers. Now it makes sense.
Even the United States is really an “anarchy”: jurisdictions are divided up among federal, state, county, municipal and other entities, including shopping malls and mass transit authorities whose security guards can legally arrest probable criminals.
I don’t think the fact that the government can delegate the ability to use force gives it any less of a monopoly on the use of force. The state police, for example, may deputize mass transit security guards, but they can still place limits on their ability to use force and revoke that right at will.
There is no legal entity called “the government” so it can’t delegate anything. The relationship between the federal government and states is not one of delegation. Rather it’s defined by the federal Constitution, which itself does not purport to delegate any power to the states. The states claimed sovereign powers at the time the Constitution was ratified, and the Constitution via the Supremacy Clause took some of these powers away.
The federal government normally cannot command or impose enforcement obligations on state law enforcement officers (there are Supreme Court cases on this), and it’s not typical for state police to deputize private security guards or mass transit officers. The latter have their own legal authority to arrest not derived from the state police, and the state police don’t derive their authorities from the federal government.
In the cases of states with respect to transit authorities and the like, “delegation” of police powers (I’d call it “authorization” since it has more to do with granting powers than imposing obligations) generally occurs by state statute or the vote of county or municipal commissioners, not by a principle-agent relationship (e.g. not by the approval of some state or county or municipal police official). Police can often temporarily deputize police from other organizations in emergencies under deputization statutes, but there is typically no automatic hierarchy here (e.g. a sheriff might deputize a state police officer under certain circumstances).