One Law for the Lion and Ox
1. The jurisdiction of law should be local, and law itself should be contingent to local circumstances.
2. Law should be administered or enforced by individuals who possess the consensual respect of the local community, not by individuals who have politicked the best or promised Obamaphones to the masses.
3. Law can be guided by precedent but should not be permanently codified for all future cases.
4. Law-dispensing or law-enforcing bodies should be impermanent rather than standing. They come together when necessary but otherwise their members are involved in other pursuits.
“Why is one law given to the lion and the patient ox?” asked William Blake. “One law for the lion and ox is oppression.” Though partially decontextualized, Blake’s aphorism strikes at the heart of federalism and statist policy. Law that is proper, effective, and just in one case or locale may be none of those things in another case or locale. A centralized regime that enforces the same law in all cases and locales is an oppressive regime. (To provide a practical example: a centralized regime that passes an open-borders law from a capitol that lies a thousand miles from the border is oppressive. One law for Fairfax, Virgina and Phoenix, Arizona.)
If we grant this idea validity, we can conclude that, while geographically diminutive or ethnically homogenous states might function well with centralized legal power, the vast majority of centralized states are by definition oppressive because their entire reasons-for-being are to legislate one law for all cases and locales—for the lion and the ox. The great value of polycentric, P2P law is that it resists centralization and thus resists centralized power’s oppressive tendency to dictate law applicable in one case or locale for all cases and locales. Polycentric law places primacy on ever more local concerns and circumstances. It places power into the hands of individuals who are locally known and trusted rather than individuals democratically elected by an amorphous, massive majority. It also obviates the need to balance competing local concerns for the sake of an artificial, centralized assembly.
And yet . . . when you give up that centralized assembly, you resist that tendency toward statist oppression, but you also give up other things. The history of the West, at its best, is the history of productive alliances between the state and private, local actors. Without the centralized state, would we have interstate highways, space programs, nuclear energy, national parks? I don’t know. Without the centralized state, would we have safe architecture, safe air travel, safe roads? Again, I don’t know. I loathe the central state, so my natural response is to say that whatever accomplishments the state can claim would have been accomplished equally well or more efficiently and triumphantly by private actors left to their own, local devices (c.f., the development of standards and practices in various open-source communities). Even so, we cannot deny that centralized power has, in the past, aided technological and economic advancement. The question is, can these advancements continue without a central state? Can Xeer and technological civilization co-exist?
To put the question another way, are the general ideals listed above only possible in isolated communities not connected to the world via mass media and global trade? In my opinion, yes: those legal values are only applicable in special environments segregated from the complex, high-tech world of interstate, international nodes and networks. Xeer and civilization don’t mix well. You have to sacrifice one to maintain the other. And unlike Mr. Goulding, I am unwilling to sacrifice high-tech civilization for a more stable and virtuous legal system.
But maybe I’m erecting a false dichotomy. Perhaps the general virtues of polycentric law are compatible with high-tech civilization. Figuring out how they are compatible is a project well worth pursuing.