Can Enemies Agree To A Decentralized Framework of Law?

It is commonly believed, even among economists, that orderly resolution of disputes is possible only among groups of people with similar values, who agree to work together, but not among disparate social groups. This motivates the belief that there must be some Supreme Ruler who will watch over other watchers. As to who might watch over the Supreme Ruler or Court or whomever, that’s like pointing out that the emperor is stark naked; it just isn’t done, lest the Superior Being lose face.

Professor Peter Leeson draws back the curtain of history and finds counter-examples. In his Laws of Lawlessness paper, Leeson studies the Marches of Scotland and England, at a time of chronic war and disputes; a time of lawlessness, practically speaking.

ABSTRACT
According to conventional wisdom, self-governance cannot facilitate order between the members of different social groups. This is considered particularly true for the members of social groups who are avowed enemies of one another. This paper argues that self-governance can do this. To investigate my hypothesis, I examine the Anglo-Scottish borderlands in the sixteenth century. The border people belonged to two social groups at constant war with one another. These people pillaged and plundered one another as a way of life they called “reiving.”

To regulate this system of intergroup banditry and prevent it from degenerating into chaos, border inhabitants developed a decentralized system of cross-border criminal law called the Leges Marchiarum. These laws of lawlessness governed all aspects of cross-border interaction and spawned novel institutions of their enforcement. The Leges Marchiarum and its institutions of enforcement created a decentralized legal order that governed intergroup relations between hostiles along the border.

Leeson contends that the Leges Marchiarum system, while not perfect, did a commendable job of preventing the Hobbesian “every man against each other” outcome, and did so without relying upon a “Strong Man” to “keep the peace.”