Wisniewski argues that legal monocentrism, or the provision of law and law enforcement by a coercive central government, cannot overcome the problem of the "paradox of government," i.e., a government powerful enough to coerce thieves and murders would be powerful enough to become a thief and a murderer itself. He claims that only legal polycentrism, or the provision of law and law enforcement by a free and competitive market, can solve this problem.
In many respects this is the same, free market argument we've heard before from anarcho-capitalists: that law and law enforcement are merely consumer goods, and that any good provided by a free, competitive market will better satisfy consumers than a good provided by a monopoly.
Wisniewski puts a new face on the free market/efficiency argument for anarchism by attacking legal monocentrism from a logical and praxeological point of view. He claims legal monocentrism cannot overcome the paradox of government by means of the ballot box nor by means of structural checks and balances. Moreover, he argues it is impossible for consumers of law and law enforcement to make comparative judgments of these goods if they are provided by a monopolistic government.
According to Wisniewski, these problems are not encountered by the system of legal polycentrism because law and law enforcement goods and services are provided by many and varied vendors who must compete for the consumer's business in the free market.
Interested readers can study Wisniewski's economic analysis of government and decide for themselves whether it is logically sound. For me, it misses the point. I concede that a free market is more efficient in satisfying consumer demand for goods and services than an unfree market. The problem is that law is not, like a pair of shoes, a market commodity. Neither is law enforcement a mere consumer service, like Pinkerton rent-a-cops.
Law is the intersubjective ethic that binds people together in a cooperative society. Without a common ethic which outlaws murder and theft, cooperative society could not exist. Law enforcement is society's legitimate means of coercing individuals to comply with its common ethic.
From this prospective, polycentrism is an oxymoron. In a cooperative society, the ethical code which prescribes proper behavior and proscribes improper behavior must be commonly understood and agreed to by all cooperating individuals. A cooperative society cannot have multiple, competing codes of ethics. Such a society would splinter into factions, each faction following a different code. In time the larger society would crack up into smaller societies.
Anarchists and non-anarchists alike seem to agree that some means of final arbitration of disputes is necessary to the survival of a society of cooperating individuals. This is because, as human beings, we all understand that it is possible for reasonable people to disagree and disagree beyond reconciliation. In a cooperative society when reasonable people disagree about the specific meaning of the ethical code, and when that dispute is intractable, i.e., the disputants will not concede their position and cannot settle the dispute by themselves, further cooperative action is impossible. The society itself cracks up.
When two cooperating partners become embroiled in an intractable dispute, resolution is elementary. The two disputing cooperators go their separate ways. Their cooperative action easily cracks up.
However, when many people cooperate in a society, the problem of settling intractable disputes is not so easy. In a large, cooperative society many individuals have great amounts of time and effort invested in the cooperative action. They cannot afford to lose that investment if their cooperative action cracks up, especially if the intractable dispute is over a relatively unimportant issue when considered from their majority point of view.
Cooperating actors anticipate this situation. Large societies devise means of intractable dispute resolution and include these means in their ethical code. Also in that code, they legitimize an authority to enforce these means of resolution by coercion.
This authority may be a single individual or a council of individuals, but either way the power of the coercive authority is decisive. Intractable disputes between cooperating actors are settled. The end result is that the cooperative action -- the society -- survives.
Throughout history cooperating individuals have preserved their cooperative action--their society--by granting legitimate decisive and coercive authority to varied individuals: fathers, mothers, chiefs, kings, queens, parliaments, sheriffs, etc. etc. Yes, it is a paradox of sorts, that these authoritative individuals, invested with the legitimate power to preserve society, may use that power in illegitimate ways to crack up society. But this is the nature of cooperative action. Men either cooperate or they don't. They either act in concert, or it is every man for himself. There is no third option.
Wisniewski thinks polycentrism is a third option. He imagines a market society which is anarchic, i.e., a society in which law (the common ethical code) and law enforcement (legitimate, decisive and coercive authority to enforce the ethical code) is freely and competitively traded. But how would intractable disputes between individuals be resolved in such a society? Wisniewski tells us that, due to the "superior allocative properties of the market, freely competing protection and arbitration agencies would provide these goods at a much higher level of quality than a monopoly of force does..."
Are significant disputes regarding a society's code of ethics and its legitimate, decisive and coercive authority merely a matter of "quality?" Are they merely a matter of "superior" allocation of resources and vendors?
Imagine a society in which half of the cooperators believes abortion is murder and the other half believes it is a harmless means of contraception. Their dispute is personal and intractable. If this society practiced legal polycentrism, wherein competing laws for and against abortion were marketed like shoes and many varieties of legitimate, decisive and coercive authority were available for purchase, would the intractable dispute of the cooperators stand a better chance of resolution than in a society practicing legal monocentrism?
Wisniewski's argument is slight of hand. He conflates the free and competitive market, which results in "superior" allocation and improved "quality" of consumer goods and services, to the process by which individuals make ethical choices. Ethical codes and legitimate, decisive and coercive authority are not consumer goods and services, nor can they be traded as such. Rather, they are the philosophical basis and the moral foundation of exchange in a cooperative society.
Furthermore, Wisniewski argues that "protection and arbitration agencies" -- his euphemism for providers of ethical codes and legitimate authority -- will be of a "much higher level of quality" if they emerge from a free and competitive marketplace. But how is a free and competitive market created in the first place? Certainly not in a system of legal monocentrism which is subject to Wisniewski's Paradox of Government. No, a free and competitive market can only be created in a system of legal polycentrism.
So Wisniewski is faced with another paradox of his own making: in order to create legal polycentrism he must first presuppose its existence. If not, then how can he be sure markets are free and competitive and that the protection and arbitration agencies emerging from that market will be of a higher quality?
The only way out of this logical box is to assume "freely competing" protection and arbitration agencies can emerge from legal monocentrism, which brings us back to the beginning of this logical circle.
The truth is a truly intractable dispute between cooperators cannot be resolved by means of an arbitration agency of a higher "quality" or a "protection agency" selected from a myriad of competitors. A truly intractable dispute can only be resolved by means of coercive action by a legitimate authority.
Toward the end of his paper, Wisniewski writes:
... just as people all over the world are very diverse with respect to, e.g., their culinary, sartorial and artistic preferences, and thus prone to patronizing different food, clothing and art providers, they are also diverse with regard to their unwritten legal and moral customs, their beliefs concerning justice and fairness..."If people really are "diverse with regard to...their beliefs concerning justice and fairness," what leads Wisniewski to believe that legal polycentrism must result in all members of society being better off, when considered from their own point of view.
We know there are many people who believe that a free and competitive market is anything but just and fair. In a system of legal polycentrism wouldn't these people be working to subvert a free and competitive market? If people are so "diverse with regard to their unwritten legal and moral customs," how can Wisniewski jump to any conclusion at all with regard to character of the marketplace in a system of legal polycentrism or the quality of arbitration and protection agencies that may emerge from that marketplace.
In most western societies today that practice legal monocentrism individual cooperators are easily able to recognize legitimate authority. They can easily determine the territorial jurisdiction of this authority and its methods and means of enforcement. Thus, it is a relatively simple matter for traders to decide where, how and with whom to cooperate.
However, in a system of legal polycentrism any individual in the society could become an entrepreneur in law and law enforcement. He could legitimately vend law and offer his services in the marketplace as a legitimate, decisive and coercive authority. If the citizens of this society were truly diverse, the market-allocated law would be diverse in kind and quality. Law enforcement service could be anonymous, without territorial bounds or jurisdiction. Under these uncertain conditions market participants would constantly have to decide with whom to trade, how to trade and where to trade. A daunting task indeed.
The concepts of "market anarchism" or "anarcho-capitalism" have always reminded me of a "black market" which can only exist in Wisniewski's system of monocentrism. No matter how efficient or inefficient the legitimate, decisive and coercive law and law enforcement authority is in the parent monocentric market, legitimate law and law enforcement authority is non-existent in the black market offspring. It is the closest system to legal polycentricism I can imagine.
On the black market buyers and sellers make their own law and enforce it in their own way. There are no written laws against murder and theft, although the black market functions according to the "unwritten legal and moral customs" of the people who operate in it. Thus, safeguarding one's person and property is of primary concern to participants in the black market, especially if the participants belong to a disfavored ethnic or social group. The strongest and most violent participants have the upper hand. Arbitration and protection agencies -- of a sort -- exist. However, their quality is suspect to say the least. Extortion rules. Honesty and integrity are in short supply.
A trader in the polycentric black market may be able to judge whether the protection agencies competing there are comparatively efficient or inefficient. A trader in a legal monocentric society may be at a disadvantage in that regard. But he will at least be able to immediately recognize legitimate authority and judge for himself whether that legitimate authority is fair or unfair according to his own standards. He can then decide whether or not to cooperate in such a society.
In conclusion, it should be clear that legal polycentrism, or black market anarchism, is not the nirvana some represent it to be. However, in some strange, ironic way, the black market may be the potential solution to the paradox of government that Wisniewski does not mention. As the ethical code and the legitimate, decisive and coercive authority of the parent monocentric society become more and more corrupted, as politicians, bureaucrats and crony capitalists in the monocentric society act more and more as outright thieves and murderers, individual traders in that society will cease cooperating in the parent society and, of necessity, begin cooperating on the black market.
As the illegitimate power of a monocentric government becomes greater and greater, and as the illicit black market grows larger and larger, the parent monocentric society is faced with the ultimate solution: reform or die.