quinta-feira, 16 de novembro de 2006

Origens da Justiça

* Benson gives an excellent account of the development of law in Anglo-Saxon England. Custom gave birth to the law and sustained it. The state entered afier the legal system was developed, seizing control of it in order to gain power and money. His description of the history of English law from Anglo-Saxon times through the nine- teenth century shows mastery of a wide variety of sources; his presentation is a veritable tour de force.

* The author places great stress on the Law Merchant, which during the period 1000-1200 "evolved into a universal legal system through a process of natural selection" (p. 32). Trade among the nations of Europe took place principally in fairs and markets, and merchants traveled from one to another. They devised a system of courts and regulations to handle business disputes; to rely on the varying customs of each nation would have been grossly inconve- nient. This system, formed independently of the various states, be- came the basis of modern commercial law.

* Benson, drawing upon a wide array of data, describes many cases of law without the state, ranging from the Kapauku Papuans of Western New Guinea to the American West in the nineteenth century. Contrary to various Hollywood movies, the West was not a series of never-ending gunfights in which outlaws terrorized a cowed popu- lace. Quite the contrary, the West developed a considerable measure of home-grown law and order (pp. 312-21).

* David Landes and Richard Posner, for expample, maintain that written opinions by judges produce positive externali- ties, since people other than the parties to the case can use written decisions as guides (p. 279). Benson has a double line of defense to these criticisms of private law. First, he endeavors to show that the market can internalize the externalities in question. Neighborhood associations, e.g., can re- quire everyone who purchases property in an area to contribute to police protection. (Of course, this must be done not through compul- sion but contractually.)

* In a competitive situation, judges need to acquire a good reputation in order to attract customers; no one --can compel disputants to use them. To issue opinions that attain wide- spread respect is obviously one means of doing so. One might add to Benson's discussion that in the Roman Empire many legal scholars or jurisconsults gained recognition through their writing.

David Gordon ,Review: The Enterprise of Law. By Bruce k. Benson. San Francisco: Pacific Research Institute, 8996).

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