segunda-feira, 5 de março de 2007

Polycentric Law

Humane Studies Review
Volume 7, Number 1 Winter 1991/92

Via Catallarchy

* "...the study of polycentric law offers the opportunity to research fascinating questions from a fresh point of view. More importantly, however, it offers the opportunity to help discover and develop the legal foundations of a free society based on consent, reciprocity, and justice. "

* The growth of private arbitration has since removed entire classes of disputes from state courts. The insurance, construction, stock exchange, and textile industries (among others) all make heavy use of arbitration. There are currently about 600 arbitration associations in the U.S. The largest of them, the American Arbitration Association, reported 52,520 case filings in 1989 -- up more than 36% from 1980's figures. Overall, some 90,000 cases were filed with arbitrators in 1989. (See Andrew Patner, " Arbitration Settles A Lot, Unsettles A Few," in the Wall Street Journal, April 13, 1990, p. B1.) Why are state courts losing so much business? Because private courts offer greater speed and efficiency.

Current Issues In Law

... Still more customary legal systems wait to be researched. (For an anthropological study of systems of mutual responsibility, see Sally Fox Moore, Law as Process: An Anthropological Approach [London: Routledge & Kegan Paul, 1978].) What do these many historical examples of polycentric law tell us? After a wide review of the field, Benson concludes that each customary legal system has six basic features:

1) a predominant concern for individual rights and private property;
2) laws enforced by victims backed by reciprocal agreements;
3) standard adjudicative procedures established to avoid violence;
4) offenses treated as torts punishable by economic restitution;
5) strong incentives for the guilty to yield to prescribed punishment due to the threat of social ostracism; and
6) legal change via an evolutionary process of developing customs and norms. (Benson, 1990, p. 21)

Anglo-Saxon Customary Law

(...)Anglo-Saxon law had no category for crimes against the state or against society -- it recognized only crimes against individuals. As in other customary legal systems, the moots typically demanded that criminals pay restitution or composition to their victims -- or else face the hazards of outlawry and blood-feud. Murderers owed wergeld (literally, " man-money" ) to their victims' kin. Lesser criminals owed their victims lesser fines, elaborately graded according to the victim's status and the importance of the limb, hand, digit, fingertip, etc., that had been lost. In recognition of the importance of private property, heavier penalties were also imposed for crimes occurring in or about the home, the most serious being hamesucken, i.e. smashing up someone's house.

This emphasis on the home reflected Anglo-Saxon law's concern with protecting property rights, including the notion of a protected private space. The law codes of early medieval Europe consisted largely of lists of offenses and the corresponding schedules of payments. In issuing these, Kings were not legislating in the modern sense: they were rather codifying and declaring already existing custom and practice. Like the surety groups, the moot courts depended on voluntary cooperation. Berman writes that

Jurisdiction in most types of cases depended on the consent of the parties. Even if they consented to appear, they might not remain throughout, and even if they remained, the moot generally could not compel them to submit to its decision. Thus the procedure of the moot had to assume, and to help create, a sufficient degree of trust between the parties to permit the system to operate...(Berman, 1983, p. 56)

This Anglo-Saxon customary legal system protected the liberties of the English long and well. Royal law rose to domination only after a bitter struggle, and even then the lasting imprint of customary law helped England to remain a relatively free society. (...)

The Persistence of Polycentric Law

Although state legal systems have amassed immense monopolistic powers, they have never entirely quashed competition among legal systems. States themselves compete to attract human and financial capital. And the law merchant has continued to survive in a realm safely beyond the reach of any one state's laws: international trade. But even within state boundaries polycentricity has survived into modern times.

In recent years, however, privately produced law has grown most rapidly in an area where it competes directly with state law: commercial arbitration.

By the seventeenth century royal courts had absorbed or abolished the local functions of the law merchant. But disruptions in trade caused by the American Civil War triggered a resurgence in commercial arbitration. The war had clogged English courts with cases relating to the uncertain U.S- British cotton trade. Members of the Liverpool Cotton Association tried inserting arbitration clauses into their contracts. Their experiment succeeded, and soon arbitration spread to other trade associations, professions, and countries. (See William C. Woolridge, Uncle Sam, The Monopoly Man [New Rochelle, NY: Arlington House, 1970], pp. 94-110.)"

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