Anarchy, Efficiency and the Common Law -by David Friedman

I have argued that there is reason to expect  a system in which legal rules are generated by firms competing

in a private market  to produce efficient rules.

Richard Posner has argued that there is considerable empirical evidence to suggest that the actual rules of angloamerican common law are efficient.

This raises an obvious and interesting question: can the mechanisms I have been describing explain the observed efficiency of the common law?

I do not know the answer to that question.

Certainly some forms of competitive law have contributed to the creation and development of the common law.

The common law had its origin in the legal system of AngloSaxon England,

whose early form involved a large element of private enforcement and private arbitration.[23]

It evolved in an environment of multiple court systemschurch, royal, and localwhere

litigants had at least some control over where their disputes were resolved.

Some common law rules originated as private norms,

and I have argued that norms are produced on something like a competitive market.

Some rules may have been borrowed from the medieval Fair Courts, which had some of the characteristics of the system I have described.

It is thus possible that what Posner observes in present day common law is fossilized efficiency, produced

by institutions that no longer exist[24] and preserved by the conservative nature of the common law.

That conjecture is consistent with the observation that the efficiency of the common law seems to have decreased

over time, at least in this century, with the long retreat from freedom of contract providing the most striking example.

It is also consistent with Posner\'s claim that it is common law, not legislated law, which tends to be efficient.

But it would require a much more extensive knowledge of the history and content of the common law

than I have to say whether such a conjecture provides a plausible account of such efficiency as modern common law possesses.[25]

In any case, the principal purpose of this chapter is not to offer a solution to the puzzle of why the common law is efficient,

supposing that it is. My purpose is to show why the law generated by the institutions of private property anarchy

would tend to be efficient, and to explore some of the limitations of that tendency.

Although the arguments I offer do not imply anything like a perfectly efficient legal system, they may provide better reasons

to expect efficient law under anarchy than we have to expect efficient law under other forms of legal system, including the sort we now have.

David Friedman


















また、 その傾向のいくつかの制限条件を探ることにある。

posted by libertarian at 19:25| Comment(0) | TrackBack(0) | David Friedman | このブログの読者になる | 更新情報をチェックする
お名前: [必須入力]



コメント: [必須入力]