New Testament texts such as Romans 13:1–7 and 1 Peter 2:13–17 teach Christians to honor and submit to civil authority. Christian legal and political thought, accordingly, has debated whether and when resistance to unjust laws is permissible. But a more basic—although not unrelated—question is which norms of conduct are to be considered law in the first place.
The question is relevant for judges, of course, but it can also confront ordinary people in the mundane course of life. One might imagine a person who moves into a rural ranching community. In addition to the internal challenges of running her own ranch, she soon discovers many potential areas of conflict with her neighbors, such as maintaining boundary fences and dealing with animals that wander onto others' property and onto roads with automobile traffic. As these issues arise and she tries to deal with them collegially, she begins to realize that statutory provisions and state courts play little role in how her neighbors resolve their conflicts. They settle almost all of their disputes privately, and do so according to their own unwritten set of rules.Footnote 1 What is this person to do if she wishes to be a law-abiding citizen? Is she to think of the law governing her relations with her neighbors only in terms of rules, regulations, and decisions deriving from governmental bodies or also—and perhaps even primarily—in terms of the unwritten norms and procedures for dispute-resolution that in fact order many aspects of her new community's life?
In many diverse areas, people's actual conduct is under-determined by, and sometimes even in tension with, official state sources of law. In addition to the fact-based scenario recounted above, examples include how fast people drive, purchase and use of narcotics,Footnote 2 and response to the presence of undocumented persons in a society. Such examples raise the question whether law is a monocentric or a polycentric phenomenon. That is, does law originate from a single source (the actions of state officials) or from multiple sources (including the innumerable associations and institutions that constitute broader civil society)? To put it another way, is law a top-down phenomenon or is it also, and perhaps even primarily, a bottom-up phenomenon?
Although “the very idea that the law might not be identical with legislation seems odd both to students of law and to laymen,”Footnote 3 a number of scholars of law and related disciplines have defended versions of polycentrism in recent decades.Footnote 4 Legal polycentrism is not the province of any particular political ideology. Its proponents (only some of whom use the term “polycentrism”) include classical liberals,Footnote 5 members of the “radical-left,”Footnote 6 anarchists (or something close),Footnote 7 and prominent scholars who reveal no clear ideological commitments in their relevant writings.Footnote 8 These proponents have defended polycentrism—and its critics have tried to refute it—from various moral, economic, and historical angles. To my knowledge, however, no contemporary writer has examined polycentrism from a Christian theological perspective. Yet there are good reasons for doing so. On a practical level, traditional Christian moral teaching holds that Christians are ordinarily obligated to obey properly constituted legal authorities, and thus all Christians, and especially those who are lawyers or pursue other vocations within the legal system, have great interest in knowing what the law truly is. On a theoretical level, the recent renaissance of Christian legal scholarship should provide interest and resources for such an inquiry.Footnote 9
In the absence of such a study heretofore, this article attempts to evaluate legal polycentrism from a Christian theological and jurisprudential perspective. For the sake of clarity and uniformity, I use the following four terms: First, state sources will refer to various acts of government that seek to regulate conduct, such as legislation, administrative regulations, and judicial decisions. Second, non-state sources will refer to various acts of private actors or voluntary associations that aim to regulate relations among the parties involved. Third, I refer to the customary order as the patterns of conduct to which members of a society ordinarily adhere as a matter of fact. And fourth, law will refer to the norms of conduct regarded as obligatory in the sense that society regards penalties and/or remedies as due if these norms are violated.
The Christian scriptures and Christian theology do not directly address whether law is polycentric or monocentric. Nevertheless, appealing to a number of biblical-theological issues—including the image of God, the Noahic covenant (Genesis 8:21–9:17), wisdom, and the purpose of civil government—I argue that Christians have good reason to regard polycentrism as a more satisfactory view of law. This conclusion has precedent in the history of Christian thought. Thomas Aquinas defended polycentric views in the midst of his most comprehensive theological work,Footnote 10 and later Thomistic scholars such as Francisco Suárez followed suit.Footnote 11 Johannes Althusius (1557–1638) and Abraham Kuyper (1837–1920), important social thinkers in my own Reformed tradition, also espoused polycentric ideas.Footnote 12 To make my case, I first offer some preliminary discussion of the issues on the table and then identify pertinent biblical-theological ideas and their theological-jurisprudential implications. I conclude by reflecting on how the preceding analysis might shape how we determine what is truly the law in cases in which state sources and the customary order conflict.
WHAT IS THE LAW? MONOCENTRIST AND POLYCENTRIST OPTIONS
Before I evaluate polycentrism, it will be helpful to describe monocentric and polycentric visions of law in more detail. The school of legal positivism has provided some of the most popular and influential definitions of law in recent centuries, and it provides an excellent example of a monocentric legal perspective.Footnote 13
Positivists envision law as a set of commands imposed by political authorities upon members of society. The authorities that issue law may be morally obligated to decree what is just, but their decrees are “law” regardless of the good or evil they accomplish. As the nineteenth-century positivist John Austin put it, law is “set by political superiors to political inferiors;” it is a “rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”Footnote 14 Every law is a command.Footnote 15 Broadly speaking, therefore, “law” is simply and strictly the “aggregate of the rules thus established.”Footnote 16 The sovereign power is legally free to abridge subjects' political liberty at its own pleasure, although doing so may be contrary to positive morality and the law of God.Footnote 17 Similarly, twentieth-century positivist Hans Kelsen emphasized that his “pure theory of law” identifies what the law is, not what it ought to be.Footnote 18 Law represents “coercive orders,”Footnote 19 and such orders command “specific acts or omission of acts.”Footnote 20 This classic positivist vision is thus monocentric because, to use terms identified above, law emanates only from state sources.
In contrast, polycentrism holds that there are multiple sources of law, of which state sources are (at most) one, and perhaps not even the most important. Polycentrists do not share a common definition of law, but they all reject conceptions of law as the sum of commands from political superiors to inferiors in favor of law as a complex normative order or system, or patterns of conduct, or an ordering principle.Footnote 21 Polycentrism has some affinities with classical natural-law theory, the vision of law ordinarily contrasted with positivism, but it is important to note that none of the recent prominent proponents of polycentrism are natural lawyers in a classical sense and that some natural lawyers are monocentric in outlook.Footnote 22
What are the non-state sources of law, according to these polycentrists? Among the most fecund sources are voluntary associations—“labor unions, professional associations, clubs, churches, and universities”—insofar as they create many norms guiding daily behavior.Footnote 23 A second example are contracts that private parties enter voluntarily in the course of ordinary relationships, which create enforceable rights and duties.Footnote 24 Another example is how participants in various fields of commercial enterprise develop common practices that define how they do business.Footnote 25 In general, whatever non-state norms shape the understanding and interpretation of law are alternative sources of legal obligation.Footnote 26
Polycentrists recognize not only multiple sources of law but also multiple means for enforcing law. They point especially to the widespread use of mediation and arbitration to resolve disputes outside of civil courts.Footnote 27 They also note how certain communities develop cooperative, self-help measures that bypass state-controlled judicial procedures.Footnote 28 As Robert Ellickson puts it, the idea that “governments monopolize the control of misconduct” is “utterly false,” a “blunder that dates back at least to Thomas Hobbes.”Footnote 29
As these examples demonstrate, polycentrists do not simply assert that there ought to be multiple sources of law but claim that there are in fact multiple sources. Many of them have argued that the Western legal tradition is polycentric to the core. In his magisterial study of the origins of the modern Western legal tradition in the Middles Ages, Harold Berman comments:
Perhaps the most distinctive characteristic of the Western legal tradition is the coexistence and competition within the same community of diverse jurisdictions and diverse legal systems. … The conventional concept of law as a body of rules derived from statutes and court decisions—reflecting a theory of the ultimate source of law in the will of the lawmaker (“the state”)—is wholly inadequate to support a study of a transnational legal culture. … From this broader perspective the sources of law include not only the will of the lawmaker but also the reason and conscience of the community and its customs and usages. … In the formative era of the Western legal tradition there was not nearly so much legislation or so much precedent as there came to be in later centuries. The bulk of law was derived from custom, which was viewed in the light of equity (defined as reason and conscience). It is necessary to recognize that custom and equity are as much law as statutes and decisions, if the story of the Western legal tradition is to be followed and accepted.Footnote 30
Some polycentrists have pointed to old Roman law and English common law notions that governmental institutions exist more to discover and recognize the law than to make it.Footnote 31 Others have admired the ability of various medieval societies to make and enforce law effectively with little or no centralized political authority.Footnote 32 For example, several polycentrists have studied the medieval development of the lex mercatoria, a transnational body of norms and courts that merchants developed and administered for themselves across European borders.Footnote 33 Many centuries later, high-seas whalers, working far outside the bounds of any political society, formed detailed but unwritten rules regulating how competing ships hunted and claimed whales.Footnote 34 In the case of both the Law Merchant and the whalers, many civil courts came to recognize these privately developed rules.Footnote 35
Among more recent examples, several polycentrist writers discuss how the Uniform Commercial Code, widely adopted by the American states, explicitly grants binding force to customary commercial practice.Footnote 36 Quite fascinating is Ellickson's study of ranching communities in Shasta County, California, in the 1980s, which largely governed themselves through unwritten norms and dispute-resolution procedures often at variance with statutory provisions (as described in this article's introduction).Footnote 37 The building and development of Brasilia provides another pertinent example. According to James C. Scott, an unplanned Brasilia grew up spontaneously around the carefully planned official city, and the former needed and was sustained by the latter, in a symbiotic relationship.Footnote 38 Based on this and several other cases, Scott concludes that every formal organization depends upon “implicit understandings, tacit coordinations, and practical mutualities that could never be successfully captured in a written code” and that “all socially engineered systems of formal order are in fact subsystems of a larger system on which they are ultimately dependent, not to say parasitic.”Footnote 39 According to David Bederman, “[c]ustom continues to permeate almost all realms of contemporary law” and remains a mechanism for “bottom-up” lawmaking.Footnote 40
To summarize much of the preceding discussion: First, advocates of polycentrism believe that law—understood as an ordering principle or as normative patterns of conduct—originates from a multiplicity of sources and not simply from state sources. A host of human communities are jurisgenerative, to borrow Robert Cover's terminology.Footnote 41 Second, according to polycentrism, many laws arise spontaneously, as the product of human action but not through deliberate decision or conscious intent. As F. A. Hayek put it, it is a “fiction that all law is the product of somebody's will.”Footnote 42
In many respects, it is indisputable that non-state actors create governing norms, often without intent or deliberation. Even positivist judges, after all, enforce private contracts, bylaws of voluntary associations, standard commercial practices, and the like. Positivists may counter that they enforce such things because the higher law of the political sovereign commands them to do so.Footnote 43 Yet polycentrists, observing the grand, bustling, complex customary order and how little of what transpires within it is the result of government mandates, understandably find it implausible when positivists insist that law represents coercive orders that instruct people to perform or refrain from specific acts.Footnote 44 They rightly wonder why “the rule of the intermediate group … has been systematically marginalized in legal theory for the past few centuries.”Footnote 45
But dismissing crass versions of positivism still leaves deeper and more difficult questions. It is one thing for courts to recognize aspects of the customary order as law and to enforce them as such when they protect parties' reasonable expectations, fill gaps between statutes, and do not contradict any state sources. But what about when they lie in tension with the latter? Should courts and ordinary people, at least at times, consider aspects of the customary order to be law rather than state sources?
An affirmative answer, however controversial, has a place in the Western legal tradition. The greatest document in the Roman law tradition, Justinian's Digest, not only prescribes that where there is “no applicable written law … the practice established by customs and usage” ought to be followed but also states: “statutes themselves are binding upon us for no other reason than that they have been accepted by the judgment of the populace.” According to this reasoning, enacted statutes become legally obligatory only after they receive popular confirmation. This implies that social customs enjoy a kind of veto power over official legislation, which the Digest explicitly asserts: “It is absolutely right to accept the point that statutes may be repealed not only by vote of the legislature but also by the silent agreement of everyone expressed through desuetude.”Footnote 46 Justinian's Institutes adds, “The laws of nature, which are observed by all nations alike, are established … by divine providence, and remain ever fixed and immutable: but the municipal laws of each individual state are subject to frequent change, either by the tacit consent of the people, or by the subsequent enactment of another statute.”Footnote 47
Thomas Aquinas incorporated this perspective into his theological system. Writing in the wake of a revival of Roman law in Western Europe,Footnote 48 Aquinas followed Isidore of Seville's opinion that human law should be “according to the customs of the country.”Footnote 49 Later Aquinas claimed that human law, which proceeds “from the will of man, regulated by reason,” can be manifest by both speech and action. Thus, not only by legislation but “by actions also, especially if they be repeated, so as to make a custom, law can be changed and expounded.” He concludes: “Accordingly, custom has the force of a law, abolishes law, and is the interpreter of law.”Footnote 50 When exercising this veto power over official legislation, custom “shows that the law is no longer useful.”Footnote 51
The Anglo-American legal tradition may not seem amenable to such a perspective, given the English idea of parliamentary sovereignty. Yet this tradition has always left much of the work of legal ordering to the common law, a body of law developed independently of legislative institutions. The relationship of the customary order and the common law is a complicated matter, but the former certainly did play a significant role in shaping the latter, although in changing ways over time.Footnote 52 In one of the most famous of all English judicial decisions, Dr. Bonham's Case (1610), Chief Justice Sir Edward Coke and the Court of Common Pleas ruled, “It appeareth in our Books, that in many Cases, the Common Law doth controll Acts of Parliament, and sometimes shall adjudge them to be void: for when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void.”Footnote 53 This suggests that common law trumps parliamentary acts when justice and reason are on the former's side,Footnote 54 which was also Aquinas's opinion.Footnote 55 According to Bederman, “even today there may be situations where the conditions of statutory desuetude may be occasionally accepted by courts,” although he admits it is difficult to find true examples.Footnote 56 The practice of jury nullification in the Anglo-American tradition seems to represent one contemporary way by which a groundswell of popular sentiment may veto official legislation.
With this background in hand, we are ready to begin a theological evaluation of polycentrism. We have seen, on the one hand, that monocentrists think of law in terms of state sources only; on the other hand, polycentrists believe that the law primarily resides in the customary order, which is shaped both by state and non-state sources. In the next section, I present several biblical-theological considerations that provide important background for considering the merits of polycentrism, and then in the following section I unpack some theological-jurisprudential implications suggesting that polycentrism is a more satisfactory view of law from a Christian perspective. Only then do I turn specifically to cases of conflict between state sources and the customary order.
THE BIBLICAL-THEOLOGICAL BACKGROUND
In this section, I largely refrain from direct comment about polycentrism. My goal here is to unpack several biblical-theological themes—particularly the image of God, the Noahic covenant, wisdom, and the vocation of civil government—that are foundational for developing a conception of law. I directly explore the implication of these themes for an evaluation of polycentrism in the following section.
The Collaborative Human Cultural Calling
Christian theology holds that God created human beings in the divine image. This is the first thing the Hebrew Bible says about humanity: “Then God said, ‘Let us make man in our image, after our likeness.’ … So God created man in his own image, in the image of God he created him; male and female he created them” (1:26–27).Footnote 57 Even after describing the fall into sin, for which God placed human beings under a curse (3:16–19), Genesis continues to say that humans bear God's image (9:6). Thus, according to Scripture, God endowed humanity with the image of God in creation and it remains even in a fallen world.Footnote 58
The broader Christian tradition has no universally accepted definition of the image of God. Western theology has often emphasized the rational and volitional faculties of the human soul as the primary locus of the image, although recent biblical scholarship on Genesis 1 has provided enriched resources for theological reflection.Footnote 59 Drawing on this newer literature, although with respect for older ideas, I highlight two aspects of biblical teaching on the image of God important for our consideration of polycentrism. First, creation in the image of God entails a commission to engage in creative activity. God created human beings in his image so that they might “have dominion over the fish of the sea and over the birds of the heavens and over the livestock and over all the earth and over every creeping thing” (Genesis 1:26),Footnote 60 a commission elaborated two verses later: “Be fruitful and multiply and fill the earth and subdue it and have dominion over the fish of the sea and over the birds of the heavens and over every living thing that moves on the earth” (Genesis 1:28)—a call to benevolent rather than exploitative rule over the rest of creation. Second, Scripture ascribes the image of God to all people indiscriminately, including both male and female. The image of God entails ruling authority, but an authority shared by all alike, without elevating anyone inherently over another.
Does the image continue to entail this commission even after primordial humanity failed its image-of-God commission (Genesis 3)? The post-diluvian covenant with Noah (8:21–9:17) suggests a qualified positive answer.Footnote 61 The account of this covenant refers to human beings as divine image-bearers (9:6) and includes moral exhortation (9:1–7). This exhortation twice repeats the command from Genesis 1:28 that human beings are to be fruitful, multiply, and fill the earth (9:1, 7). Although it does not repeat the commands about exercising dominion or subduing the other creatures, it does address human rule by regulating human treatment of animals (9:3–4) and by delegating authority to the human race to administer justice (9:6). Thus, I conclude that the image of God continues to entail the original commission of Genesis 1:26–28, but in a refracted form suitable for a fallen world.
The Noahic covenant has a programmatic character.Footnote 62 The preceding texts describe God sending the great flood as a radical judgment upon the corrupt human race (Genesis 6–7) and then undertaking a re-creation of the world, in which Noah and his family constitute the origin of a new humanity (Genesis 8:1–20). God proceeds to make a covenant with the human community as a whole—Noah and all his progeny (9:8, 11–12, 15)—as well as with all living creatures (9:10, 12, 15–17), the earth (9:13), and even the broader natural order (8:22). God promises no forgiveness of sins or everlasting beatitude but simply the preservation of the world from another great flood (8:21; 9:11, 15), and this for only as long as “the earth remains” (8:22). This is a universal covenant of preservation, in force until the end of the present world.Footnote 63 In contrast, later biblical covenants are particular, setting aside a chosen people from within the human race for whom God does great works of salvation. The Noahic covenant is programmatic, therefore, insofar as it establishes the basic relationship of God with the human race in general, that is, with people as image-bearing human beings (rather than with people as Israelites or Christians, as in later biblical covenants). It establishes a moral commission for the whole human race as divine image-bearers.Footnote 64
This Noahic commission, however, identifies general activities or ends for image-bearers to pursue, but provides no master plan for how to carry out these activities or to achieve their ends. The covenant is striking for the generality and minimalist character of its moral commission: multiply and fill the earth, eat plants and animals with proper restraint, and administer justice. Genesis 9:1–7 also provides no authorization for a select person or group of people to dictate a plan for carrying out this general commission. As we might expect, given the universal human endowment with the image in Genesis 1, the Noahic covenant puts all people on a level playing field when it comes to worth and dignity: the talionic logic of Genesis 9:6—”whoever sheds the blood of man,Footnote 65 by man shall his blood be shed”—is that the lives of any two human beings are of equivalent value.
Thus, the Noahic covenant sets forth a general commission, but provides no concrete plan for achieving it and no governing body to create such a plan. How then was the human race to pursue its commission? At this point the inquiry requires some imagination, but I propose that the biblical account leaves it to human beings to pursue their commission through an experimental, collaborative effort in which each person honors every other as of equal worth and dignity. Accomplishing the three general tasks constituting the Noahic commission obviously requires the establishment of corporate associations: to multiply and fill the earth calls for familial institutions; to supply food for a growing population requires enterprise associations that promote hard work and technological development; and to administer justice demands judicial institutions for resolving disputes. People presumably must develop authority structures alongside these institutions to enable their effective operation; but since all people are of equal worth and dignity, these authority structures ought to develop organically and consensually, rather than as the coercive imposition of one person's will over another.
The Communal and Cumulative Acquisition of Knowledge
This idea that human beings are to pursue a divinely given commission through the organic and consensual development of various institutions and authority structures raises an important question: how can they pursue such a complex task with appropriate understanding, such that the institutions and authority structures they establish are productive, beneficial, and just? To answer this question, I introduce wisdom, another important biblical-theological theme. The Christian Scriptures present wisdom as essential for individuals and communities to gain understanding about how to live well in this world. More than any other biblical book, Proverbs abounds with instruction about how to grow in wisdom toward this end, and in so doing it pays special attention to matters of family, work, and justice that the Noahic covenant highlights. Thus, it is worth reflecting on how human beings develop wisdom, according to Proverbs. In what follows I assume that wisdom, in Proverbs, is not memorization of a list of clear-cut rules or the like, but a kind of perception of how the world operates and of what sort of behavior will be effective and appropriate in a concrete situation, in light of all relevant circumstances,Footnote 66 as well the skill to put this perception into practice.Footnote 67
One way to summarize is that developing wisdom is a communal process.Footnote 68 That is, wisdom is acquired through participation in communities and is the work of a lifetime (on an individual level) and of generations (on a communal level). Individuals may begin developing wisdom already as children, as they pay attention to the instruction of their parents (Proverbs 1:8–9), who pass understanding down to them (22:6). As they grow older, individuals continue to learn wisdom by relying upon others. They seek insight from a multitude of advisors (15:20; 13:20) and modify their course when people rebuke or correct them (10:8; 12:15; 19:20). They also learn from others indirectly through observation and reflection on the experiences of life.Footnote 69 Such people gain wisdom by pondering the sluggard, for example, whose property falls into ruin when he refuses to be industrious (24:30–34), and by pondering the foolish youth, who falls into deep trouble when seduced by a married woman (7:6–23). In this process, people constantly seek new insight that they incorporate into the body of knowledge learned previously, analogizing less clearly known things to things better understood.Footnote 70
From Proverbial perspective, therefore, understanding how to live productively, beneficially, and justly in this world is acquired by a communal and cumulative process. As they heed instruction, seek counsel, observe others' conduct, and reflect upon the outcomes of different ways of life, people gain access to a treasury of wisdom that has been building from generation to generation. Much more knowledge resides in communities than any individual can ever absorb. Yet as their ancestors learned from their parents, refined what they inherited, and passed their understanding along, so also the wise do today, in hope of winning and transmitting some share of that cumulative insight.
The acquisition of wisdom is directly relevant for law. This was true for the Old Testament law. Although the Mosaic law claims to originate from God on Mount Sinai, it never suggests that Israelite life should be a mindless obedience to rules. For one thing, biblical law often takes narrative form, prescribing right conduct and proper remedies through cases studies rather than abstract precepts. Understanding how a particular dispute resembled the relevant case study (or not) and thus how to dispose of the dispute justly required sharp perception and good judgment.Footnote 71 Furthermore, the Old Testament law was incomplete, in the sense that it does not address many areas of human life and addresses others only briefly. In dealing with these areas, judges and ordinary people apparently needed to make wise use of other legal sources, such as customary law and common legal notions throughout the ancient Near Eastern world.Footnote 72 The Mosaic law did not provide exhaustive rules, but taught the people wisdom,Footnote 73 which they clearly needed to live under the law in life's concrete situations.
Reflecting on the fact that the Mosaic law was meant to teach wisdom draws one's mind also to Proverbs. This book indicates that wisdom is (or ought to be) crucial for the civil law of all nations, not just ancient Israel's. Proverbs not only speaks about the importance of wisdom for justice and civil authority on numerous occasionsFootnote 74 but also claims that “all who govern justly” rule by wisdom (8:15–16).
The Role of the State
I turn finally to civil government, or the state. The Noahic covenant itself does not establish civil government. God delegates authority to administer justice against wrongdoers, but only in the most general terms: “by man shall his blood be shed” (Genesis 9:6). The Noahic covenant, therefore, leaves administration of justice to what I have called the experimental, collaborative, organic, and consensual process of developing institutions and authority structures. In the course of history, this process has obviously produced civil governments. But if this is the case, these civil governments are inevitably linked to the process. Government may even come to assert an important influence on the process of developing institutions and authority structures, but the process itself is more fundamental.Footnote 75 From the perspective of the foundational Noahic covenant, government is only legitimate insofar as developed by human beings pursuing a creative and collaborative commission in accord with their nature as divine image-bearers. Thus, the establishment of government does not entail destruction of this pursuit, which would be like trying to destroy the foundation once a house is built upon it. To put it another way, the formation of civil government does not entail suppression of the ongoing organic and consensual creation of a host of institutions and authority structures.
Biblical texts that speak directly about civil government suggest the truth of the previous claims extrapolated from the Noahic covenant. For example, the two most prominent New Testament texts on civil authority, Romans 13:1–7 and 1 Peter 2:13–17, do not institute civil government but merely confirm the authority of a government that already exists. They presuppose the long process of human pursuit of the Noahic commission that eventually, in a particular place and for a limited time, produced the government of Rome. Scripture nowhere, in fact, gives de novo authorization for an organization we call government or the state.
It is also worth noting that these New Testament texts do not recognize any monopolistic authority of government officials to make or enforce law. The magistrate “bear[s] the sword,” according to Paul, but does so as “the servant of God, an avenger who carries out God's wrath on the wrongdoer” (Romans 13:4). A striking effect of the text is to humble boastful claims of political rulers and to place them firmly under an authority higher than themselves, with obligation to enforce an order of justice that transcends them. Romans 13 confirms the legitimacy of civil magistrates while simultaneously stripping them of pretentions to absolute power. A number of Old Testament texts press in the same direction. One of the more noble Gentile rulers in the Old Testament, King Abimelech of Gerar, makes a relatively good impression precisely because he recognizes that there are “things that ought not to be done” and feels constrained by a certain “fear of God” (Genesis 20:9, 11). Through the Old Testament prophets, furthermore, God held many Gentile nations accountable for heinous acts of injustice. In the powerful sequence of oracles in Amos 1:3–2:3, for example, God condemns several of Israel's neighbors for deeds such as slave-trading, treaty-breaking, ripping open pregnant women, and desecrating the dead. The prophet Daniel also witnessed the divine humiliation of the mighty Nebuchadnezzar when Nebuchadnezzar exalted himself, refused to acknowledge his divine overlord, and failed to exercise justice (Daniel 4).Footnote 76 In both Old and New Testaments, therefore, government officials bear an impressive authority—not autonomous authority to do what is right in their own eyes, however, but authority to enforce a justice that brings benefit to the people they serve and reflects the righteousness of God.
THEOLOGICAL-JURISPRUDENTIAL IMPLICATIONS
In the previous section I discussed several biblical-theological themes crucial for Christian reflection on law and public life. I now turn to explore their implications for the chief question before us: How should Christians evaluate the claims of legal polycentrism? To undertake this, I revisit these themes in the order considered above and put them into conversation with jurisprudential issues important to monocentric-polycentric debates. I argue that each of the biblical-theological themes offers reasons to think that polycentrism is a more satisfactory view of law.
Polycentrism and the Collaborative Human Calling
According to a biblical conception of the image of God, I argued above, human beings have a divine commission to pursue creative activity and to exercise a benevolent rule in this world. Furthermore, God has endowed all human beings with this image indiscriminately and equally. When God reaffirmed humanity's image-bearing status in the Noahic covenant, he neither provided a master plan for putting the commission into concrete practice nor installed certain individuals with a special privilege of creating and imposing such a plan. Instead, the Noahic covenant appears to leave the human race to pursue its task through an experimental and collaborative process in which all should have a share.
The formation of law and legal systems is part of this process. The development of familial institutions and enterprise associations requires social norms that regulate human activities and relationships, and the development of judicial institutions requires rules and procedures for dealing with violations of these norms. Thus, the question before us is whether a monocentric or polycentric conception better captures the idea that the formation of law ought to be a collaborative process that treats all people as participants in the image-bearing divine commission.
Considered in this light, there is a strong prima facie case for polycentrism. Insofar as it envisions a plethora of sources of law, many of which stem from the private and voluntary interactions among ordinary people, polycentrism makes law-formation a collaborative and inclusive process by definition. One might reply, from a monocentrist perspective, that holding state officials democratically accountable also captures the desired collaboration and inclusiveness. Nevertheless, while a robust democratic polity may indeed help a monocentric legal system to capture these concerns to some degree, I suggest that there are good reasons to conclude that polycentrism honors the goals of collaboration and inclusiveness much more satisfactorily. Two considerations invoked by polycentrists illustrate why this is the case.
Knowing the Law
The first consideration is that the law that ordinary people actually know—that is, the norms that in fact structure their lives and guide their expectations—is found in the customary order and not in state sources per se. State sources direct ordinary people's lives only insofar as these source's norms have been incorporated into the customary order, which many non-state sources have also shaped. Given this reality, to treat state sources alone as the law, along monocentric lines, is to make the law largely unknown to the mass of people it allegedly governs. And if ordinary people do not know the law, they can hardly be said to share in the process of law-formation in a collaborative and inclusive manner.
This basic argument draws upon common polycentrist concerns. Many polycentrists have emphasized that people should know the law that rules them, both for the stability of a legal systemFootnote 77 and for the dignity of the people themselves.Footnote 78 Yet it seems clear that most people know very little about what state sources say,Footnote 79 and it would be tedious, complicated, and expensive for them to try to find out. Perhaps this only bothers them slightly because they figure that the law that truly governs them is not found in state codes or court reports anyway.Footnote 80 Yet there is a real danger of being caught by an unknown rule lurking in one of these volumes. According to Harvey Silverglate, the average American professional unwittingly commits several federal crimes in the course of a typical day. For the most part, no harm follows, but it poses a lingering threat and makes the ordinary person vulnerable to unexpected, arbitrary, or vindictive action on the part of law enforcement.Footnote 81
Polycentrists note that the customary order is what ordinary people actually do know, and what structures their lives.Footnote 82 People do not understand their communal obligations as a collection of rules they can name, but as patterns of expected and appropriate behavior. Our varied and complex legal materials “present not only bodies of rules or doctrine to be understood, but also worlds to be inhabited. To inhabit a nomos is to know how to live in it.”Footnote 83 Furthermore, knowledge of the customary order comes largely by perception and intuition, gained not by the study of books but by actually living in concrete communities, observing others' patterns of conduct, and making those patterns one's own as a kind of habit.Footnote 84 Since the customary order is what people actually know and expect others to follow, recognizing its norms as law protects ordinary expectations in ways that application of state sources alone cannot.Footnote 85 Although the polycentrists expressing these jurisprudential concerns do not put it in the biblical-theological terms discussed above, I suggest that their concerns capture the collaborative and inclusive character of law in ways that even a democratically accountable monocentric legal system cannot.
Interpreting the Law
The second consideration builds on the first. If the law is to be known by ordinary people, it must be coherent; that is, the law must have an integrated systematic consistency.Footnote 86 No one can understand a body of law that consists of a jumble of unrelated or even contradictory rules. But the coherence of law depends upon judicial interpretation of law being as uniform as possible. When judges interpret applicable rules in different ways, the law becomes inconsistent and unpredictable. And when ordinary people do not know how to interpret applicable rules in ways that match the interpretation of judges, they will not know how to live under those rules. The collaborative and inclusive nature of a legal system, therefore, demands that judges and ordinary people share some common way of interpreting the law.
If I am to clarify how this lends support to polycentrism, some background comments on interpretation are in order. No legal rule, even the most perfectly worded statute, is an island to itself whose meaning can be entirely determined from within. At the very least, statutes use words borrowed from an already existing language, and the ability to read and understand that language requires immersion in a universe of meaning. Languages emerge within specific cultural contexts and constantly develop in response to that culture's communication needs. Thus, reading a statute well inevitably depends upon understanding the culture in which it exists, with its convictions, biases, and assumptions.Footnote 87 But language changes, cultures change, and judges often do not share the same convictions, biases, and assumptions, with each other or with the drafters of the statute. To be useful, legal rules must be interpreted, and in a thousand ways this can be a daunting and controversial endeavor.
A central question for jurisprudence, therefore, is how to achieve relative uniformity, and thus coherence, in interpreting legal rules. What are the possible options and do any of them promise success?
In expounding his influential theory of “law as integrity,” Ronald Dworkin is certainly correct that judges cannot completely separate themselves from their personal convictions, although he attempts to keep judges rooted in a broader tradition by making them participants in a narrative chain of judicial decisions. Yet the “political morality” that guides Dworkin's judges is ultimately each judge's own philosophy. His ideal judge—tellingly dubbed “Hercules”—has the ability to perceive the purest form of the law through his own political judgment.Footnote 88 This is not a recipe for achieving relative uniformity of interpretation, for judges inevitably disagree about political morality. Thus, Dworkin's “law as integrity” does not provide a background context that judges share in common.
What can serve as common background context? The legislature cannot simply decree one. A background context involves perspectives, biases, and assumptions. A context is a holistic universe that shapes the meaning of things within it. A legislature can promulgate rules but it can hardly generate a context.Footnote 89
A more promising option is to find a common background context not in legislative decree but in a wisdom internal to the judiciary. Many jurists have found such a wisdom in the common-law tradition. Coke wrote of the “artificial reason” of the common law, distinct from pure natural reason. Jurists gain it through long experience, by which they make the law's reason their own.Footnote 90 In Coke's vision the experienced judge gains learning and judgment and attains mastery in an art.Footnote 91 According to James Stoner, common law judges were trained in Aristotelian practical wisdom.Footnote 92 Similarly, Karl Llewellyn described common-law appellate judging as a kind of craftsmanship, an inexact science requiring “horse sense.”Footnote 93 Over against legal realists' skeptical challenges to this tradition,Footnote 94 Roscoe Pound defended the ability of common law wisdom to build objectivity and impartiality in the judges who embraced it.Footnote 95
If it exists, such a shared judicial wisdom approaches what we seek, a common background context for legal interpretation. But there is still reason to doubt its adequacy. As internal to the judiciary, this wisdom risks becoming esoteric, self-referential, and isolated from the real world whose disputes it adjudicates. It acculturates judges into a craft and art that is, by definition, inaccessible to the non-judge.Footnote 96 Thus, if law is to be accessible to ordinary people, internal judicial wisdom in Coke's sense is not a sufficient common background context for interpretation.
What seems necessary is that the internal judicial wisdom correspond as much as possible to the wisdom internal to the customary order. The development of an artificial reason and distinctive horse sense among the legal profession through uniform practices of acculturation can undoubtedly promote relative uniformity of interpretation of laws, but there needs to be a reciprocity between them and the common reason and common sense of the broader society.Footnote 97 The legal profession, and judges in particular, ought to keep their lawyer-like thinking tethered to the way they think as ordinary participants in their communities and open to testimony about the assumptions and practices of the customary order.
In short, the coherence of law, and hence the ability of ordinary people to know it, requires that judges, like the people whose disputes they adjudicate, regard the customary order as part of the legal fabric. When judges interpret even state sources against the background of the customary order (shaped in large part by non-state sources), their decisions become accessible to ordinary people in ways difficult to achieve otherwise. Thus, here is another reason why polycentrism promotes the biblical-theological ideal that law develop through a collaborative and inclusive process.
Polycentrism and the Acquisition of Knowledge
The second part of the biblical-theological discussion above argued that, if the human race is to develop law that is beneficial and just, it must acquire knowledge in the proper way. Drawing upon Proverbs, I suggested that this entails growth in wisdom, and that individuals and communities grow in wisdom through a communal and cumulative process in which one generation imparts an inheritance of understanding to the next generation, which must imbibe, cultivate, and refine this inheritance. Here I argue that a polycentric conception of law is able to capture these concerns in ways that a monocentric conception is not. To establish this part of my argument, I turn again to a couple of common concerns among polycentrists.
The Information Problem
If the development of just law requires wisdom, and wisdom requires taking all relevant facts and circumstances into account, what facts and circumstances are relevant for a legal system? A staggering number. Modern societies are complex almost beyond imagination, involving interaction among hundreds of millions of individuals in hundreds of thousands of associations undertaking a bewildering array of activities. The wisdom required to make just law for such societies must account for a vast amount of information. As many of its proponents have appreciated, polycentrism is able to account for this predicament in ways that monocentrism is not.
The difficulty for monocentrism is that the information required for the smooth operation of complex modern societies is scattered among a host of individuals and associations, such that each agent knows only a miniscule fraction of the whole.Footnote 98 Furthermore, the content of this aggregated knowledge and the relation of its pieces to one another is constantly in flux. This means that while legislative activity can influence the shape of a complex modern society, legislators seeking to control it or even to achieve some particular change are bound to be disappointed. Legislators and other state officials have such a small degree of the pertinent information at hand that, even if they carry out their mandates meticulously, the complexity of society makes it impossible to predict all the results of legislation with any kind of precision.Footnote 99 Legislative attempts to attain someone's social vision are at best an educated guess and often a shot in the dark. Totalitarian regimes are clearly capable of wreaking much harm through their legislation, but they inevitably confront much that is out of their control.Footnote 100 Even Western liberal democratic governments, with more modest goals, constantly find that unknown circumstances and unforeseen events stymie their seemingly reasonable aspirations.Footnote 101
The development of the customary order does not face this same information problem. The customary order—constituted by the patterns of conduct resident in the overlapping real-life relationships among millions of individuals and associations—is the product of the spontaneous coordination of the tiny bits of relevant knowledge possessed by all the participants of complex modern societies.Footnote 102 Thus, while legislation is promulgated by those ignorant of most of the relevant information, the customary order emerges precisely through the spontaneous process that integrates dispersed information into a harmonious social system.
This does not mean that legislation and other state sources have no place at all, although it should instill civil officials with a sense of often-missing modesty.Footnote 103 It does suggest that discovering the law partially in the customary order, as shaped by a multiplicity of sources, enables a legal system to harness the information necessary to do justice. Thus a polycentric legal system, in this sense at least, reflects the way of wisdom.
Change in the Law
Inherent in the preceding discussion, but worth brief comment in its own right, is that law is not established once and for all, but constantly changes. On the one hand, law must change if it is to be, as Aquinas echoed Isidore, “suitable to place and time.”Footnote 104 On the other hand, legal change has potentially undesirable consequences. People need to plan for the future. Developing skills, investing resources, and many other activities necessary for individual and social flourishing require predicting, with some degree of confidence, what coming months and years will bring. But the future, and thus predictions about it, are always uncertain. One helpful service law can provide is a degree of stability as people anticipate an uncertain future. Although much remains unpredictable, it is advantageous to know that one will be playing by the same basic set of rules—just as an athlete, unable to plan for the exact circumstances in the fourth quarter of tomorrow's game, can still train intelligently knowing that the rules of the game will be the same as today. The prospect of legal change exacerbates uncertainty and detracts from ordinary people's ability to plan intelligently for the future.Footnote 105 Here I suggest that polycentrism, by promoting acquisition of knowledge in ways that reflect the biblical-theological considerations above, enables law to change in ways that mitigate some of these concerns.
According to Proverbs, useful knowledge is acquired through a generation-spanning process that inherits a treasury of wisdom from the past and incorporates new insights into it. For law to reflect this process, it must retain the hard-earned gains of the past while refining them for the future. This indicates that beneficial legal change will generally be gradual and incremental. If law changes in this way, it should mitigate problems that arise when the future of law seems uncertain and people cannot plan for days to come or rely on legitimate expectations.
It seems fair to say, however, that changing the law through legislation or other state sources tends not to be gradual and incremental, but abrupt and drastic. For one thing, legislation is a punctiliar act and thus is by nature abrupt. The law at one moment prescribes one thing, and then, at the moment of legislative enactment, the law becomes something else. Legislation is also at least potentially drastic. Legislators can attempt to tweak the law through small modifications, but faced with responsibilities to supervise the whole complex body of law and the pressures of competing factions and special interests, bold proposals are most likely to garner attention and seem worth the time. In these respects, at least, legislation has serious drawbacks as a mechanism for changing the law.Footnote 106
The customary order, in contrast, tends to change gradually, incrementally, and “fluidly.”Footnote 107 The inertia of known and expected patterns of behavior creates barriers to changes in custom other than those that occur by small steps over periods of time, perhaps even imperceptibly to most people as they happen. Yet it is inevitable that such gradual and incremental change will occur, for patterns of expected conduct necessarily shift as people are born and die, associations rise and fall, and industry and technology develop. Customary development of law is a “living process,” and the “plasticity” of customary systems can be a source of “microadjustments.”Footnote 108 The customary order changes in ways analogous to change in language, markets, and science.Footnote 109 Thus, spontaneous legal change through the customary order has advantages in two directions over legal change through state sources. In the latter, laws either do not change at all or they change abruptly and perhaps drastically, while through the customary order law inevitably changes, but tends to do so gradually and incrementally.Footnote 110
Changing the law through state sources may well be desirable in various circumstances. But if the customary order indeed changes in gradual and incremental ways, and thereby reflects the proper manner of acquiring wisdom, then we have further reason to appreciate a polycentric conception in which law derives from non-state sources as well.
Polycentrism and the Role of the State
The final biblical-theological theme considered above concerned the state. I observed that the Noahic covenant commissioned the human race to pursue justice but did not itself establish civil government. Instead, civil governments have emerged in the course of history as human beings have formed a variety of institutions and authority structures in carrying out the Noahic commission. Thus, I argued that the state remains linked to and dependent upon this larger process, and that the state has no authority to define justice autonomously, but only to enforce a justice whose reality transcends the state and serves the good of the people. Understanding the state along these biblical-theological lines, I argue, reveals additional virtues of polycentrism.
It may be helpful to consider this issue in slightly different terms. To say that the state ought not to define justice autonomously, but enforce a justice whose reality transcends it, is similar to saying that we seek the rule of law, not “the rule of man.” Of course, this maxim cannot mean that law exists apart from human action, for law is always a human product. What the maxim envisions is that no individual or group of people are sovereign, but that everyone is accountable to a legal authority independent of his or her own will. Along similar lines, state officials are to be ministers of the law rather than lords of the law.
From this perspective, a monocentric view of law has clear limitations. By making state officials the sole source of law, monocentrism permits a relatively small number of people to define what the law is—which looks rather like the “rule of man.” Western societies have tried to mitigate this difficulty through several devices, such as holding legislatures accountable through regular democratic elections, the separation of legislative, judicial, and executive powers, and written constitutions. These initiatives have yielded some obvious benefits, at least in comparison with autocratic alternatives, but they primarily just shift around law-defining power among state officials, rather than make the law more fundamental than the state.Footnote 111
Recognizing non-state sources as law, particularly as embodied in the customary order, seems to address this problem more satisfactorily.Footnote 112 The customary order, while still inevitably a human product, is not ultimately the product of human will.Footnote 113 Generally speaking, the customary order did not emerge through one person or group imposing its will upon the rest of society. While legislation creates law by an act of will under threat of force, the customary order creates law spontaneously, through the reciprocal and collaborative interaction of innumerable individuals and associations over the broad range of human endeavor.Footnote 114 Some people have more influence than others upon development of the customary order, to be sure, but no individual or association has the power to control it. The habits, sentiments, language, technologies, and innovative ideas that shape the customary order do so because they have won assent (perhaps imperceptibly) among the people broadly, not because an individual or a particular group of people has decreed it. Polycentrists often emphasize that while legislation makes law by imposing the will of one upon the many, that is, by coercion, the customary order makes law by consent.Footnote 115 It must be admitted that this contrast between legislative coercion and customary consent needs considerable nuance, since customs can be disadvantageous or even downright unjust for minority groups, who may adhere to customary practices less out of consent than out of fear.Footnote 116 Yet there is a real distinction between law decreed through legislation and law emerging through customary development. The former requires only some kind of majority vote, often succeeding as one slightly larger faction gains adversarial victory over another slightly smaller faction, while the latter requires people of different background and opinion to discover common ways of doing things through reciprocal collaboration.Footnote 117
Societies presumably must make some collective decisions by majority legislative vote. But if we aspire to the ideal of the rule of law, it seems wise to allow the law broad range to develop through evolution of the customary order. And this provides additional reason to appreciate polycentrism.
CASES OF CONFLICT
Some writers have critiqued anarchic-leaning polycentrists by identifying social goods that non-state legal sources allegedly cannot provide.Footnote 118 Since I am not questioning the need for civil government, I need not address such critiques.Footnote 119 More challenging questions about polycentrism arise from the potential conflicts it creates between state and non-state sources of law. It is one thing to look to the customary order to regulate areas not addressed by state sources or to provide social context for interpreting these sources. But what should be regarded as law when aspects of the customary order contradict pieces of legislation or court decisions, as in the ranching communities chronicled by Ellickson and described in my introduction?
There is surely no easy formulaic solution. Customs and state sources alike can wreak evil, and in some circumstances there may be compelling reasons to prefer the former and in other circumstances the latter. Declaring that one must always trump the other will not guarantee justice. Proponents of polycentrism, therefore, do need to provide some nuanced criteria for making these judgments in particular cases. It is beyond the scope of this article to develop such criteria in detail, but I offer two general considerations that arise from the theological perspective advanced above.
First, one occasion in which state sources seem to deserve preference to the customary order is when elements of a community have not genuinely participated in the processes that produced the pertinent custom but have submitted to it because of coercion or intimidation by those more powerful.Footnote 120 In previous sections I have emphasized that bearing God's image is a universal human gift and thus that each person should have a share in its divine commission; I also argued that law best develops in accord with wisdom when the many, rather than a few, participate in its formation and change. Thus, many of the most important reasons for appreciating polycentrism are lost when aspects of the customary order depend upon excluding certain people—such as those identified with a particular racial group, to use an obvious example—from full participation in the community's life. If legislation or other state sources aim to overturn such aspects of the customary order, there is good reason to acknowledge the former as law rather than the latter.
Second, when developing criteria for evaluating competing state and non-state sources of law, those sympathetic to the arguments above may wish to distinguish, on the one hand, circumstances in which the customary order has come to contradict older state sources from, on the other hand, circumstances in which newer state sources have been enacted to overturn aspects of the customary order deemed harmful or undesirable. In the latter case, it probably makes most sense to regard the state source as law (other things being equal). A new piece of legislation (or the like) may not in fact improve upon the custom it aims to overturn, but if a community establishes legislative processes, it presumably does so to identify deficiencies in present states of affairs and to seek remedies. Thus, these processes generally deserve deference when they seek to carry out this purpose.
In the former case, however, my previous arguments provide reasons to regard the customary order as law (other things being equal). Among other rationales for acknowledging that the law derives in part from non-state sources incorporated into the customary order, I argued that these non-state sources are able to account for a broad range of relevant information necessary for developing law wisely and that they ensure that ordinary people know what the law is and can plan for the future accordingly. These considerations seem to have special bearing when older state sources fall out of use. As societies change, new circumstances may render older laws problematic, and people's expectations of their neighbors and investments may take new shape. In these circumstances too, of course, evolution of the customary order is not necessarily for the better. But in comparison to outdated state sources, the customary order is immensely better positioned to access dispersed information and to account for common expectations.Footnote 121
CONCLUSION
Amidst various works evaluating legal polycentrism in recent decades, no writer has approached the issue from a Christian theological basis. Filling this gap, I have argued, from important biblical-theological considerations, that polycentrism is a more satisfactory view of law than a monocentrist conception. Although my case leaves open for debate many questions about how a polycentric legal system should work in practice, including how to resolve competing claims among state and non-state sources of law, I contend that it adds substantive weight to the more familiar arguments for polycentrism and should make polycentrism (even) more attractive to Christians—and perhaps to other morally thoughtful people as well.
ACKNOWLEDGMENTS
My thanks to Tom Bell for his thoughtful comments and suggestions on an earlier draft of this article.
