Note: I will eventually split this post up and expand each section into its own post, and turn this into a series. And eventually, this will probably be a book. But for now, I just wanted to get it up so I can share. I’ve spent far too long waiting until I have these ideas in their perfect form.
This article, as written, is likely to be most persuasive to those with libertarian sensibilities, or at the very least a small-government conservative mindset. Readers who do not already share concerns about expansive government authority may be less persuaded by the arguments here. Those who are already on the anarchist / libertarian spectrum will find this article fascinating (I hope), but only insofar as they are open minded and not wholly dogmatic about their views. Ultimately, I will contradict a number of core dogmas the define some stripes of these movements, but I believe that the arguments below make a case for a version of a stateless society that also provides a robust system of governance grounded in tradition. So we’re all on the same team here, I think.
To get to the bottom of this, I want to jump right into Book the of Mormon’s reign of the judges. To understand the events in late Mosiah and beyond, we must understand the nature of Mosiah’s change to the legal system. Many of us assume that this was a shift from a monarchy to some form of a democracy. I’ve heard others describe it as a transition to a constitutional republic. But both these assumptions are imposing modern ideals and worldviews onto a fundamentally different system. Mosiah was not creating some egalitarian society, or even handing over power to the people to determine their laws. His central purpose was to preserve the body of law that he, his father, and his grandfather had worked so hard to establish among the people.
So first, we must recognize that this was a transition to a kritarchy, a term that refers to governance by judges. A kritarchy is not a democracy. While local judges may indeed be chosen by local communities, and chief judges by the community as a whole, law and policy were not (generally) directed by popular vote or even popular opinion. This is because, unlike kings who were both legislators and adjudicators, the judges in a kritarchy are merely adjudicators. They are tasked with arbitrating disputes according to the law of the land; they do not arbitrarily make policy and law, except in cases of genuine ambiguity where existing legal norms are not sufficient to resolve the case at hand.
Legislative vs. Adjudicative Law
There is a “lost” distinction between legislative law and adjudicative law that is helpful here. (It’s “lost” only in the sense that the average person is largely unaware of it.) In legislative law, a central authority determines a broad and general rule, and then sends enforcers to proactively enact that rule and punish violators. In adjudicative law, disputes are brought before a mediator, who mediates the dispute in a way that best balances the interests of the disputing parties, according to broad principles discerned from historical jurisprudence. An actual example may be helpful.
In a rural Utah community, two neighbors had a dispute: one neighbor’s chickens kept the other neighbor up at night with their loud noise. In a legislative system, the complaining neighbor would lobby a central authority, like the city council, to enact ordinances that would either forbid chickens, or restrict them in ways that keep them from being a nuisance to others. The city council would then send out code enforcers to enforce these new rules. A weakness of a legislative system is that neighborly disputes spill over and become everybody’s business. All chicken owners are affected by the new rule, even if their neighbors had no qualms with their chickens — the rule is enforced on everyone. Central authorities are tasked with solving not just the dispute at hand, but all future disputes as well. And so (in this example) they strive to craft rules that broadly serve the community in all matters chicken-related.
In an adjudicative system, the two disputants would go before a mediator / arbitrator / judge, each would present their case, and the judge would make a determination that best resolved the dispute before him. A number of solutions could be implemented: the complaining neighbor just learns to deal with the noise, the chicken owner gets rid of the chickens, the chicken coop gets soundproofed or moved to a different part of the property. The adjudicator consults with historical jurisprudence to see how prior, similar disputes have been resolved, and which of many possible solutions have has been successful in the past.
From this historical jurisprudence arises broad principles he can follow. These principles are generally treated as authoritative. While no single case consists of irrevocable precedence, the weight of case law as a whole, in the aggregate, exerts strong pressures on the decisions of the adjudicator. But these pressures are not determining — this case law is ultimately balanced against the facts of the particular case at hand. Judges are free to find a solution that works best for the disputing parties. They may spend a great deal of analysis discerning how the facts of the present case are both similar to and different from what has come before, and also assessing what would best address the pressing needs of the disputants before them.
An advantage of this system is that neighborly disputes remain between neighbors. Nobody else in the community is affected by the decision unless they are embroiled in a substantially similar dispute — and even then, only to the extent that the prior dispute has filtered into the body of case law against which the judge evaluates the new dispute. A disadvantage of this approach (depending on your point of view) is that the weight of case law — the arc of historical jurisprudence — is not something you can wrest according to your will and pleasure. You can’t by fiat or force of will change the law of the land. To put it simply: under kritarchy, judges are not legislators.
Special Interests and Changing Law
Some have argued that kritarchic legal systems result in legal norms that are more robust against the pressures of special interest groups and lobbyists. If laws are crafted by the fiat of central authorities, who are empower to make, remake, and unmake law at their will (no matter how many checks and balances you attack to that power), you run the risks of special interests who lobby for the central authority to remake laws in ways that favor them. We see this happen every day, in fact, from media companies who lobby congress to make laws that harshly penalize those who duplicate music and movies, or hotel chains that appeal to congress to enact laws that burden crowd-sharing hospitality apps like AirBnB. (These are two of the tamer examples; the reality can get far more insidious.)
However, if legal norms are found in the aggregate of hundreds, if not thousands, of rulings across decades (or centuries) of jurisprudence, then no single group or individual can strongarm those legal norms to their advantage. They can bribe or entreat judges in the particular cases they are involved in, but cannot (by themselves) effect a change in the law of the land. What a judge can do is deviate from historical jurisprudence in the cases before him, but whether those rulings contribute to a change in broader legal norms depends on the cooperation of neighboring judges and future judges. This places the realm of law essentially out of reach of special interest groups.
And it may be that this is precisely the value that King Mosiah saw in this system. After all, the threat he was addressing was a group of people who sought to relax or change elements of their current legal system, and to reassert foreign legal traditions onto the community. They were trying to unmake Mosiah’s laws. A king could do precisely that, which is why Aaron could have undone everything Mosiah had worked for. But judges could not.
What a judge can do is deviate from historical jurisprudence in the cases before him — if he can justify it using the unique facts of the case. But whether those rulings contribute to a change in broader legal norms depends on the cooperation of neighboring judges and future judges. But under Mosiah’s system, judges could be deposed by a panel of other judges for consistently ruling in ways that are expressly contrary tocase law (or under suspicion of bribery or conspiracy to change the law). (These cases, of course, are themselves adjudicated in similar ways, balancing the facts of the case against historical jurisprudence.) The result is that if you resolve disputes in ways that are patently unjust or deviate too far from established historical jurisprudence, you run the risk of being deposed.
And so in this way, King Mosiah could establish the just laws enacted by his father (King Benjamin) as the prevailing law of the land, and set up a system of judges to adjudicate disputes according to that law. As the Nephites would later discover, the only effective way to enact a sudden change to case law under such a system would be for judges to widely conspire in secret to rule contrary to established case law, and to hold each other guiltless for doing so. In other words: secret combinations. Absent that, the Israelite laws and traditions could be roughly preserved across time in a way that Mosiah could not guarantee under a monarchy (or any other legislative system).
A Rule of Law that is the Product of Human Action, but not of Human Design
In the future, I intend to argue that such a kritarchic system like this is actually a libertarian ideal. Even though the resulting case law may not always resemble libertarian policy preferences, one could describe this as decentralized process of establishing legal norms that are — as Hayek may have described it — the product of human action but not of human design. While establishing such a system would require a starting point (e.g., Mosiah’s laws), beyond that starting point, no central authority designs the laws or makes changes by fiat. The resulting jurisprudence aggregates hundreds if not thousands of cases, and so the end result is not something that can be planned or foreseen.
Comparing to a marketplace may be helpful: the businesses we root for in the marketplace might not always be the ones that win the day; the products we love the most might not always be the ones that get made. Think of movies and Hollywood: sometimes what people buy and what Hollywood sells is schlock. But it would be a huge mistake to create a central authority comprised of artists who can decide what movies get made, to ensure that Hollywood productions are all artistic masterpieces. Libertarians understand and fervently reject this sort of central planning in the marketplace. We trust the invisible hand to guide the marketplace.
Similarly, legislative lawmaking can be thought of as a form of central planning in the realm of legal norms — telling judges how they must rule. The innovation in a kritarchic, common law jurisprudence is that it disbands this sort of central planning altogether, and allows legal norms to evolve from their starting place in a decentralized, unguided way. And this means that, like a marketplace, the result can be a “mess”, and have inefficiencies and oddities that people might wish they could smooth over. Injustices may occur, just as they do in the marketplace that gives us movies like M. Night Shyamalan’s live action version of Avatar: The Last Airbender.
In other words, judges can rule wrongly in any number of cases, and legal norms can evolve in somewhat misshapen ways. But at the same time, we approach something resembling the rule of law (as opposed to the rule of man): We have stable, broad legal norms that are insulated from the pressures of political interest groups. The system (as a whole) is free of fiat-law, where any person or group of people can arbitrarily enact their will upon the populace, and proactively enforce that will through enforcers.
Re-understanding the Role of Government
An interesting consequence of such a system is that what gets aggregated into the broad arc of historical jurisprudence are cases that work. Solutions that don’t resolve disputes, where disputants repeatedly raise the same and similar disputes before the judge, tend to be disfavored. Solutions that quiet the disputants tend to be favored. The goal of adjudication is to solve the conflict, if not in a way that resembles perfect justice or fairness, at least in a way that makes the system a preferable mechanism for recourse than interpersonal violence.
And that’s the bottom line: there will always be conflicts between human beings, and interpersonal violence can be a swift way to resolve those disputes. But that violence comes at a cost, including blood feuds and collateral damage. The purpose of government, in this worldview, is to provide a mechanism of recourse that is preferable to interpersonal violence. It’s a way of solving conflicts, in a system that people generally consider both available and reliable. Note: it doesn’t have to solve conflicts perfectly to serve that purpose. Only well enough that maintaining the system is preferred to dismantling it.
In other words, if you were to ask, “What is the purpose of government?”, you may get very different responses:
Big government: “To ensure a just and fair society while respecting human dignity.” The government has done its job when injustices, whether committed by government or private actors, have been mitigated.
Small government: “To protect and defend the life, liberty, and property of individuals.” The government has done its job when life, liberty, and property — as defined by classical liberal thought — are protected.
Kritarchic: “To provide a mechanism of recourse by which individuals can resolve disputes without interpersonal violence.” The government has done its job when individuals have a reliable mechanism for recourse and mediation when they have disputes with others.
John Hasnas and Empirical Natural Rights
The legal scholar John Hasnas makes a case that common law systems like this can produce legal norms that very much resemble classical natural rights — and he argues this as an empirical fact, not merely a theoretical one. (For my libertarian and anarchist friends, here’s proof of Hasnas’s bona fides.) Hasnas argues that much of our current jurisprudence in the United States started from a common law system ported from England, which — if you go far enough back — arose in precisely this manner.
At the risk of being an imprecise historian, I’m going to use very broad brush strokes here: Basically, in old England, the “king” would concern himself with wars and other matters, and wasn’t necessarily the “lawmaker.” Rather, local communities would resolve disputes in an adjudicative system, and were largely left to themselves to resolve these conflicts as they saw best. This developed into to local jurisprudences that Hasnas refers to as “customary law”, which varied from community to community. These local jurisprudences were eventually documented, and commonalities were later adopted in the royal courts. This was, roughly speaking, the origins of English common law, as it represented those legal norms that were common throughout the land.
These legal norms were never (originally) enacted by fiat, never legislated by lawmakers. (Even if later lawmakers documented and enshrined them in statute, that was not their origin.) And among these legal norms we find many, if not most, of the laws that are entirely uncontested even today — norms related to trespass, tort, assault, theft, fraud, murder, contract law, among other things. Very few people in modern society dispute those legal norms. We generally don’t have national debates over the distinction between assault vs. battery, the prosecution of fraud, or the law against trespass. In contrast, the laws we do bicker about the most are precisely those that are dreamt up and enacted by fiat, by legislators and centralized regulators/lawmakers.
In short, this common law process of aggregating disputes across decades / centuries of jurisprudence works almost like a consensus builder — on the one hand, it favors solutions to disputes that tend (across time) to work. And for solutions to “work,” they must approximately resemble what people consider to be fair or just — or at least not so unjust that it’s more preferable to relitigate the dispute (and similar ones) ad nauseam than it is to leave the ruling be and go home. In this way, legal norms evolve in ways that roughly track the moral sentiments of the people (though it may take some years / decades for jurisprudence to keep pace with dramatic and swift cultural changes).
And as those tried and true solutions become customary, they start to become anticipated, or expected. We start to plan our activities around those expectations, to base our businesses and livelihoods on the fact that we anticipate certain disputes will be resolved in the customary way. And as we do this, we start to feel wronged when judges stray too far from those customary solutions, when our expectations are betrayed. And so it is that we start to treat those legal norms as rights, as legal entitlements. Just as our moral worldviews shape and inform the jurisprudence, and our jurisprudence begins to shape and inform our moral worldviews, and what we feel entitled to in court, in a slow process of mutual evolution.
In this way, the process generates what Hasnas calls empirical natural rights. By “natural,” Hasnas doesn’t mean the same thing philosophers mean. These rights are neither granted by fiat from the state, nor conceived of by philosophers arguing from first principles. These rights are, instead, discovered through a messy legal process of trial and error, in which successful solutions to conflicts make good case law, and good case law eventually defines the consensus of the system and the expectations of the people. Natural rights are, as Hasnas argues, solved problems. They are known, effective solutions to the most common disputes.
Judges will always face genuine ambiguities and novel disputes, such as whether airplanes trespass on the property those below, or whether the invention of the recording VCR violates the rights of broadcast companies, or whether body scanning technology is an invasion of privacy. The solution in a kritarchic, common law system is to patiently wait for a consensus to emerge across many cases with differing facts and differing adjudicators, all of whom weigh the their specific cases against historical jurisprudence, and reason through similarities and differences between the novel dispute and what has come before.
This can take time, decades even — and so in the face of cultural and technological innovation, there may always be periods of uncertainty where the law is “not yet settled.” But once the law does settle, the legal rights of property owners against airplanes (or pilots against property owners) could be said to have been discovered. And while such a legal system will often favor the wealthy and connected (just by virtue of having more resourced advocates in court), the result will not necessarily be what favors special interest groups and lobbyists, as it almost invariably does in a legislative system.
And in a surprise twist, when libertarian philosophers think they can divine what those norms should look like in advance (by arguing from first principles or state-of-nature experiments), they can be thought of as acting as philosopher-kings of a sort. When we adopt that approach, we philosophize from first principles or thought experiments, and then propose and enact legal norms (based on that rational analysis) to solve the current dispute and all similar disputes. But that is the approach of a central planner, as we do not know the facts of future disputes, nor do we know that our proposed solution will put an enduring end to the current one. Those are empirical questions, not philosophical ones.
Some Practical Examples
Let’s look at some hypothetical examples. In a kritarchic society, a dispute arises between bereaved parents of a child who drowned in a pond, and an athletic swimmer who stood by and watched it happen. They feel wronged, aggrieved. The parents and the athlete appear before a judge, and the parents (or their advocates) assert that the athlete had a duty to save the child, and lapsed on that duty. In our current jurisprudence, the athlete would argue that he had no legal duty to rescue the child. But is this the only possible way this dispute could have resolved? In our hypothetical kritarchy, could not these same sorts of disputes have given rise to a duty for able-bodied individuals to attempt low-risk rescues?
A typical libertarian response would be, “NO! That is a positive right. We only believe in negative rights, the right to life, liberty, and property. Neither the child nor his parents have a position right to the aid of the athlete.” I’ve engaged in just this sort of philosophical reasoning more times than I can count. However, in a kritarchic, common law approach, the question at hand is not resolved by philosophical reasoning (though judges are certainly welcome to supplement their analysis of the case with a good dose of philosophy). The questions at hand might be: How have similar cases been mediated in the past? How is this case different from those? How often are these cases re-litigated?
I can imagine a community evolving norms where there is no recognized right to rescue. I can also imagine a community evolving norms where there is a right to rescue (under some circumstances, at least). And both systems could be “good” legal systems, different in their norms but both effectively resolving common disputes. Like Spanish and Portuguese, they might be similar in some respects, different in others, but effective for those who dwell in each community. There may be no single jurisprudence that provides enduring solutions to common problems and disputes.
And certainly, in a common law system, the historical jurisprudence would be full of nuance and complexity: cases turn on all sorts of details. A feeble old man might not be held to account for his failure to rescue. If the lake was deep and attempted rescue was certain suicide, the most athletic swimmer might not be held to account either. Because neither of those seem like they would resolve the disputes in an enduring way, and certainly wouldn’t stand the test of relitigation or similar cases moving forward. But I speak more than I really know: these are empirical questions, not rational ones.
I can picture a community of jurisprudence where “He stole my idea / play / music!” comes to be recognized as an actionable tort, and an alternative universe where it does not. Those communities might look very different from each other years down the road. In one, art is funded by patrons and considered a philanthropic endeavor. In another, art is commercialized and sold by distributors as a business model. Is either system inherently unjust, or are they merely different ways of quieting the same sorts of disputes? In short, the philosopher-kings would tell us they have the answers to what may actually be empirical questions; they would also tell us there is one answer when in fact there might be many.
The same sort of analysis goes for a host of questions. Do airplanes trespass on property below? Instead of deciding the issue through legislation (where airline lobbyists would win the day), litigate the cases, and see what falls out of the system! Perhaps property owners assert a right to their property to the sky, and perhaps they prevail! But perhaps such a solution is not be an enduring one, because the community values flight as a means of travel. But how high does an airplane need to be, to no longer be trespassing? Again, an empirical question. Litigate the cases and discover out what solutions stick across time.
Do conjugal sexual partners who bear children together have legal duties to each other? Most systems of jurisprudence say yes — both have claim on each other’s material resources for the sake of their children, even if they separate. But do same-sex partners have those same legal duties? Well, we can litigate and find out! Let Brian make a claim to alimony or child support from John, and see if a judge finds justification for that in the historical jurisprudence. I could see this going either way, depending on both the facts of the case and the historical jurisprudence. Which way provides an enduring solution to similar, future conflicts between same-sex partners? This is something to be discovered, not decided.
Marriage itself looks different from this view — the questions at hand are what claims, torts, and duties do courts typically recognize between disputing spouses, or by couples against third parties. Is adultery an actionable tort? Pornography? Alienation of affection by a third party? Neglect? And these will always be fact-specific; spouses with children, for example, are going to find a different set of actionable claims against each other than spouses without children, and so forth. Marriage in most common-law systems simply can’t be reduced to a contract, either actual or implied.
Reason, Language, and Rights
Which brings us to the next point, where I may lose some of my libertarian friends entirely. As we stack examples upon examples, we can start to see the hubris in thinking that reason can gives us all the answers ahead of time. Libertarians and classical liberals — from Ayn Rand to John Locke — pride themselves at being able to argue from first principles and thought experiments designed to show that their favored legal conclusions are the only possible just answers to given legal questions. A libertarian society is often seen as a society governed by reason, not passion (or force). The assumption here (broadly speaking) is that Justice is something that can be known through rational analysis.
Under the argument I advance here, we can certainly continue such rational projects if we wish. People living in a kritarchic community can be libertarian utopists if they want, and attempt to persuade people to think in libertarian ways. But the goal of the legal system is not abstract Justice or Liberty. The goal of the legal system, as stated before, is far more modest: to provide recourse in the event of disputes that would otherwise be resolved with interpersonal violence. The goal of any specific court encounter is far more practical as well: it is to peaceably resolve conflicts, not to establish some philosopher’s abstract vision of justice, fairness, or liberty.
My own opinion is that reason cannot do nearly as much as we give it to do. Reason is not a crystal ball that gets us to abstract, indisputable truths. What we treat as the indisputable priors or givens of rational argument tells us much more about ourselves and our intellectual community of preference than it does about truth. Rather, reason is more like a language. It’s a tool of persuasion, a way of communicating, a way of crafting and connecting narratives of thought and discourse. You can use reason to justify the best and worst of actions, in the same way that you can use English to tell someone you love them or hate them. And you can do both of those either adeptly or ineptly; just because you are saying the wrong things with language or reason doesn’t mean you aren’t a good linguist or rationalist.
The comparison to language is useful for another reason: language is also the product of human action, but not of human design. The vocabulary, rules, and grammar of English evolved across centuries and centuries of written and oral communications. It is the aggregate of billions of interactions between human beings, none of whom could have guessed the end result. Individuals can introduce innovations into the language, but whether those innovations filter into daily communication depends on the cooperation of millions of people. The English language can and does evolve over time, especially in the face of technological and cultural change — but not by any person or group’s directive or edict, not by any force of will or fiat. And this is precisely how “law” can be conceptualized in a kritarchic, common law society.
Another aspect of language is that it’s often arbitrary. The rules of grammar do not always make sense, and often contradict themselves. And yet, we converse fluently and vibrantly, following those grammar rules even when we cannot articulate them. Human beings are adept at internalizing norms, patterns, and expectations, even when they seem invisible to us. And once we do, when someone violates social norms or defies grammar rules, it sounds and feels off to us, even if we cannot always explain why. We start taking them for granted as the natural order of things; when asked to put reason to them, we can justify and rationalize them in post hoc ways.
And in my view, to an extent, this is how we can think of reason itself. What we take for granted as sound reasoning can sometimes be as arbitrary as social norms or the rules of conjugation. Where we think everyone else is making fallacious arguments, we may — when standing in a different intellectual tradition — find our own to be as just as fallacious and arbitrary. And what we think of as an unassailable argument often comes right down to a matter of definitions. Is a fetus a life? Is shouting a form of aggression? Is taxation theft? These terms don’t have inherent definitions; they have accepted definitions. And those definitions are handed down to us through centuries of language development, and are the product of human action, but not of human design.
If we look again at a robust system of common law, we will notice that it has the same messiness, the same sorts of oddities and idiosyncrasies that we see in language itself. In a strict Randian natural-rights perspective, a man owns and controls his property no matter how many years other villagers have used it for a road; but in common law, (fact-specific) easements are often granted if people have, for long enough, come to rely on the man’s property as a road. Ditto for squatters — in common law, a family who has openly (and without contradiction from you) claimed your property as theirs for years can earn legal rights to it, your deed notwithstanding. In a strict Randian natural-rights perspective, the only legal duties you have towards your sexual partners are those you have explicitly contracted into; but common law recognizes and enforces the legal duties of conjugal partners who have shared a domestic life for a few years (again, specific facts must be weighed).
I could drum up hundreds of examples where common law deviates from what philosophers would invent through bare reason. The common theme is that in the broad arc of historical jurisprudence, they were the best way to resolve common disputes that could otherwise lead to interpersonal violence. A community deprived of a much-used road by a long forgotten deed is not likely to now travel miles around the city simply to respect the property rights of a man who has thumbed his nose at the community and deprived them of their road. No matter how much we (as philosophers) think they should, they simply won’t. That solution to the problem will simply be re-litigated again and again, either in the courts or through interpersonal violence.
This should not be interpreted to mean that this decentralized process will give us the only solutions that could work; different communities could develop different legal norms that solve the same disputes. A Nephite community’s common-law jurisprudence, inspired in its beginnings by strong Mosaic foundations, could look very different from the common law we inherited from England, and yet very different still from a kritarchic, common law system inspired originally by Muslim texts in the Near East, and yet different still from a common law system that develops in, say, the mountain villages of China. And yet all could be effective at resolving the disputes most common to their communities.
And this brings us back to the main point of this section: if you pose the same state-of-nature thought experiments to each of these groups of people, they may give you very different answers to your questions. And it’s not because some groups are more rational than others. It’s because what we consider to be rational is as much based on our intuitions and our customs as anything else. John Locke arrived as his solutions to state-of-nature experiments not because they were the most rational, but because his intuitions about what is Right and Just were largely shaped and informed by the common law jurisprudence he grew up in. And so his state-of-nature conclusions happened to dovetail closely with the solutions expected of judges in English common law.
Greek and Hebrew Thought
By dismantling reason itself in this way, am I leading us straight into abject relativism? Is it all just arbitrary? Not at all. First, I am not arguing that no system of law is better than any other. In fact, I’m arguing that a kritarchic system of law may be better than many other systems, for a number of practical reasons: they are more impervious to special interests groups, less likely to be meddlesome, and perhaps more stable across time (though that is an empirical question), among others. I have things I value in my government, and I can evaluate this system (and any other) against those criteria. And further, some common law systems will almost certainly more closely resemble my own sense of justice and fairness than others.
A lot of this boils down to the differences between ancient Greek and Hebrew worldviews. For Greek philosophers, the quest for truth was more or less unrelated to the legends that were taught in the temples of the cities or at the hearthside in the home. It was not a quest to understand the intentions of divine persons. Rather, it was a quest to capture (via the intellect) certain rational principles or concepts. When Greek philosophers did believe in the traditional gods, they believed they operated within a broader universe that was governed by ideas. From the perspective of some, even the gods were bound by fate, and could not alter the dictates of impersonal, abstract law. In this way, truth was distinct from any god who could carry on a dialogue with mortals.
And furthermore, the ancient Greeks were fascinated with things that do not change. Greek philosophers often disagreed with each other, but they almost always saw things that do not change as more fundamental than things that do change. For this reason, they also saw things that are abstract as more important than things that are particular to a specific context, and things that are outside space and time as more valuable than things that are physical and temporal. Greek philosophers analyzed and categorized objects (specific people, places, or things) in terms of unchanging characteristics, rather their specific contexts or features.
Modern rationalism owes a tremendous debt to this Greek heritage. It is from this heritage that we learn to prize universals that we can grasp with reason, and translate those into law. The philosopher Immanuel Kant’s concept of the categorical imperative is an example of this sort of thinking. Kant reasoned that the most fundamental moral dictate (i.e., the “categorical imperative”) was to “act only according to that maxim whereby you can, at the same time, will that it should become a universal law.” From this view, the more refined our philosophical intuition, the more we can discern which rules are more universal or fundamental than others (and, conversely, which are less important by virtue of being contextual).
In contrast, the ancient Hebrews did not engage in the same sort of formal scholarly dialogue the Ancient Greeks did. Rather, the ancient Hebrews explored the same questions through the concrete matters of everyday living. Further, unlike the Greeks, the Hebrews did not place as much emphasis on non-change. The Hebrew language focuses heavily on the concrete and tangible. For this reason, the Hebrews seldom (if ever) focused on abstract or universal ideas the way that ancient Greek thinkers often did. Wilson explains, “For [the Hebrews], truth was not so much an idea to be contemplated as an experience to be lived, a deed to be done. … Thus their language has few abstract forms.”
For the Hebrews, a God who does not judge and intervene in the world is a God who does not meaningfully exist. Even the name Yahweh (Jehovah), which can be interpreted to mean, “I will be there (for you),” implies both activity and relationship. God’s identity and being is defined by His activity towards us. The Hebrew perspective does not elevate abstract or impersonal ideas to the realm of the Divine because abstract ideas, by their very nature, cannot act in the world. Thus, in a Hebrew worldview, abstract ideas are always one step removed from God and His relationship with us in the world.
Because ancient Greek philosophers focused on the abstract, they strove for rational and intellectual perfection, logical certainty, and the systematic representation of impersonal truth. In contrast, the Hebrew thinker strove for a concrete relationship with God and specific moral guidance in specific moral contexts. Most importantly, the Hebrews did not determine right conduct by looking for abstract, universal moral laws, but by consulting the commitments they had made to God and what He has commanded of them. Their moral intuitions were shaped by history, tradition, covenant, and ongoing, contextual guidance from God. In other words, I am not a rationalist. But I am also certainly not a relativist either.
And it’s also, perhaps, no coincidence that for centuries, the ancient Hebrews instituted a system of law very much like what we are describing here: a common law kritarchy, where judges adjudicated disputes in ways that were informed by historical jurisprudence and what they believed to be divinely inspired texts (the books of Moses). And rather than reasoning out universal laws and principles, the decisions of judges were fact-specific, turning on the contexts, circumstances, and individuals before them. Instead of following the clean grooves of Greek-inspired rationalism, Hebrew jurisprudence was refreshingly messy and filled with contradictions and idiosyncracies.
And because they were not Greeks, they felt no need to reduce all that messiness to universals, or derive them from first principles. We can see here a similar distinction between legislative and adjudicative government. Legislators want to make a single rule that binds everyone; they want, essentially, to tell all judges how they must rule in various disputes before ever knowing the facts of the dispute. Adjudicators, in contrast, are content to wait until a dispute arises and then judge it on its facts; when they consult historical jurisprudence, it is not with the aim of figuring out universal rules to apply to their own situation, but rather to learn the skill of good judgment from the lived experiences of those who have gone before.
Executive Authority and Stateless Society
This view virtually eliminates legislative authority, but what about executive authority? The truth is, there is no single way to set up a common-law kritarchy, and there’s a wide variety of possibilities on how rulings are (or are not) enforced, and how wartime exigencies are handled, how judges are paid, or how the executive affairs of a nation and community are dealt with. It seems that the chief judge in Mosiah’s system had some executive powers; he could appoint someone to lead the armies, for instance, during wartime.
But my personal opinion is that executives in this system should be subject to the same system of recourse. If they enforce a judge’s ruling in an inexact or unjust way, they could be subject to being brought before a judge just as anyone else, to answer for their conduct and provide restitution where possible, in cases that are judged through common-law jurisprudence just like every other. The chief executive can command armies and provide wartime leadership of the people, but are answerable in the same ways for their unjust dealings and misconduct, should someone make claims against them and prevail in court. The executive is not the boss of the people, nor the boss of the judges.
In Mosiah’s system, it seems that judges were paid for their work as judges; and it may be that they were paid out of tax monies, or they could be paid by disputants (in which case they are being “hired” by disputants to resolve disputes). It could also be a blend, where when an advocate for a non-present victim (say, a murdered orphan) is unable to pay, the state coffers foot the bill. But there’s flexibility on this matter, and it’s possible for a common law kritarchy to adopt many different approaches on how to fund war and pay judges.
In other words, we are not necessarily talking about The State here — one could argue that a kritarchy in any of these forms resembles a stateless society, precisely because there is no individual or group who is empowered to enact their will on the populace. One could argue that states involve the rule of an individual (or group of individuals) over a geographic jurisdiction. However, in a kritarchy, there is no fiat-law, nor anyone empowered to make or remake law according to their preferences. While rulings of judges could be enforced, the aggression involved in this enforcement is limited to the dispute at hand.
In short, the question of non-aggression (and whether the kritarchic regime has a monopoly on violence) is basically irrelevant; one could imagine kritarchic systems working in a variety of different ways. In Mosiah’s system, the kritarchic regime almost certainly had a monopoly on violence and enforced its rulings with violence. But my considered opinion is that is was still a “stateless society” in at least one important respect: there there are no rulers of the jurisdiction, only mediators. There was still certainly government, of course, but no regime of fiat-law. And the existence of fiat-law is how I’ve come to understand a “state.” (There are other definitions of states and stateless societies, to be sure.)
In the end, a kritarchic, common law system offers something to everyone. For libertarians, it offers a system of law that doesn’t acknowledge victimless crimes (every case needs disputants, after all) and in which nobody can rule by fiat — even if un-libertarian legal norms are tolerated. For conservatives, it offers a stable system of law that relies heavily on tradition and the wisdom of all those who came before. For liberals, it offers a system of law that can eventually accommodate progressive norms, if they take hold in society long enough — even if it takes time, even decades, for legal norms to catch up with cultural change.
Reunderstanding Mosiah’s Proclamation
With all of this background, we can finally understand how radical the proposals were that Mosiah made. We can go back and reread Mosiah 29, and suddenly everything reads different. We read:
Therefore I will be your king the remainder of my days; nevertheless, let us appoint judges, to judge this people according to our law; and we will newly arrange the affairs of this people, for we will appoint wise men to be judges, that will judge this people according to the commandments of God.
Mosiah describes the purpose of judges here: to adjudicate disputes according to the law as given. Nowhere does he describe them as lawmakers. Mosiah continues:
Therefore, if it were possible that you could have just men to be your kings, who would establish the laws of God, and judge this people according to his commandments … I say unto you, if this could always be the case then it would be expedient that ye should always have kings to rule over you.
Kings establish laws and adjudicate according to those laws. We see here the distinction: judges judges, kings establish and judge. It’s subtle, but meaningful. Further, he says that if you could always have just men who will establish fiat-laws that are divinely inspired, good, and prudent, this would be good. But since we cannot guarantee this, it is not prudent to continue with such a system. Because a wicked king can bring destruction upon the people, by establishing fiat-laws that will undo the work of good kings that came before. Mosiah continues:
And behold, now I say unto you, ye cannot dethrone an iniquitous king save it be through much contention, and the shedding of much blood. For behold, he has his friends in iniquity, and he keepeth his guards about him; and he teareth up the laws of those who have reigned in righteousness before him; and he trampleth under his feet the commandments of God; And he enacteth laws, and sendeth them forth among his people, yea, laws after the manner of his own wickedness; and whosoever doth not obey his laws he causeth to be destroyed… and thus an unrighteous king doth pervert the ways of all righteousness.
Here, we see the same key distinctions between legislative law and adjudicative law we discussed earlier. In legislative law, the legal central planner enacts policies and laws based on his own preferences (which is fine if he is just and wise, but disastrous if he is not), and then sends out enforcers to proactively enforce those edicts. The very idea of making fiat-law and sending out enforcers to enact it and punish violators may be precisely what King Mosiah is warning against here.
Note that Mosiah’s analysis does not change in the slightest if it’s a committee of five people or a hundred people enacting the fiat-law instead of merely one man. Everything Mosiah says here of kings is true of legislatures. The issue with kings is not that it’s one man ruling (instead of many). It is that kings establish laws, unmake laws, and send out enforcers to proactively enforce their edicts. Mosiah proposes:
Therefore, choose you by the voice of this people, judges, that ye may be judged according to the laws which have been given you by our fathers, which are correct, and which were given them by the hand of the Lord.
The laws the judges would judge by here are not laws they have made and enacted, but laws handed down to them by their fathers. They weren’t set up as a some covert legislature. They were to judge according to an existing body of law (and, I imagine, depart from it only in novel or ambiguous cases where legal innovation was required, because of course). He was setting up a kritarchic common law system, with Mosaic legal norms as a sort of constitutional starting point. He continues:
And now if ye have judges, and they do not judge you according to the law which has been given, ye can cause that they may be judged of a higher judge. If your higher judges do not judge righteous judgments, ye shall cause that a small number of your lower judges should be gathered together, and they shall judge your higher judges, according to the voice of the people.
Again, he reiterates the point: the judges were to judge according to the laws that have been given. They weren’t tasked with making new law. And judges that vary too far from the established precedence could be deposed by a panel of other judges. When we read about the result of Mosiah’s proclamation, the same principle is highlighted again:
Therefore, it came to pass that they assembled themselves together in bodies throughout the land, to cast in their voices concerning who should be their judges, to judge them according to the law which had been given them; and they were exceedingly rejoiced because of the liberty which had been granted unto them.
Once again, the judges were to judge according to the law that had been given them (again, this wasn’t a legislative body they were electing). And furthermore, the people saw this as a system of liberty. They were given a system that provided them a fair system of recourse in the event of dispute and conflict, and body of legal norms that were understood to be just. And that, for them, was liberty. They didn’t need democratic law-making to be free. They only needed judges to resolve disputes, and a just system of legal norms.
Again, what made them free was not that the legal norms resembled libertarian ideals (as we know them today). Those legal norms almost certainly did not. Rather, what made them free was they would be free from the whims of kings and despots. They would be free from fiat-law. And over the next few decades, as people would once again attempt to reassert kingship, or fiat-law, they saw this as imperiling their freedom.
Later Challenges to Kritarchy
The part that leads most people to think that this new system as a democracy is when Mosiah urges the people to “do your business by the voice of the people.” It would be a mistake to conclude from this a general authority to enact fiat-law by vote. For the most part, this seems to me to be coextensive with choosing their judges — deciding by the voice of the people who would judge them according to the laws given them. Once elected, judges seemed to have lifetime tenure, though — they were only deposed, if at all, by other judges. Whenever the people themselves had a referendum to depose a disfavored judge, it was never to replace them with a new judge. It was always to replace them with a king.
That is because Mosiah did give them a mechanism for reverting back to kingship: a referendum whereby the voice of the people could decide to overturn the kritarchic regime and appoint a king instead. On this matter, when Mosiah said, “is not common that the voice of the people desireth anything contrary to that which is right,” he is almost certainly not referring to 50% + 1 of the people. He’s not talk about plain old majoritarianism. After all, it’s easy to get more than half a populace to vote in bad laws. No, he’s talking about a supermajority at least, if not more.
In addition, I don’t think he’s referring to any old subject — he’s referring specifically to undoing the legal system. Put in other words, “It is not common that 80% of the people want to dismantle a functioning legal system entirely, unless it’s really needed.” Consider in modern America: We can easily find a majority vote to support atrocious abortion laws. But it might be considerably rarer to get a true majority on throwing out the Constitution altogether and start afresh with a new system of government entirely.
We can perhaps see more evidence of this later in the Book of Mormon. We read, for example, about dissensions during the tenure of Pahoran as chief judge:
Nevertheless, they did not long maintain an entire peace in the land, for there began to be a contention among the people concerning the chief judge Pahoran; for behold, there were a part of the people who desired that a few particular points of the law should be altered.
Now, under the system we’ve been describing, Pahoran did not (as chief judge) have the authority to alter laws. And Pahoran knew this and refused, knowing that doing so would be to assert himself as more than mere judge, but also as a king. After all, a judge who can make fiat-law is merely a king by another name. We can thus revisit what was meant in the subsequent verse:
And it came to pass that those who were desirous that Pahoran should be dethroned from the judgment-seat were called king-men, for they were desirous that the law should be altered in a manner to overthrow the free government and to establish a king over the land.
In the view I’m offering here, it was not that the content of the changes they wanted to make that would establish a king. Rather, making the changes would establish whoever made them as a king. It was the manner of altering the law that would establish a king, not the alterations themselves. If the law was to be altered under their current system, it would be through a common law process of adjudication across time, something that requires the sort of patience that political activists generally don’t generally have.