The Code

2004-03-04

In an extremely lengthy post such as only academics and retirees have time to write, Roderick Long writes as follows about the possibility that a monopoly government could be a mere "licensing agency" for private rights-protection agencies:

What exactly is involved in requiring all protection agencies to conform to "a single, overarching framework of law"? Is it only a set of general legal principles that's being imposed, or is it a full legal code in all its detailed specificity?

Suppose it's the latter. How could the licensing agency be justified in doing this? If the answer is that there's only one possible correct legal code, my response is that although there's only one correct set of general principles, there will always be many different specific ways of applying them. Sometimes those different ways will be equally legitimate; in those cases requiring agencies to employ specification A in lieu of equally legitimate specification B constitutes aggression (a moral objection to the licensing agency). At other times one specification will have some superiority over another -- but, for familiar Hayekian reasons, the best way to discover which specification is best is through market competition (a practical objection to the licensing agency). In either case, pure anarchy is preferable to the licensing agency.

Perhaps what's supposed to justify the licensing agency in imposing a single specification is not that there's only one correct specification but rather that a legal system can't function properly unless all parties accept the same specification. (For example, driving on the left and driving on the right are equally good systems, but it matters that everyone driving on the same road accept the same system.) Well, it depends. Sometimes uniformity matters and sometimes it doesn't. (Alabama and Georgia are part of the same legal system, but have different laws on many matters; yet Alabamians and Georgians manage to do business successfully with one another.) In any case, private legal systems have a history of providing legal uniformity when it's needed; the Law Merchant, for example, succeeded precisely because it provided more legal uniformity than the government courts.

Since I've recently finished a great deal of intensive work on specifications (albeit for Internet protocols rather than legal frameworks), his description piqued my interest. We can look at Long's "principles" as a set of requirements (like, say, RFC 2779). Distinct specifications can address those requirements in different ways yet remain interoperable (like, say, XMPP and SIMPLE). One danger comes from groups who don't share the same principles or adhere to the same requirements, or whose specifications are so opaque or arbitrary as to be non-interoperable (like, say, AIM or MSN). In the law, such groups are often called other countries (even enemies). When two localities share the same principles but have different specifications, we call them different states (Long's example of Alabama and Georgia) or different members of the same civilization (e.g., France and Germany). Naturally there is a continuum here: although France and England are both nations within Western civilization, the foundations of their legal codes are different enough that it makes sense to speak of them as often having different principles. Yet on the Net, such groups are not always in opposition, they simply form separate communities of practice (e.g., email vs. instant messaging); it is not as if such communities are at war, it's that they are attempting to solve different problems. We see a similar phenomenon in the law, wherein commercial law (originally codified in the Law Merchant) operates on a different basis than criminal law, civil law, maritime law, etc. Interestingly, in both law and computers we speak of code. I'm sure Larry Lessig has written on this much eloquently than I can, but the analogy struck me anew while reading Roderick Long's essay.


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