How to Build a Better Government: Smaller, Consensual, and Decentralized
[Your Next Government?: From the Nation State to Stateless Nations by Tom. W. Bell]
When I first met him, Tom W. Bell seemed more like the successful lawyer/entrepreneur type than he did the type of guy to write an intensely well-sourced book synthesizing information from a variety of fields. On that front, he pleasantly surprised me: this book is an excellent, abundantly well-sourced paean to consent, choice, and competitive governance.
Bell begins the book by explaining how smaller, consent-rich and decentralized government is creating a “bottom-up, peaceful revolution” in the way governance is organized around the world. He cites the usual examples of Chinese special economic zones and SEZs all around the world generally as evidence of this. All of this has been surveyed extensively by other authors as well, but Bell does an excellent jo of succinctly re-presenting it here. However, Bell forays into a field I’ve not seen broached elsewhere by examining previous examples of special jurisdiction-type entities within the United States. Specifically, he details the extensive use of foreign trade zones (FTZs) throughout the United States as an example of special jurisdictions closer to home. These zones exempt the businesses within them from many aspects of US customs, excise taxes, and import taxes. These zones are ubiquitous and play host to a sizeable portion of US foreign trade. He closes this survey of the evidence of special jurisdictions by dedicating a chapter to some interesting examples: Henry Ford’s spectacularly failed attempt to make a massive city in the middle of the Brazilian rain forest (Fordlandia), Honduran ZEDEs, and seasteads.
The second section of the book focuses primarily on the legal theory supporting small, decentralized, special jurisdictions. In this section, he first explains the theory behind a polycentric legal order (all of which will be already be intimately familiar to any scholar of common law and anarchocapitalism). He spends time focusing on why much of this legal theory is predicated on a need to maximize consent from all involved parties. It is here that Bell’s most original and interesting work comes into play: he introduces a theory of consent as a gradient, with the lowest rung being hypothetical consent and the highest being explicit, express consent. He concludes this discussion of consent by explaining that all governance structures should attempt, as much as is possible, to move up the “ladder of consent” toward express consent. He closes the theory section of the book by taking a brief foray into constitutional interpretation theory which, although highly intriguing, seemed to be less germane to the core thesis of the work.
The bulk of the book is spent in part three, where he discusses the “practice” of small, decentralized governance jurisdictions. He begins by discussing the six “best practices” that all small jurisdictions should strive for, which are worth reproducing in full here:
- Respect for consent
- Protection of fundamental rights
- Independent adjudication
- Clear and fair interpretive rules
- Remedies for wrongs
- Freedom of exit
He then goes on, after elaborating on these six subjects, to present several ideas that could make currently extant nation-states marginally better in respect to these six best practices. He suggests such things as eliminating governmental immunity (he even has a wonderful section making the case that perhaps government officials should be doubly liable for violation of individual rights, not immune from them) and advocating for the use of what he calls “citizen courts” which are made up of private legal professionals and arbiters to resolve disputes between citizens and their governments rather than government courts hearing cases of government misconduct. Once again, this should be intimately familiar material to anyone who has read Murray Rothbard, Robert Murphy, Randy Barnett, or Edward Stringham. He then goes on to detail how to encourage more ownership of cities through the use of property rights or corporate shares.
He takes a brief dive into democratic theory by advocating for a kind of democracy he calls “double democracy.” Double democracy has a relatively simple institutional framework: a one share/one vote structure for the construction of new policy or statutes paired with a one person/ one vote structure that can only veto actions or appointments-nothing more. In this way, a double democracy can claim the advantages of the one share/one vote system that works so well in provide corporate governance today, while avoiding legitimacy problems and a potentially tyrannical oligarchy by allowing a straightforward majority of people to stop dangerous, rights-violating policies with the one person/one vote system.
However, as a student of democratic theory, I’m dubious of its claimed efficacy in light of general public choice concerns about democratic institutions and in light of what we empirically know about the actual functioning of democratic rule, as in the work of Jason Brennan, Illya Somin, and Bryan Caplan. Bell recognizes this work by making it such that majority rule is restricted only to the vetoing of a law, rule or regulation, limiting the harm rationally ignorant voters can inflict. Double democracy would certainly be a massive improvement on the democratic institutions we currently have, but alas, at the end of the day, it’s still a democracy; it’s entirely plausible that the shareholding majority could enact some property rights-violating law that has a coercive, deleterious effect on a small minority of the population, which is then subsequently upheld by the public at large.
Bell then moves on from this brief digression into democratic theory by calling for special jurisdictions in the US (what he calls USSEZs). These USSEZs are an attempt to bring the astounding success of small, decentralized, competitive jurisdictions to the United States. To oversimplify: Congress would pass a law creating the possibility for USSEZ which will be exempt from almost all regulation and taxation. However, these can only occur by purchasing federal lands (ensuring a revenue stream for the feds), and requires revenue sharing between federal and state governments on the revenue from these land leases. Although the general idea of special jurisdictions in the US isn’t new, Bell’s particular iteration of it is, and it’s still a fantastic idea generally.
He closes the book out by discussing Ulex, his model legal code for the operation of a stateless society. He likens Ulex to the “kernel” software of Linux, allowing for innovation and expansion by actual users of this “legal” software. It is comprised of the restatement of the principles of common law and codifies the most basic tenants of legal procedure and behavior that the common law has evolved to include over the millennia.
Overall, this book is an excellent “backdoor” into anarchocapitalism. Although Bell would never characterize his work this way, this book is excellent at making voluntaryism seem both academically respectable and eminently reasonable. This book also does an excellent job of providing a more thorough and rigorous theoretical underpinning for the nascent start-up society movement quietly and diligently working around the globe to advance human freedom and prosperity.
My only (miniscule) matter of dispute with Your Next Government relates to double democracy. The concept of double democracy is an improvement upon extant democratic institutions, but still suffers from a variety of flaws inherent to any democratic collective decision-making process. Rather, I think the evidence indicates that democracy as an institution is simply not the most effective means of maximizing human liberty or prosperity.
Despite this small point of contention, this book is still an instructive, informative, and important addition to the pantheon of rigorous and original libertarian legal theory. It is certainly in my top 10 anarchy-related works of political theory.
The core thesis of the book is that smaller, decentralized, competitive, polycentric legal systems work better, while all governance structures should strive for express, voluntary consent. What these two things combine to tell the thoughtful reader is simple: stateless associations of private cities are the way of the future.
In other words, anarchocapitalism.