Separation of Law and State

In the framework of the jurisprudential literature, the law-state bond is assumed as a given. Points of dispute emerge only at more advanced stages of the discussion, with respect to such questions as the duty to obey state law or the appropriate extent of state intervention in social relations. This Article will be devoted to a reconsideration of the presupposition of the law-state link and to challenging the state’s status vis-à-vis the law-both in its role as the producer of legal norms and its capacity as the arbiter of disputes.

The Article opens with a comparative elucidation of the Hobbesian and Lockean justifications for the existence of the state and its intervention in the law. The first Part of this Article analyzes the “ills” of the State of Nature, reviewing the range of failures that accompany market supply of the legislative and judicial functions. These derive from the public good characteristics of legislative and judicial services, from the fact that law is a network industry, and from the cartelization tendency in the legislative and judicial markets. Based on these failures in organizing social behavior in the State of Nature, Hobbes’s and Locke’s theories of the social contract justify the concentration of the legislative and judicial functions in the hands of the state sovereign and grant it a monopoly over these functions.

The second Part of this Article critiques Hobbes’s and Locke’s conclusions, first and foremost their disregard for the flaws of the public model, which they support. An implicit premise of both the Hobbesian and Lockean justifications for state law is that where the private market fails, the state will necessarily fare better. However, there is a cost to state intervention, and public supply of legislative and judicial services is not without flaws. Proponents of the public state law model must therefore further show that this model generates more efficient results than those produced by the private model. The second line of criticism will argue that the matter is not resolved even if we assume that the fully privatized model is a less attractive option for the supply of law than the fully public alternative. These two extreme alternatives do not exhaust the entire spectrum of possibilities for the law-state connection. Rather, between these two polar ends there may be intermediate forms of limited state intervention in the markets for legislation and adjudication. These configurations rest on the abandonment of the dichotomy that characterizes Hobbes’s and Locke’s doctrines, between a monolithic public legal order and sweeping nonintervention in the law on the part of the state. This Article closes by presenting a possible median point along the axis that illustrates the possibility of correcting the failures of the legislative and judicial markets in the framework of a polycentric legal regime based on more limited state intervention in these areas. The conclusion offered will be that while the ills of the State of Nature, as identified by Hobbes and Locke, are valid justifications of state intervention per se in the legislative and judicial markets, they do not justify intervention in the form of a state monopoly over the law. State intervention in legislation and adjudication is vital for creating the space in which legal regimes can grow-where rights can be set and adjudication conducted in light of those rights. There is absolutely no need, and therefore no justification, for the state to hold the sole power to set these rights itself and decide disputes in light thereof.