Having begun reading Bruce L. Benson’s book: The Enterprise of Law: Justice without the State it is hard to not be struck by how radical of a notion the idea of a private law society would. Most Americans have grown up with the idea that state-provided services such as legal administration, law enforcement, and rule formulation are crucial functions of government. The core of Dr. Benson’s work goes against conventional wisdom and suggests otherwise. Providing a great deal of historical and modern evidence to repudiate the idea that the provision, implementation, and enforcement of rules need to come from conventional political channels. While I am now on to chapter three of the book, I am still stunned by one observation that Benson made in Chapter one. Not that his analysis in the chapter wasn’t impressive, but I was already familiar with primitive legal arrangements from reading previous papers by Benson.
This observation was so conspicuous and omnipresent that it could have easily been overlooked. If the public provision of legal services is effective and efficient then why do so many municipalities supplement their publicly funded code enforcement agents with axillaries from private security firms (p.5)? This would be a giant red flag for any thoughtful observer. If state and local law enforcement cannot handle their duties without the help of the private market, why is it imperative to make sure we maintain publicly-funded law enforcement bureaus nationwide? Especially, when one considers when Benson initially wrote this book back in 1990 the number of private security agents already outnumbered the number of government law enforcement agents. Making it reasonable to question the resistance to privatizing law enforcement when the state already utilizes agents from private firms. Some may still argue that being motivated by profits private law enforcement firms would develop perverse incentives that would hamper the adherence to their duties. These incentives exist even in a public model. Law enforcement agencies whether local, state, or federal like another variety of government agencies fight for their share of public expenditures. Unlike a private firm are not constrained by profit-and-loss mechanisms.