Social Contract, Free Ride. Anthony de Jasay

of royal justice gains from the existence of this back-up force, whose cost is borne by general revenue and need not be borne by individual litigants. Moreover, the cost of enforcing a judgment against a very powerful litigant is the more easily financed the more “averaging” is taking place among cases, which gives an advantage to the large centralized enforcing authority, i.e., in practice the all-inclusive state.

      2. The secondary or induced influence erodes the quality and acceptability of non-sovereign enforcement.

      (a) From common law to equity. One may assume for simplicity that the authority of non-sovereign, decentralized enforcement, by which I mean the extent to which it can enforce its judgments over and above what could be explained solely by the force at its disposal, is rooted in the regard for the customary law it applies. Customary law offers little scope for discretion. The state acting as sovereign contract-enforcer has important interests flowing from its vastly more substantial role as the tenant of political power, charged with maximizing some definition of the public good. Applying common law is mostly neutral, Equity often useful in furthering these interests. Both by overt legislation and by more surreptitious judicial law-making, the state has “natural” tendencies, explicable in terms of rational choice, to introduce considerations of public policy and social justice into contract law. Rival jurisdictions cannot remain entirely indifferent to these developments; yet as they move away from (or adjust) common law, they lose, and the state gains, relative authority.

      (b) Judge in own cause. Suppose, once more for simplicity, that with all other things equal judgments are the easier to enforce the more impartial the judge seemed in the eyes of the parties; his impartiality as presumed by them would increase with his distance from the case. Self-help, bought help, and mutual aid by coalition members would then be regarded as the least impartial, and the agents of the state as the most impartial, of possible judges. The importance of impartiality is obviously the greater the stronger is the element of discretion, or the less automatic is the “formalistic” rule-application associated with customary law. Hence, by causing, in one way and another, Equity to prevail over the common law and discretion over rule-application, the state enhances the weight of its own comparative advantage in impartiality and the disadvantage of those who, in their smaller jurisdictions, are in the nature of things both judge and party.