Polycentric Governance

and the Good Society

WLWOH3DJHL 6WDJH'UDIW
 POLYCENTRICITY: STUDIES IN INSTITUTIONAL
DIVERSITY AND VOLUNTARY GOVERNANCE

Series Editors: Lenore T. Ealy and Paul Dragos Aligica

This interdisciplinary series explores the varieties of social institutions, processes, and
patterns of governance that emerge through individuals’ coordination, cooperation,
and competition in governance systems based on freedom of choice, freedom
of exchange, and freedom of association. Under conditions of relative freedom
of association, human diversity leads to institutional diversity and polycentric
structures. In contrast to monocentric, unitary, and hierarchical command and control
systems, polycentric social systems comprise many decision centers interacting freely
under an overarching set of common rules. First introduced by Michael Polanyi as a
descriptive and normative feature of free societies and further elaborated by Nobel
Prize in Economics recipient Elinor Ostrom and public choice political economy
co-founder Vincent Ostrom, the notion of polycentricity has proven to offer a powerful
analytical framework for expanding our understanding of the operation of governance
regimes, constitutional federalism, law, public administration, private ordering, civics
and citizenship, subsidiarity, nonprofit organization, cultural pluralism, civil society,
and entrepreneurship. Studies in this series will refine the conceptual framework
of polycentricity and its governance theory implications, while expanding their
application in the study of what Alexis de Tocqueville called the art and science of
association. These studies should be of interest to scholars, policymakers, executives,
social entrepreneurs, and citizens working to devise ways of living together
harmoniously in civil societies.

Polycentric Governance and the Good Society: A Normative and Philosophical

Investigation edited by David Thunder and Pablo Paniagua
Social Movements and Liberal Political Economy by Mikayla Novak
The Uses of Diversity: Essays in Polycentricity by David Ellerman
Cryptodemocracy: Blockchain Technology and Democratic Governance by Darcy
W.E. Allen, Chris Berg, and Aaron Matthew Lane

WLWOH3DJHLL 6WDJH'UDIW
 Polycentric
Governance and
the Good Society
A Normative and
Philosophical Investigation

Edited by David Thunder

and Pablo Paniagua

LEXINGTON BOOKS
Lanham • Boulder • New York • London

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WLWOH3DJHLY 6WDJH'UDIW
 Contents

Introduction: The Timeliness of Polycentric Theories of Governance 1

Pablo Paniagua and David Thunder

PART I: THE ETHICS OF POLYCENTRIC

GOVERNANCE 17
Chapter 1: An Ethical Case for Bottom-Up, Polycentric Governance
in a Complex Society 19
David Thunder
Chapter 2: Is an Architectonic Pluralism Possible? 41
Mark Hoipkemier
Chapter 3: Polycentric Justice 63
John Thrasher

PART II: THE FEASIBILITY OF POLYCENTRIC

ORDERS 85
Chapter 4: The Problem of Complexity and the Emergence of
Polycentric Political Order 87
Dries Daems and Alexander Schaefer
Chapter 5: Whither Stability? Polycentric Democracy and Social
Order 115
Pablo Paniagua and Kaveh Pourvand
Chapter 6: Self-Governance Solutions to Social Dilemmas: A
Polycentric Approach 137
Vlad Tarko

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 vi Contents

PART III: PRINCIPLES OF POLYCENTRIC LAW AND

STATECRAFT 163
Chapter 7: Panarchy: Non-Territorial Polycentricity 165
Aviezer Tucker
Chapter 8: Polycentricism, the Rule of Law, and the Intelligibility
of Human Rights Law 187
Pilar Zambrano
Chapter 9: The Constitution of Liberties: Polycentric
Constitutionalism and the Westminster Export Model 201
W. Elliot Bulmer

Index 223
About the Contributors 235

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 Introduction
The Timeliness of Polycentric
Theories of Governance1

Pablo Paniagua and David Thunder

Many theorists who investigate how society ought to be governed assume that
a highly centralized or monocentric State administration is the most appropri-
ate mechanism for governing social life, and then go on to investigate how
such a centralized State should be structured and which principles should
animate its governing organs. For example, local governments are treated
as mere emanations of “the State” rather than independent political units, or
principles of justice are devised for a “State” without taking into consider-
ation the authority and diverging priorities of sub-state governments. In this
book, we wish to critically interrogate the assumption that the governance of
social life should be conducted in a highly centralized manner. Our critical
examination will be conducted at the intersection of politics, philosophy, law,
and economics.
Specifically, the goal of this book is twofold: first, to critically examine the
role of the monocentric state in either supporting or undermining the health
and stability of the social order; and second, to explore the philosophical
foundations of alternative polycentric arrangements of governmental power
and authority, and how they can help promote a good society. In this collected
volume, our authors employ a variety of different philosophical and method-
ological perspectives as they elaborate approaches to governance and politi-
cal order that grapple seriously with the complex and multifaceted nature of
social life. This is the first serious attempt in the literature to explore in depth
what it means, not only from an economic and organizational standpoint but
also from a broader ethical, sociological, and anthropological perspective, to
live in a polycentric political system and how polycentric orders might con-
tribute to human and societal flourishing.

LQWURGXFWLRQ3DJH 6WDJH'UDIW
 2 Pablo Paniagua and David Thunder

THE SCOPE OF THE BOOK

Since the age of monarchical absolutism, when King James (1566–1625)

described himself as “God’s lieutenant on earth,” political theorists and actors
have expended a great deal of energy spelling out the need for a central
government to establish a fully integrated public order and oversee social,
political, and economic life across a national territory. While these centraliz-
ing tendencies have not gone unchallenged, polycentric and dispersed forms
of governance remain underrated and understudied by mainstream politi-
cal theorists, philosophers, and PPE (Philosophy, Politics, and Economics)
scholars alike.
This collection of essays aims to place the idea of polycentric governance
under the analytic microscope, not merely as an explanatory tool for mak-
ing sense of particular social practices, nor simply as a potential strategy for
solving local coordination problems, such as the provision of policing and
water, but as a normative ideal for social life conceived more broadly. When
we speak of polycentric governance, we have in mind a plurality of units of
governance enjoying substantial mutual autonomy yet sharing some common
interests, submitting to shared rules and decision procedures, and responding
adaptively to each other’s decisions. The diverse units of a polycentric gov-
ernance arrangement may be guided by a similar logic or rationale, e.g., the
logic of market exchange or utility maximization; or alternatively, they may
be guided by heterogeneous logics or rationales, e.g., the logic of economic
production, religious fidelity, public administration, or artistic creativity.
In this book, we are not interested exclusively in offering a morally
detached description of a set of social phenomena and their operations;
rather, we wish to examine the advantages of polycentricity as a method or
philosophy of governance, when compared to more monocentric approaches.
Polycentric approaches to governance may be distinguished from their more
monocentric or centralizing counterparts inasmuch as they maintain that
effective or successful social governance requires (i) a plurality of organs of
governance, (ii) enjoying substantial levels of mutual autonomy, (iii) capable
of interacting with each other and submitting to shared rules and decision pro-
cedures, in productive and functional ways, (iv) without being controlled by
a uniquely sovereign or supreme super-coordinator.2 A centralizing approach
could accept (i) and (iii)—a plurality of governmental organs capable of
interacting with each other productively under shared rules and decision
procedures—but would reject (iv), instead viewing the subordination of the
prerogatives of local governments to a sovereign super-coordinator as inevi-
table or essential for public order.

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 Introduction 3

Of course, we are not the first to discuss the theory and practice of polycen-
tric governance and coordination. Governmental and institutional polycen-
tricity have been ably investigated by political economists like Vincent and
Elinor Ostrom, political and economic historians like James Scott, theorists
of federalism such as Daniel Elazar, and political theorists such as Chandran
Kukathas and Gerald Gaus. The latter, in particular, has led the way in inves-
tigating how a stable political order could emerge from a plural and diverse
society. Without wishing to detract from the value of these contributions, we
contend that the practice of polycentric governance and its ethical and institu-
tional foundations remain under-theorized. For example, a variety of political
economists have discussed the efficiency gains of polycentric governance and
the inefficiency of hyper-centralization, but we see few explicit and system-
atic defenses of polycentricity that are anchored in a general discussion of
human and societal flourishing, broadly construed.
What makes this volume distinctive is that it seeks to explore the implica-
tions of a polycentrically governed social order not only for economic coop-
eration and efficiency, but also for fundamental human aspirations, such as
friendship, community life, political stability, and rational self-government.
We have yet to see the emergence of a compelling institutional and normative
theory of polycentric governance as an effective framework for a flourishing,
welfare-enhancing society—or if such a theory does exist, it has not garnered
the attention it deserves. Our goal in this edited volume is to lay some of the
philosophical and institutional-theoretical groundwork for such a theory.
Perhaps more than any well-defined doctrine about social life, what unites
the authors of this volume is a suspicion of overly systematizing and homoge-
nizing conceptions of social and economic order, and a rejection of the notion
that society could be sculpted into a perfectly integrated whole, such as a
tightly harmonized constitutional system. Scholars friendly to polycentricity
and decentralization are disinclined to read systematicity, homogeneity, and
full harmonization into situations that are, on their face, riddled with hetero-
geneity and complexity, such as the teeming life of a city or the political life
of a nation. In other words, polycentrists—two notable examples being Elinor
Ostrom and James Scott—are philosophically and methodologically disposed
to resist the temptation to purchase explanatory elegance at the cost of social
reality. A flattened, two-dimensional social order may be easier to decipher.
However, it is a fictitious projection that artificially flattens out the structural,
ideological, cultural, and institutional heterogeneity of modern societies and
consequently underestimates the challenges of effective governance.
We are optimistic that a serious examination of the benefits of polycen-
tric governance for human society will show that polycentricity is not just
a valuable tool of public administration, but an indispensable conceptual
framework and normative guide for a human society capable of servicing its

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 4 Pablo Paniagua and David Thunder

members’ needs and responding to their reasonable hopes and expectations

as human persons. Hence, this book could be read as an attempt to lay out, in
a rough and preliminary fashion, the foundational principles of a normative
and philosophical theory of polycentric law and politics, with the potential to
reinvigorate scholarly debates about governance and civil order in complex
and diverse societies.

POLYCENTRIC THINKING IN PHILOSOPHY

AND THE SOCIAL SCIENCES

The pushback against overly homogenizing and centralizing approaches

to governance and social order is already well underway. One of the most
influential schools of polycentric thinking is what has become known as the
Bloomington School of Political Economy, spearheaded by studies of poly-
centric governance led by Elinor and Vincent Ostrom, starting in the 1960s
(e.g., V. Ostrom, Tiebout, and Warren 1961). One representative example
of their blending of theoretical and empirical investigation is their study of
the comparative merits of decentralized versus centralized policing systems
(E. Ostrom, Parks, and Whitaker 1973).
Since then, much of the work on polycentric systems of social coordination
has followed in the Ostroms’ footsteps, investigating methods through which
the provision of public goods and services and the solution of a variety of
problems of social and economic coordination may be achieved by multiple
organs of governance with substantial levels of mutual autonomy, cooperat-
ing on a more or less voluntary basis (e.g., Schneider 1989, McGinnis 1999,
Pennington 2008, Paniagua 2022, Paniagua 2020, Aligica and Tarko 2013,
Aligica 2014). These sorts of studies seek to interrogate the practical benefits
of polycentric governance for the production and provision of public goods,
such as security, public health, roads, and water infrastructure, and to dis-
prove widely held assumptions concerning the preferability of monocentric
models of public administration.
We have also seen important discussions of polycentric governance in stud-
ies of federal and confederal political systems (Buchanan 1996, Elazar 1987,
Kriesi and Trechsel 2008, V. Ostrom 1991) and governance beyond the State
(Stringham 2015, Ellickson 2009, Auerbach 1984, Risse 2013, Scott 2014),
not to mention a wave of literature in recent decades on political and legal
pluralism (Delmas-Marty 2009, Griffiths 1986, Teubner 2012b, Cerny 2010,
Hirst 2013, Tully 1995, Muñiz-Fraticelli 2014, Levy 2015), which shows the
futility of attempts by modern thinkers to integrate social order under a single,
uniform system of law or governance. Nevertheless, one comes away from
this impressive bank of research wondering why polycentricity, especially in

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 Introduction 5

a world in which the old, centralized models are losing their grip on social
reality, is not on the tip of the tongue of every serious political scientist, law-
yer, political philosopher, and social theorist.
How might we explain the relatively low visibility of polycentric gover-
nance in contemporary social science and philosophy? Two possible explana-
tions come to mind. First, even if the concept is relevant to many aspects of
social, political, and economic life and has able and sophisticated defenders,
it remains countercultural in the Kuhnian sense of not fitting squarely into the
centralizing paradigms of modern social science, whether internationalism,
which divides the world up into States as collective rational actors; statism,
which views the State as the supreme source of order in the national sphere;
or certain versions of legal positivism, which essentially assume the existence
of a single system of law in any given territory (two prominent exponents of
this view are Hans Kelsen 2002/1934 and H.L.A. Hart 1994/1961).
Highly centralized and State-centric paradigms of social governance and
law are undoubtedly propagated and reinforced by State-controlled educa-
tional curricula and media, not to mention highly stylized images of more
chaotic eras of feudal oppression, anarchy, and religious warfare (based on
questionable historical generalizations), intended to serve as a stern warning
against the pitfalls of decentralizing political and social authority. As Nobel
Prize winner Elinor Ostrom lamented in 2005, “Leviathan is alive and well
in our policy textbooks. The state is viewed as a substitute for the shortcom-
ings of individual behavior and the presumed failure of community” (Ostrom
2000, 5). One could argue that some of the major works in political philoso-
phy (e.g., Rawls 1971), political science (e.g., Downs 1957), and political
economy (e.g., Samuelson 1948) published since World War II have sig-
nificantly boosted the salience and prestige of State-centric visions of social
order, relegating competing paradigms to the margins of academia.
A second possible explanation for the low visibility of polycentricity in
modern social science and philosophy is that those who have broken with
centralizing conventions to seriously investigate the potential explanatory
and normative payoffs of attending to polycentric structures of social gov-
ernance tend to be scattered across methodologically and topically heteroge-
neous fields of research, many of which pay limited attention to each other’s
findings and insights, and few of which pretend to offer anything like a
“grand” unifying theory of politics or society.
The relative specialization and insulation of many domains of polycentric
research, such as the institutional dynamics of federal polities (e.g., Bednar
2008), the proliferation of constitutional orders that govern diverse spheres
of society (Teubner 2012), or the complex, multilayered political economy
of metropolitan areas (Ostrom 1972), leads to an incomplete grasp of poly-
centrism’s larger significance for the social sciences and weakens scholars’

LQWURGXFWLRQ3DJH 6WDJH'UDIW
 6 Pablo Paniagua and David Thunder

capacity to develop an account of polycentric governance capable of speak-

ing across disciplinary boundaries. Hence, if we wish to expand its analytical
usefulness and theoretical visibility, it seems wise to adopt a broader, more
integrated PPE (Philosophy, Politics, and Economy) perspective on polycen-
tric governance. This is what we have done in this book.

SCHOLARLY CONTRIBUTION

During recent decades, the challenges of hyper-centralized political and

financial power, illiberal technocracy, political polarization, and civic frag-
mentation have threatened the very foundations of liberal democracies. The
liberal ideal of the Open Society, as F. A. Hayek (Hayek 1978) understood it,
namely a tolerant, free-market society of strangers governed by impersonal
rules, has come to be severely questioned from within, especially when some
sectors of society see their quality of life decline in what they take to be a
free-market economy. Indeed, as we can see from the steady polarization of
Western politics and growing distrust in public institutions, the Open Society
is a precarious achievement, whose future is far from guaranteed. This gives
rise to a fundamental, yet highly neglected, question, namely, how can we
realize the Hayekian ideal of the Open Society in a manner that is resilient to
the challenges of centralized power, burgeoning technocracy, political polar-
ization, and civic fragmentation?
Specialized and applied studies of polycentric governance can effectively
exemplify and illustrate the power of polycentric approaches to social order
and coordination. Three prominent examples of works of this sort are three
edited volumes published over the past twenty-five years: Polycentricity and
Local Public Economies: Readings from the Workshop in Political Theory
and Policy Analysis (1999), edited by Michael D. McGinnis; Governing
Complexity: Analyzing and Applying Polycentricity (2019), edited by
Thiel, Blomquist, and Garrick; and Polycentricity in the European Union
(2019), edited by van Zeben and Bobi . Each of these three volumes exam-
ines the concept of polycentric governance and order through the lens of
applied problems such as water management, municipal governance, and
inter-institutional governance within the European Union. Even though these
contributions are extremely valuable in their applied fields of inquiry, their
level of specialization prevents them from offering a broader, more ambitious
vision of the role of polycentric governance in the good society and its con-
tribution to human flourishing. We address this gap in the literature by taking
up these larger questions in a way that aims to be accessible to students and
scholars from a cross-disciplinary audience. In this way, we hope to push the
idea of polycentric governance further into the mainstream of contemporary

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 Introduction 7

academic discourse and promote serious consideration of polycentric solu-

tions to a wide range of coordination problems confronting communities
across the world.
This collection of essays is the first to carry forward the political economy
tradition of polycentric governance and the Open Society, not exclusively
on its own terms, but also under the broader umbrella of moral, political,
and social philosophy. Building on works like The Open Society and Its
Complexities (Gerald Gaus 2021) and a diverse body of work at the intersec-
tion of philosophy, politics, law, and economics, the arguments advanced in
this volume suggest that under the right conditions, polycentric governance
can be the institutional cornerstone of a resilient Open Society. The book
offers normative arguments to show the ethical attractiveness of polycentric
governance in a world marked by moral, cultural, and political diversity,
disagreement, and conflict. But it also marshals PPE arguments and evidence
to show that a resilient Open Society must rely on polycentric systems of
governance if it hopes to attain political stability in the face of complexity and
disagreement. Such arguments should offer valuable food for thought about
the relationship between modern democracy and institutional and cultural
pluralism, as well as the limitations of monocentric solutions to the problem
of political order.
We aim to illuminate the value of polycentric governance arrangements
and their fit with human needs in ways that resonate with the findings of
Ostromian institutional economists, yet also examine this topic through the
lenses of neighboring disciplines, such as moral philosophy, law, history,
and political science. We take a step back from the intricacies of specialized
debates within federalism and institutional economics, which often focus
narrowly on governmental stability and the efficient satisfaction of economic
needs, to ask larger philosophical and normative questions about the theoreti-
cal grounding for polycentrism and its general merits as a principle of social
organization, when compared with more monocentric approaches. While
there have been a number of individual works offering a broad philosophi-
cal treatment of polycentrically structured social orders (e.g., Müller 2019,
Thunder 2018, Aligica 2019), to the best of our knowledge, there have been
no edited collections, like this one, presenting a variety of approaches to the
justification, design, and implementation of polycentric social orders with
a broad philosophical and normative focus beyond the fields of political
economy and public choice theory.
An academic world immersed in centralizing paradigms of social order, in
particular those that look to the State or global actors to impose order from the
top down, is gradually waking up to the fact that centralizing and homogeniz-
ing paradigms of social governance, such as Statism and internationalism, are
unsatisfactory both as explanatory and action-guiding principles. The dream

LQWURGXFWLRQ3DJH 6WDJH'UDIW
 8 Pablo Paniagua and David Thunder

of a centrally planned and controlled society nourished by August Comte and

other European Enlightenment thinkers is fading into the distant past as we
wake up to the reality of social complexity and its far-reaching implications
for effective social governance. In this context, a broad and multidisciplinary
investigation of the types of institutional arrangements that can rise to the
challenges of governance and accommodate diverse ways of life under condi-
tions of social complexity is long overdue.
A strong case can be made that polycentric governance arrangements, far
from being a recipe for anarchy or social disorder, are actually more respon-
sive to the challenges of governing a complex and multifaceted social order
than their centralizing counterparts, and they may more reliably respond to
a plurality of human needs and aspirations on the ground. Rather than fol-
lowing the conventional path of suppressing complexity and diversity for the
sake of reaching agreement on justice and political stability, we see complex-
ity and diversity as assets that should be leveraged to make the Open Society
a more prosperous, resilient, and flourishing place to live.
We hope that Polycentric Governance and the Good Society will become
a valuable reference work for academics and students looking for a probing,
cross-disciplinary discussion of the ethos and institutions of liberal democ-
racy under conditions of social pluralism, in particular the challenge of
creating and preserving stable political institutions in a morally, politically,
and culturally diverse Open Society. A book of this nature should appeal to
students, academics, and researchers interested in the problem of order and
governance under conditions of advanced social complexity in fields such as
political science, moral and political philosophy, political economy, public
administration, and legal and constitutional theory. This book should be of
special interest to the PPE community of scholars interested in the justifica-
tion, emergence, and preservation of a resilient Open Society.
Last but not least, we believe this book will hold interest for non-academic
citizens who want to deepen their understanding of the challenges confront-
ing free, democratic, and open societies in a world of deep moral and cultural
pluralism. At a moment when the old idea of a State-centric society is under
threat from the globalization of markets and politics, the rise of moral and
cultural fragmentation, and the crisis of the welfare state, a volume develop-
ing alternatives to monocentric paradigms of order should appeal not only to
specialized academic scholars, but also to a lay public interested in learning
more about novel approaches to governance that break with traditional Statist
paradigms of civil order.

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 Introduction 9

OVERVIEW OF THE CHAPTERS

In this collection, we investigate the politics, philosophy, and economics of

polycentrism not merely as an empirical description of a particular type of
social arrangement, but as a normative and philosophical position on how
society ought to be governed or might be most successfully governed. To
think polycentrically about social order is to view social life as a plurality
rather than a singularity: to acknowledge and attempt to do justice to the plu-
rality of communities, narratives, and normative orders that interact dynami-
cally in any extended social space. Echoing Isaiah Berlin’s famous allegory,
to think polycentrically about social order is to recognize that modern soci-
eties should not be conceived as a “compact coral reef,” but as a complex
ecosystem inhabited by an irreducible plurality of lifestyles and values, which
cannot be fully embodied within a single human life or a single community.
There is much at stake in vindicating this pluralist vision, given that personal
and societal flourishing have suffered enormous harms from the suppression
of diversity through unitary conceptions of justice, top-down conceptions of
economic planning, or hyper-centralized forms of public administration.
This volume comprises nine contributions, reflecting on the logic and
merits of polycentric governance from ethical, organizational, sociological,
political, economic, historical, and legal-constitutional perspectives. The
book is divided into three main sections: i) the ethics of polycentric gov-
ernance, ii) the feasibility of polycentric orders, and iii) the principles of
polycentric law and statecraft. In Part I, the ethics of polycentric governance,
we have three contributions by David Thunder, Mark Hoipkemier, and John
Thrasher, respectively.
In Chapter 1, “An Ethical Case for Bottom-Up, Polycentric Governance in
a Complex Society,” David Thunder seeks to complement and further illumi-
nate existing defenses of social and institutional pluralism by more explicitly
grounding the case for polycentric governance in the social and institutional
infrastructure of flourishing communities. Building off the central value
of the “freedom to flourish” and its social preconditions, Thunder lays out
three guiding principles for a polycentric regime: individual and corporate
voluntarism, proximity of rulers to ruled, and the bottom-up constitution of
power. The aim of good governance and sound social coordination, on the
approach defended by Thunder, should not be to monopolize the functions
of social governance, but to cooperate with other relevant actors in facilitat-
ing the expansion of opportunities for human flourishing while fostering and
protecting the integrity of the complex, multidimensional infrastructure of
human flourishing.

LQWURGXFWLRQ3DJH 6WDJH'UDIW
 10 Pablo Paniagua and David Thunder

In Chapter 2, “Is an Architectonic Pluralism Possible?” Mark Hoipkemier

makes a bold case that Aristotelian thinking about the common good, con-
trary to popular belief, actually supports the ideal of a free and pluralistic
society. Hoipkemier argues that political pluralists have nothing to fear from
embracing the politics of the common good, rightly understood. It is a staple
of Aristotelian doctrine, on Hoipkemier’s interpretation, that the political
community includes and oversees all aspects of human flourishing, while
Catholic scholars frequently identify the “common good” as simultaneously
including the whole good of the person, and being the proper object of State
supervision. But this all-encompassing conception of the common good as
something to be promoted by the State seems to license totalitarian meddling
in every dimension of supposedly “private” life. In response to this challenge
to the philosophy of the common good, Hoipkemier argues that the common
good should not be understood in this highly integrated manner. Instead,
we should understand the common goal citizens share as the public order
among various human goods and projects. In Hoipkemier’s view, this order
does concern all of life’s domains, but it only licenses political scrutiny over
locally shared goods insofar as their role in this larger order is in question.
In Chapter 3, “Polycentric Justice,” John Thrasher argues for an exten-
sion of the concept of polycentricity from institutions and organizations to
norms of justice. Thrasher argues that justice as a global standard of legiti-
macy and a universal evaluative norm is ill-suited to a polycentric system
of governance. While polycentric orders need legitimacy in the traditional
sense and higher-level regulative norms, both are better achieved through
a non-Rawlsian form of contractualism, which is not focused on justifying
a universal conception of justice. A polycentric-friendly version of contrac-
tualism will justify less substantive procedural norms and institutional rules
instead. The insight that polycentric theory leads us to, on Thrasher’s view,
is that contractual public justification can generate a standard of legitimacy
without relying on justice as a basic norm. This chapter offers an original
non-Rawlsian interpretation of contractualism, consistent with a diverse and
polycentric social order.
In Part II, three essays address the feasibility of polycentric orders. The
contributions come from Dries Daems and Alexander Schaefer, Pablo
Paniagua and Kaveh Pourvand, and Vlad Tarko, respectively.
In Chapter 4, “The Problem of Complexity and the Emergence of
Polycentric Political Order,” Alexander Schaefer and Dries Daems examine
the conditions under which polycentric political systems will likely emerge.
Various normative and empirical aspects of polycentric political governance
have garnered much attention, but political scientists have yet to closely
examine the process through which polycentric political systems emerge.
Schaefer and Daems aim to fill this gap by proposing an explanation of the

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 Introduction 11

emergence of the polycentric state. They illustrate their explanation of the

emergence of polycentric political order with a comparative case study focus-
ing on Han China’s and ancient Rome’s governance structures. This chapter is
methodologically innovative, using analytic models and historical analysis to
understand the formation of polycentric orders.
In Chapter 5, “Whither Stability? Polycentric Democracy and Social
Order,” Pablo Paniagua and Kaveh Pourvand address a perennial question of
political theory, namely how to stabilize a just regime. They view this prob-
lem as especially pressing in the context of the highly globalized and diversi-
fied social orders of the late twentieth and early twenty-first centuries, and
as further accentuated by the emergence of the Weberian state that anchors
society under a single, coercive structure of governance, strangely at odds
with the fluidity and complexity of modern societies. Paniagua and Pourvand
make a case for polycentric democracy as a better solution than the central-
ized nation-state to the challenge of stability. They argue that polycentric
democracies, characterized by plural and overlapping centers of governance,
are more robust (anti-fragile) in the face of political diversity, conflict, and
instability than their more centralized counterparts, much as a variegated
ecology is more robust than a monoculture. This chapter, operating at the
intersection of political economy and political theory, offers valuable insights
into the resilience and robustness of polycentric political systems.
Our third contribution on the feasibility of polycentric order comes from
Vlad Tarko. In Chapter 6, “Self-Governance Solutions to Social Dilemmas: A
Polycentric Approach,” Tarko argues that effective self-governance is an
important tool for solving “social dilemmas,” understood as situations in
which parties affected by a social problem do not have sufficient incentives to
behave in ways that could solve it. Following in the footsteps of Vincent and
Elinor Ostrom, Tarko rejects the traditional market-versus-State dichotomy,
pointing us to a third approach, in which interested parties can play an active
role in creating and developing regulatory and enforcement schemes from the
bottom up. This approach is inherently polycentric due to the autonomy it nec-
essarily affords to local actors. Tarko illustrates the power of self-governance
as a solution to social dilemmas by explaining how it has been leveraged
to solve problems of water governance, and then delves into the theoretical
significance of these phenomena in light of debates about self-governance
by authors such as Robert Dahl and James Buchanan. Tarko rounds out the
chapter by exploring how the concepts of polycentricity and entangled politi-
cal economy allow us to move from the analysis of small-scale communities
to large-scale federal and international organizations.
In Part III, our volume is brought to a close by a set of essays on polycen-
tric law and statecraft.

LQWURGXFWLRQ3DJH 6WDJH'UDIW
 12 Pablo Paniagua and David Thunder

In Chapter 7, in “Panarchy: Non-Territorial Polycentricity,” Aviezer Tucker

defends a “panarchist” theory of state formation. The dominant Westphalian
model of the state based on a territorial monopoly over the legitimate use of
violence fits seventeenth-century technology, developed at a time when geo-
graphical distances could not be traversed efficiently, and even information
took months to travel the globe. However, these monistic, top-down concep-
tions of political order are of limited relevance in a politically, culturally, and
economically specialized, fragmented, and globalized world. Panarchy, a
meta-political theory of non-territorial states founded on explicit social con-
tracts, was first introduced in 1860 by the Belgian scholar Emil DePuydt. He
proposed that citizens may sign a social contract with a State and may change
their States without moving. Tucker suggests that in today’s world, where
citizens of nation-states have radically different ideas of the common good,
panarchy may allow them to live together peacefully, each self-selecting into
his or her own preferred contractual arrangement. This chapter shows how the
intellectual tradition of panarchy may enrich and complement other forms of
polycentric thinking.
In Chapter 8, “Polycentrism, the Rule of Law, and the Intelligibility of
Human Rights Law,” Pilar Zambrano inquires whether a polycentric legal
system could, potentially, address the challenges that both legal and moral
pluralism raise for the intelligibility of law. She describes the fact of legal
pluralism and its impact on present-day legal practices, pointing out how
bottom-up and top-down sources of law overlap and interact in complex
ways not contemplated by top-down, Statist paradigms of law, giving rise
to what Francesco Viola calls the “legal space.” She argues that the fact of
legal pluralism raises serious difficulties for the intelligibility of law, to the
extent that society-wide and global laws tend to be ever more deracinated
from embodied social practices. Finally, she argues that this problem seems to
point us in the direction of a polycentric theoretical approach to the creation
and adjudication of law, though this approach is quite underdeveloped in the
philosophy of law.
Finally, in Chapter 9, “The Constitution of Liberties: Polycentric
Constitutionalism and the ‘Westminster Export Model,’” Elliot Bulmer
argues that a polycentric political and legal framework may not necessar-
ily require novel (or radically old) constitutional ideas and practices, but
could be achieved within prevailing constitutional models. It is recognized
that much of modern Western constitutional thought is based on monocen-
tric notions: “the People” is often construed as a singular collective actor,
expressing a “national will” and possessing nominal sovereignty, in whose
name constitutions are made and remade, and from whom all public powers
are derived. However, Bulmer reminds us that monocentric popular sover-
eignty is not the only foundation for modern constitutionalism. In particular,

LQWURGXFWLRQ3DJH 6WDJH'UDIW
 Introduction 13

while the British-derived constitutions that spread around the world in the
decolonization era mostly copied the majoritarian governance structures of
the “Westminster Model” parliamentary democracy, they also responded
to the needs of divided societies by incorporating an array of innovative
approaches to the problem of “deep, pervasive and persistent disagreements,”
including on matters of religion and identity (De Smith 1964). This final
chapter shows how certain constitutional theories and practices are already
compatible, in significant respects, with polycentric political systems.
This collection of essays aims to illuminate the idea of a polycentric society
in a more comprehensive and multidisciplinary fashion than previous works.
We hope that this more philosophically ambitious discussion of polycentric
order will open fruitful and unexpected avenues of research, revitalizing the
study of polycentric order both in the social sciences and the humanities. We
are convinced that only by seriously engaging with and leveraging the ideas
of polycentric systems of social organization and governance can we hope to
build more resilient, tolerant, and prosperous democracies. We leave it up to
the reader to judge whether we have succeeded in contributing, albeit mod-
estly, to this important task.

NOTES

1. We would like to thank the participants in the RESPUBLICA research project

(2021–2023) for providing constructive feedback on an early draft of several of these
chapters. We also wish to extend a special word of thanks to Fundación Ciudadanía y
Valores Proeduca Summa S.L. for generously supporting our work.
2. This definition is broadly consistent with that offered in the introduction to
the volume Governing Complexity: Analyzing and Applying Polycentricity (Thiel,
Blomquist, and Garrick 2019).

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———. 2019. Public Entrepreneurship, Citizenship, and Self-Governance.
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Auerbach, Jerold S. 1984. Justice Without Law? Resolving Disputes Without Lawyers.
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 14 Pablo Paniagua and David Thunder

Bednar, Jenna. 2008. The Robust Federation.Principles of Design: Cambridge

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De Smith, Stanley Alexander. 1964. The New Commonwealth and its Constitutions.
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Hirst, Paul. 2013. From Statism to Pluralism: Democracy, Civil Society and Global
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Kelsen, Hans. 2002. Introduction to the Problems of Legal Theory. Oxford: Clarendon
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Kriesi, Hanspeter, and Alexander H. Trechsel. 2008. The Politics of
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Müller, Julian F. 2019. Political Pluralism, Disagreement and Justice: The Case for
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Muñiz-Fraticelli, Victor M. 2014. The Structure of Pluralism. Oxford: Oxford
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Ostrom, Elinor. 1972. “Metropolitan Reform: Propositions Derived from Two
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———. 2000. “Crowding out Citizenship.” Scandinavian Political Studies 23
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Ostrom, Elinor, Roger B. Parks, and Gordon P. Whitaker. 1973. “Do We Really Want
to Consolidate Urban Police Forces? A Reappraisal of Some Old Assertions.”
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 Introduction 15

Ostrom, Vincent. 1991. The Meaning of American Federalism: Constituting a

Self-Governing Society. San Francisco: ICS Press.
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York: Rowman & Littlefield.
———. 2022. “Elinor Ostrom and Public Health.” Economy and Society 51 (4).
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Scott, James C. 2014. The Art of Not Being Governed: An Anarchist History of
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———. 2012b. Constitutional Fragments: Societal Constitutionalism and
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Thiel, Andreas, William A. Blomquist, and Dustin E. Garrick. 2019. Governing
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Dustin E. Garrick, Andreas Thiel. Cambridge University Press.
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Cambridge University Press.

LQWURGXFWLRQ3DJH 6WDJH'UDIW
LQWURGXFWLRQ3DJH 6WDJH'UDIW
 PART I

The Ethics of Polycentric

Governance

17

&DSDUW3DJH 6WDJH'UDIW
&DSDUW3DJH 6WDJH'UDIW
 Chapter 1

An Ethical Case for Bottom-Up,

Polycentric Governance
in a Complex Society1

David Thunder

Since the early twentieth century, we have seen numerous critiques by

political philosophers, jurists, historians, and political economists of the
Enlightenment ambition to introduce order into the social fabric through the
centralized administrative State. Whereas monistic thinkers writing in the
shadow of Hobbesian and Lockean political theory tend to associate high
levels of social, institutional, and governmental diversity and fragmentation
with instability and disorder, this new crop of pluralist thinkers came to view
complex and multidimensional social orders not only as a potential source of
conflict, but as an essential feature of a well-functioning society and even as
an asset for tackling an infinite variety of social problems not susceptible to
one-size-fits-all solutions. The aim of this chapter is to complement and fur-
ther illuminate existing defenses of social and institutional pluralism by more
explicitly building a case for polycentric governance based on the requisites
of human flourishing in a complex society. The aim of good governance and
sound social coordination, on the approach I defend, is not to monopolize the
functions of social governance, but to cooperate with other relevant actors
in facilitating the expansion of opportunities for human flourishing, while
fostering and protecting the integrity of the complex social infrastructure of
flourishing.
Thomas Hobbes’s Leviathan marked a watershed moment in Western
political thought. Most medieval and some early modern political theories
had sought to uncover a principle of unity consistent with a multilayered,
complex, and differentiated social landscape (e.g., Gierke 2014 and Althusius

19

&E3DJH 6WDJH'UDIW
 20 David Thunder

1995). Much of the political philosophy that comes after Hobbes, by contrast,
tends to view the task of the political philosopher as that of bypassing the
prevailing social infrastructure, with a view to formulating principles and
institutional mechanisms capable of unifying a vast number of individuals
together under the terms of a unique social contract, or a unique shared sys-
tem of government. An enormous amount of effort was devoted to overcom-
ing the fragmented loyalties associated with feudalism, and installing in their
place a single overriding loyalty to the political project of the modern State.
This integrating project was invigorated by the urgency of developing a type
of political belonging that was not splintered by religious warfare.
Given the great harms inflicted by the wars of religion, one can readily
understand why political philosophers undertook to develop a political theory
capable of legitimating a highly integrated, large-scale civil order apt to
secure the conditions of peace and cooperation across large and diverse popu-
lations. Monistically inclined, State-centric theorists generally viewed social
and institutional complexity as a wild beast to be tamed and domesticated by
the State (e.g., Schmitt 2007; Weber 1964; Kelsen 2002; and Rawls 1971).
However, over the course of the twentieth century, especially in its latter
decades, a growing number of political theorists, jurists, and social scientists
came to have second thoughts about this integrating project.
A new crop of thinkers across a variety of fields, including law, history,
political philosophy, institutional economics, and public choice theory, began
to make the case that Statist political theory and social science had grossly
oversimplified the nature of political order and governance, by (i) exaggerat-
ing the power of the State to confer order on a diverse social landscape, and
(ii) underestimating forms of order and governance that were not derived
from the institutions of the State, but were already latent in the fabric of a
complex society.2
This essay could be seen as a contribution to this broad re-valorization
of social and institutional complexity. I propose to tap into a broadly
neo-Aristotelian account of human flourishing along similar lines to Alasdair
MacIntyre’s (1981), to illuminate the benefits of social complexity and dif-
ferentiation for humans’ well-being, and infer from this account some fun-
damental principles of sound social coordination and good governance. My
argument on behalf of social complexity goes further than that of most other
authors insofar as it shows, in an explicit way, how a highly differentiated
social landscape configured by a plurality of independent normative orders
provides an indispensable social infrastructure for free and flourishing
human life, and how this ethical interpretation of complexity might shape our
approach to social coordination and good governance.3
The argument will unfold in six steps: I begin by very briefly reviewing
four well-established strategies pursued by political and legal philosophers,

&E3DJH 6WDJH'UDIW
 An Ethical Case for Bottom-Up, Polycentric Governance in a Complex Society 21

political economists, and historians for defending the necessity and/or value
of social complexity, and suggesting that the fourth of these strategies, a
strictly ethical defense of complexity, remains relatively underdeveloped in
the literature. I then begin to set the foundations for my approach to complex-
ity by explaining what I take to be a touchstone value for a good society: the
“freedom to flourish.” Third, I suggest that the freedom to flourish cannot
be realized outside the context of a social group guided by a shared set of
ends, norms, customs, and narratives, or what I call a “normative order.”
Fourth, I argue that given the complex and multidimensional character of
the human good, a plurality of independent associations, each guided by its
own distinctive and autonomous normative order, is a necessary precondition
for people to enjoy adequate opportunities for personal growth and flourish-
ing. Fifth, I adduce some reasons for pessimism concerning the capacity
of a State equipped with wide-ranging sovereign power to offer reasonable
accommodation to a plurality of distinct normative orders within its territo-
rial jurisdiction. Finally, I round out the argument by suggesting that three
important values for a social arrangement friendly to the freedom to flourish
are voluntarism, proximity of rulers to the ruled, and the bottom-up constitu-
tion of power.

1. PREVAILING ARGUMENTS FOR THE

VALUE AND/OR NECESSITY OF SOCIAL
AND INSTITUTIONAL COMPLEXITY

There are many sophisticated discussions in the social science literature con-
cerning the nature of complex phenomena, complex systems, and complex
social arrangements (see, for example, Gaus 2021; Hayek 1967; Mitchell
2011; and Paniagua 2023). For present purposes, I shall understand a com-
plex society as one that exhibits the following features: (i) it is a collection
of individual persons and groups of persons engaged in purposeful activities
(ii) that interact with each other and respond to each other dynamically over
time (iii) in ways that (intentionally or unintentionally) produce both local
and large-scale societal outcomes and patterns, such as wealth production and
distribution, social norms and attitudes, war and peace, and institutional and
linguistic development, where (iv) distinct groups of individuals are guided
and shaped in their group activities by their own distinctive normative orders
(purposes, projects, values, customs, and rules) and (v) these diverse norma-
tive orders are sufficiently heterogeneous that they cannot all be simultane-
ously embodied within a single human life or within a simple, austere, or
homogeneous social structure.4

&E3DJH 6WDJH'UDIW
 22 David Thunder

Political and moral philosophers have viewed social and institutional

complexity as either valuable or necessary from a number of different per-
spectives. To begin with, social complexity may be viewed as something
to be accepted as an unavoidable outcome of personal freedom. In a large
and diverse society, if you permit people to act on their preferences and
life plans, they will inevitably pursue divergent ends, and generate a wide
range of diversely structured and governed associations. The resulting social
arrangement must be managed rather than suppressed, on this view, either
as a pragmatic concession to human nature, or out of deference to the value
of personal freedom. Either way, the acceptance of complexity is usually
tempered by some normative constraints, whether procedure-oriented prin-
ciples of justice, such as freedom of contract, private property rights, and
non-aggression (Nozick 1974 and Kukathas 2003), or alternatively by a
more demanding, outcome-oriented conception of distributive justice (Rawls
1993 and Christiano 2008).
A second way to view the value of social complexity is as a necessary pre-
condition for diverse identities, projects, and ways of life to thrive and enjoy
some degree of social recognition. Only in a society with a certain minimum
amount of cultural and institutional differentiation is it possible for people
to pursue projects and forms of life they can identify with or find meaning
in. This argument is consistent with William Galston’s eloquent defense of
freedom of association, which couches the value of living a meaningful life
in the language of “expressive liberty” (Galston 2002). Another well-known
version of the argument for accommodating diverse ways of life based on
their importance for people’s sense of meaning and purpose is made by Will
Kymlicka and James Tully (Kymlicka 1995 and Tully 1995) in relation to the
rights of indigenous peoples to have access to a social, political, and legal
framework within which they can coherently orient their lives, even if that
means carving out exemptions to the normal rules and conventions estab-
lished by a territorial government or a liberal constitutional State. Analogous
arguments have been made by the English pluralists in defense of the integrity
of non-State associations, such as churches and guilds (see Cole 2015; Laski
2008; and Figgis 2013).
A third way to view social complexity is as an asset for more efficiently
solving problems of social coordination and meeting citizens’ grassroots
needs in a large and diverse society. The Ostromian school of political
economy, otherwise known as the “Bloomington school,” is perhaps the most
well-known representative of this approach. Elinor and Vincent Ostrom and
their colleagues took the lead in investigating the value of institutional decen-
tralization, diversity, and competition, as ways for different social groups to
evolve tailored solutions, often on a trial-and-error basis, to well-defined
common problems, such as the provision of non-excludable common goods

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 An Ethical Case for Bottom-Up, Polycentric Governance in a Complex Society 23

(“common pool resources”) like policing and water, and the protection of
natural resources from excessive exploitation or pollution (see especially
E. Ostrom 2015). Similar conclusions about the pragmatic value of social
and institutional complexity and the limits of centralized, technocratic gover-
nance as problem-solving tools were reached by institutional historian James
Scott (1999) and journalist-activist Jane Jacobs (1992).
These three arguments in favor of accepting or endorsing complex and
differentiated social structures all have their merits, but they also lack a
crucial lens for grasping and further articulating the value of social complex-
ity, namely, the ways in which a complex and differentiated social order is
necessary in order to service the rounded human flourishing of its partici-
pants. This is an ethical and anthropological argument that is broader than
coordination problems like urban and agrarian planning, the management
of shared resources like water, or the effective coordination of a policing
system. The failure to engage with ethics in a fundamental and rigorous
way leaves most normative defenses of social and institutional complexity
incomplete: while they may justify complexity either as a necessary con-
sequence of freedom, or based on some specific dimension of flourishing,
such as cultural identity, political self-determination, economic efficiency,
or informed decision-making, they do not do so based on a broad account of
human flourishing and its requirements. This chapter, while it cannot hope
to offer a fully developed or comprehensive ethical account of the value of
social and institutional complexity, is intended to offer a preliminary sketch
of what such an account might look like. My hope is that such a sketch might
facilitate a richer and broader cross-disciplinary conversation on the value of
social and institutional complexity and its implications for the governmental
structures of political and economic institutions.

2. THE FREEDOM TO FLOURISH

One of the principal burdens of this chapter is to show that a certain sort of
social complexity is critical to the enterprise of living a flourishing or worth-
while human life, and it can only be preserved by a method of governance and
cooperation that is, in important respects, voluntarist, localist, and bottom-up
in spirit and in operation. In order to reach an accurate assessment of com-
plex social structures and their governmental exigencies, we must begin by
understanding what makes for a functional and attractive social order. My
argument will assume that any functional and attractive social order must be
consistent with the freedom to flourish. Let me explain what I mean by the
freedom to flourish:

&E3DJH 6WDJH'UDIW
 24 David Thunder

Since human beings can only realize worthwhile lives in and through
their own free choices, freedom is a necessary ingredient of human flourish-
ing.5 The value of freedom in a human life is hard to make sense of unless it
enables the freedom-bearer to achieve some aspect of flourishing. Freedom
cut off from the possibility of human flourishing is simply not worth hav-
ing, not inherently desirable or choice-worthy. While one could stipulate a
purely formal definition of freedom as self-determination in accordance with
an agent’s goals, whatever they happen to be, this by itself would not make
a human life worth living, nor could it be a central value or normative pil-
lar of a functional or thriving society. That is because the value of freedom
only becomes intelligible as a value worth pursuing and protecting when its
bearer has the possibility of choosing worthwhile human ends. For example, a
person enjoying perfect liberty to make his or her own choices independently
from external threats or interference could find herself stranded alone on a
desert island, with no way to channel that freedom toward a way of life she
has reason to value, involving basic human goods such as love, friendship,
the pursuit of complex projects, the enjoyment of beauty, and so forth. Or
as Jeremy Waldron has persuasively argued, the homeless man who has the
legal freedom to purchase or rent a home, if deprived of real opportunities to
better his lot, is unlikely to put much stock on his freedom from interference
or domination (Waldron 1991).
Bearing these considerations in mind, in the context of the present argu-
ment, we may stipulate that freedom is the capacity of individuals and groups
to direct their lives toward personal and communal flourishing in ways that
are responsive to their own rationally informed and uncoerced choices and
sense of meaning and purpose.6 I call this conception of freedom the freedom
to flourish, to highlight the fact that individual and collective freedom is
conceived as a genuine personal and social value only insofar as it involves
realistic opportunities to realize flourishing human lives. According to this
account, which is largely consistent with Joseph Raz’s view (Raz 1986), an
agent only enjoys a valuable or choice-worthy form of freedom—the sort
of freedom we have reason to promote and protect—when he or she has the
possibility of choosing objectively valuable human ends, i.e., ends that help
to contribute to, or constitute, a flourishing human life; while the optimal use
of freedom is that which issues in the enjoyment of such ends.7
Freedom is promoted by multiplying opportunities for flourishing. However,
this does not license a centralized State to engage in ambitious forms of social
engineering, for two reasons: first, because any social intervention must be
consistent with the reasonable autonomy of citizens, and must aim at secur-
ing the consent of relevant stakeholders, both through individual assent and
through the assent of representatives of associations; and second, because
once we admit the importance of social, cultural, and institutional pluralism

&E3DJH 6WDJH'UDIW
 An Ethical Case for Bottom-Up, Polycentric Governance in a Complex Society 25

for human flourishing (an argument I make in section 4), this precludes any
government from imposing a single, homogeneous normative order unilater-
ally over the whole social fabric. Paradoxical as it may at first appear, the
best way to expand opportunities for genuine human flourishing is through a
form of political restraint that respects and protects the agency and choices
of individual and corporate actors as much as possible, within the bounds of
widely shared norms of civil and lawful conduct.
Since freedom is worthless if separated from human flourishing, an argu-
ment in defense of human freedom must rely on some conception of human
flourishing, however modest. The conception of human flourishing my
argument relies on is characterized by the following four features: (i) first,
deliberation and choice are critical constitutive ingredients of a flourishing
human life; (ii) second, the pursuit and achievement of human flourishing is
inherently an embodied, developmental, and socially embedded enterprise;
(iii) third, the content of human flourishing is extraordinarily complex or
multifaceted; (iv) and fourth, in spite of this complexity, there is no reason
to rule out the possibility of adjudicating the comparative merits of diverse
human ends, or identifying universal requirements of a flourishing human
life. Let us unpack these features one by one:

(i) Rational Deliberation and Choice as Critical

Ingredients of a Flourishing Life
Rational deliberation and choice are not just instruments for achieving a
flourishing human life, but they are constitutive elements of a flourishing
human life, in the sense that the very act of deliberating and choosing, and
becoming better at deliberating and choosing, is part of what it means to
thrive as a human being. Even if one enjoyed certain physical, intellectual,
spiritual, and emotional dimensions of flourishing, one’s life would be pro-
foundly impoverished to the extent that one acted entirely at the mercy of
fate, or other people’s choices, rather than living a life at least partly informed
by one’s own choices about how to act and live.
Rationality should not be confused with a hubristic conception of the
power of reason, or a denial that life is an adventure full of mystery and sur-
prises. However, as rational agents, we are answerable for our choices, and
if we take our own lives seriously, then we will live responsibly, cultivating
an awareness of the available choice set, and reflecting upon what is at stake
in how we choose to live.8 To forsake rational deliberation about the require-
ments of a good human life is to live recklessly, unmoored from rationally
informed judgment, and risk collapsing into unthinking conformism, incivil-
ity, and callous indifference to the needs of others.

&E3DJH 6WDJH'UDIW
 26 David Thunder

(ii) The Embodied, Developmental, and Social

Character of Flourishing
The notion of “good” or “human flourishing” I will rely upon in this chap-
ter is rooted in an anthropology of embodied dependence, much along the
lines of what Alasdair MacIntyre (1999) lays out in Dependent Rational
Animals. Human beings are embodied and dependent creatures, with a natural
lifespan, and a potential for physical, intellectual, moral, emotional, and spiri-
tual development. Just as a competent medical doctor can identify the differ-
ence between the normal, healthy development of a human organism, and its
pathological development, in a similar way, a psychologist can identify the
difference between someone who is able to function and adapt to their social
environment in more or less healthy ways, without relapsing into childhood
neuroses or destructive addictions. Similarly, a responsible parent can tell the
difference between a child who is becoming a generous, kind, compassion-
ate, and prudent person, and a child who is becoming steadily more selfish,
narcissistic, cruel, or reckless. In each of these cases, there is a potential in the
human being to mature and grow along some dimension of human flourish-
ing, whether physiological, emotional, or intellectual, and that potential may
be either squandered or successfully enlarged and developed.9
Besides being embodied and developmental, the pursuit and realization of
the human good is necessarily socially embedded: that is to say, social groups
provide an inescapable context for our efforts to realize our full human poten-
tial. Living an asocial life, we may be either “gods” or “beasts,” as Aristotle
put it (Politics, 1.2.1253a28-30), but we are not living a fully human life, a
life in which distinctively human capacities, such as the capacity for delibera-
tion, play, and friendship, are given a chance to develop. Human beings thrive
by learning to become better at making choices about how to live and respond
to the world around them; and this is achieved by learning to participate more
competently and responsibly in the life of human communities.10

(iii) The Complexity of Human Flourishing

In general, human beings and human communities cannot reach their full
potential by developing exclusively along a single dimension of flourish-
ing: Individual human beings require a complex package of goods in order
to flourish as human beings, including physical and mental health; emotional
bonding with lovers, family, and friends; the sincere and diligent pursuit of
truth; the enjoyment of art and leisure; and the advancement of some socially
or professionally fruitful project. Human communities typically seek to flour-
ish along many different dimensions, including the possession of sufficient
material resources to cover the community’s vital needs; peace and friendship

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 An Ethical Case for Bottom-Up, Polycentric Governance in a Complex Society 27

among their members; success at advancing associational ends; the develop-

ment of structures and habits of good governance; and equitable distribution
of the community’s material resources and knowledge.
There is another important sense in which human flourishing is immensely
complex: there are many different ways individual human beings may reason-
ably interpret and realize their own flourishing, which may vary according
to their peculiar circumstances, capacities, virtues, resources, choices, and
sense of calling. This is most obvious in the case of the individual: there
are many different legitimate ways to live a flourishing human life, and no
single, narrow path can be prescribed for everyone. Even if we accept that
certain dispositions of character are necessary to live a good human life—for
example, justice, courage, prudence, and temperance—different individuals,
on account of their personal aspirations, latent talents, personal history, or
sense of calling and purpose, may require different conditions in order to
realize their own personal potential. Mutatis mutandis, similar considerations
apply to human communities, whose flourishing inevitably depends on their
unique history, resources, composition, sense of collective purpose, and of
course, the continuing choices of their members in regard to the life of the
community in question.

(iv) Universal Requirements of Human Flourishing

Now, admitting the complex and pluri-dimensional character of the human
good in no way requires us to renounce the possibility of making valid com-
parative judgments between human ends, or identifying general requirements
of a flourishing human life. For the complexity of the human good is not
tantamount to moral relativism: it is constrained by the embodied and psy-
chic nature of the human being, and by the indispensability of certain goods
for a worthwhile and functional human life. If pluralism were absolute or
unconstrained, we could not say that one form of life was superior to another,
or that some choices and lifestyles are abhorrent or ignoble. But the type of
pluralism I am endorsing here need not rule out comparative judgments, and
it is constrained by certain goods without which, I take it that any human life
would be significantly impaired or impoverished.
What might such essential goods be? There are certain basic human capa-
bilities, as Amartya Sen (1999) and Martha Nussbaum (2011) have argued,
without which any human life would be significantly impoverished. On this
list we could include the capacity to breathe, receive nourishment, and main-
tain one’s bodily integrity; the capacity to move relatively freely from place
to place; the capacity to live in a safe home; the capacity to develop lasting
human friendships; the capacity to love and be loved; the capacity to enjoy
a sense of inner peace; the capacity to think clearly about one’s choices and

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projects; the capacity to exercise a significant measure of rational mastery

over one’s life; the capacity to cooperate with one’s peers in shared projects
with worthwhile ends; and the capacity to enjoy recreational and restful
activities.11

3. ASSOCIATIONS AND NORMATIVE ORDERS AS

GUIDING FRAMEWORKS FOR HUMAN FLOURISHING

If we wish to understand the contribution of social complexity and differ-

entiation to human flourishing, we must pay close attention to the structure
and functions of social groups and how they condition the quality and intel-
ligibility of the lives of their participants. In other words, we need to develop
a social ontology of flourishing: an account of the complex social structures,
relationships, and norms through which human beings may realize rounded
and flourishing lives.
Outside of human society, distinctively human capacities, such as the
capacity for rational deliberation, love, and friendship, are not given a chance
to develop. Thus, effective or functional participation in the life of social
groups is a necessity, not a luxury, for human beings. In order to participate
competently or rationally in the life of a social group, one needs to adapt
one’s attitudes and behavior to the goods and purposes around which the
group is organized, the goods and purposes that render the group’s activities
and projects intelligible.
This process of adaptation is made possible by participation in social prac-
tices guided by shared expectations and rules that are either declared or mani-
fested in the life of the group. These shared expectations and rules may be
thought of as a set of public signals or signposts—not just rules, but customs,
shared narratives, and role models as well—that give a sense of meaning
and purpose to associational life and transmit to group members a pattern of
behavior, attitudes, intentions, and dispositions that is appropriate, desirable,
obligatory, inappropriate, undesirable, or prohibited. A cluster of interrelated
and more or less coherent signals of this sort, salient within a particular
social group, is what I shall call a “normative order.” A normative order is the
indispensable cultural and institutional infrastructure without which orderly
and intelligent participation in the life of any human community—whether a
society of saints or a band of thieves—would be impossible.12
Normative orders, be they institutional structures, customs, collective
narratives, or social norms, feed the moral imagination and shape the suite
of opportunities, practical possibilities, and eligible strategies that confront
the members of a social group. Nonetheless, they need not be understood as
deterministic or inherently opposed to personal freedom. It ultimately falls to

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 An Ethical Case for Bottom-Up, Polycentric Governance in a Complex Society 29

each new individual, and each new generation, to make what they will of their
institutional and cultural inheritance. As Barden and Murphy (2010, 21–22)
point out, customs gain their authority precisely from being affirmed, time
and again, by the choices of individuals to treat a certain pattern of behavior
as normative, desirable, or reasonable—and the same could surely be said of
institutional norms.

4. WHY INSTITUTIONAL AND

NORMATIVE DIVERSITY IS NECESSARY
FOR HUMAN FLOURISHING

Given that not all communities and social groups pursue identical goals, we
can reasonably assume that rational cooperation in a large and complex social
space, e.g., the population of a national territory, will require a plurality of
normative orders (including rules, customs, and methods of governance),
corresponding to a plurality of goods and purposes. To live a complete or
well-rounded human life, one must normally participate in more than one
association, precisely because each human association is capable of advanc-
ing a particular, limited dimension of human flourishing, not human flour-
ishing in its totality. The goods served by a monastic settlement are not the
same as the goods served by a university, and the goods of a university are
not the same as the goods of a city, technical school, church, athletic club,
trade association, philanthropic society, volunteering community, dance club,
and so forth.
Of special importance for my argument, the differences between these
diverse normative orders cannot be somehow neatly reconciled within a
single, perfectly coherent normative order. The range of goods pursued
across different associations cannot be adequately pursued without the
institutional and cultural infrastructure of plural, and sometimes conflicting,
normative orders—diverse community narratives, diverse missions, diverse
social norms and expectations, diverse ideals of character and human excel-
lence. That is to say, the human good is too complex and multidimensional
to be tracked exclusively by the normative order of a single community or
association. That would overestimate the cognitive capacities of rulers and
underestimate the degree to which different associations pursue incommen-
surable purposes. I do not believe there has ever been a historical moment
in which a uniform, society-wide scheme of law or normativity has been
able to perfectly harmonize with the reasonable missions, values, and pre-
rogatives of all human associations regulated by it. There is a certain level
of interpretive contestability and rationally irresolvable “stalemate” latent
in any wide-ranging coordination scheme in a large, diverse society.13 For

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these reasons, a single, overarching normative scheme cannot systematically

displace, absorb, or reconcile local normative orders without doing serious
damage to their distinctive goods and purposes.
This does not mean that associations governed by diverse normative
orders cannot communicate or coordinate joint activities, nor does it mean
that diverse normative orders must be tolerated unconditionally, without
reference to wider norms and purposes. Nor does it mean that rule of law is
impossible, or that we are destined to be endlessly at war with our neighbors.
It does mean, however, that the standard modern conception of rule of law,
enforced by a single, irresistible, dominating actor, needs to be replaced by
a more restrained and polycentric conception of rule of law as emergent and
socially contested (even if certain minimum standards are agreed), under the
joint supervision of a plurality of social stakeholders, judicial systems, and
enforcement agencies.

5. THE COLONIZING TENDENCIES

OF THE SOVEREIGN STATE

It is impossible in the context of the present chapter to show, in a definitive

way, that the sovereign State is inconsistent with the complex social ecology
of human flourishing.14 Nevertheless, I will offer some important reasons to
be pessimistic about the capacity of a State that conceives itself as sovereign
over the social order, to accommodate a plurality of independent norma-
tive orders servicing distinct dimensions of the human good. The normative
order of the modern State, particularly in its more consolidated or centralized
forms, has three features that lead it to colonize rival normative orders in such
a way as to undermine their integrity: First, it is a normative order deeply
influenced by the rather top-down, mono-centric social ontology of certain
influential strands of modern liberalism, according to which individuals are
viewed primarily as independent rights-bearers and citizens of a State-based
association, and only secondarily as individuals with allegiances to non-State
groups; second, it claims for itself a supreme or unrivaled form of authority
over the social sphere, which enjoys substantial social recognition (legisla-
tors, judges, and state officials typically view non-state associations as fully
integrated within the normative order of the State, and only valid insofar as
they conform fully to that normative order); and third, it exercises its supreme
authority not merely with moral persuasion or market incentives, but with the
support of non-voluntary taxes on income and resources, and coercive sanc-
tions for non-compliance with its decisions.

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 An Ethical Case for Bottom-Up, Polycentric Governance in a Complex Society 31

Due to the complexity and heterogeneity of the social order, many fiscal
and regulatory interventions of the sovereign State, however well-inten-
tioned, are liable to damage non-State associations’ capacity to promote the
goods they seek to pursue, in at least four ways:15 First, the rules imposed
by the sovereign State may interfere with the rules, norms, and customs an
association recognizes as germane to its mission. Second, the rules imposed
by the sovereign State may have a chilling effect on the birth of new associa-
tions, many of which may fail to institute their preferred normative orders
simply because they anticipate that the normative order they wish to institute
will very likely be suppressed, inhibited, or overridden by that of the State.
Third, the taxing powers of the State enable it to coercively siphon a sub-
stantial quantity of material resources and income away from citizens and
groups toward its own favored projects, leaving many associations with a
heavily reduced capacity to raise funds among their members, with a view to
financing their own distinctive projects. Fourth, the coercive taxing powers
of the State provide it with a powerful tool to impose its own normative order
unilaterally, by introducing regulatory preconditions for the public financing
of projects. In this instance, the rules of the State are not “imposed,” strictly
speaking, but insofar as compliance carries a large payoff funded by tax
contributions and/or public debt, and insofar as the State may easily outbid
many other financiers, associations have a very powerful incentive to adopt
the regulations of the State.16
It should be noted here that I am not suggesting that any attempt by an
independently constituted authority to limit social pluralism or regulate asso-
ciational life is to be ruled out a priori. A society free from regulation would
involve a large amount of oppression and injustice both within and across
associations. Rather, my point is that the logic of sovereign rule, widely
associated with the modern State, puts small- and medium-sized associations
at an enormous disadvantage, both ideologically and institutionally, vis-à-vis
the sovereign regulator. Modern doctrines of political sovereignty (which
crucially conceive the State as possessing a form of authority over the social
landscape that is general-purpose, supreme, exclusionary, and coercive) pro-
vide an ideological pretext for heavy-handed interventions by the State in
the life of associations that exist within its territory, rather than encouraging
the sort of caution and deference that is frequently exercised toward foreign
authorities.

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6. THE ETHICS OF COOPERATION: A

VOLUNTARIST AND BOTTOM-UP APPROACH

So far, I have argued that social and institutional complexity of a certain

sort—namely, the co-presence of a plurality of associations guided by diverse
normative orders not replaceable by a single “uber” order—is a necessary
feature of a society that affords its members meaningful opportunities to live
free and flourishing lives. In addition, I have argued that the modern State,
insofar as it exerts a general-purpose and supreme regulatory authority over
the social order at large, is likely to progressively erode social complexity
by colonizing rival normative orders with its own. But if we are to construct
a civil order that is friendlier than the sovereign State to the social ecology
of flourishing, then we need to start by going back to basics: what sorts of
values and principles should inform a cooperative scheme consistent with the
freedom to flourish and its complex social infrastructure? In the remainder of
this chapter, I outline three fundamental values that might guide social coop-
eration and governance while accommodating the type of social and institu-
tional complexity that could support flourishing persons and communities: (i)
individual and corporate voluntarism; (ii) a preference for proximity of rulers
to ruled; and (iii) bottom-up delegation and control of power and authority.

(i) Individual and Corporate Voluntarism

Freedom goes to the core of who we are as human beings, and it sets us apart
from non-human animals, which act emotionally and instinctually, but not in
accordance with reflexive, rationally informed deliberation and choices. One
crucial aspect of healthy relationships is that they are conducted in such a
manner that each party conserves their freedom to flourish at all times. That
implies that the relationship is initiated, modified, and developed over time in
ways that respect the free will and fundamental interests of each party, to the
extent that this is practicable. A relationship marked by intimidation, domina-
tion, manipulation, or coercion by one party over another, or a relationship
in which one party consistently derives the benefits of the relationship at the
expense of the other, is ethically degrading inasmuch as it does not honor the
freedom to flourish.
If we are committed to honoring the freedom to flourish, this has
implications for how we view the requirements of healthy interpersonal
relations: first, interpersonal dealings must be conducted on a maximally vol-
untarist basis; second, intergroup dealings must be conducted on a maximally
voluntarist basis. The importance of voluntarism in interpersonal dealings is
both intuitively obvious and widely treated by liberal and republican theorists

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 An Ethical Case for Bottom-Up, Polycentric Governance in a Complex Society 33

alike (see, for example, Rawls 1993; Buchanan and Tullock 1999; and Pettit
2012). One of its important implications is that individuals should be free to
exit associations that are not to their pleasing. Given the fundamental role of
interpersonal freedom in a flourishing life, the right of exit, along with legal
protection from injuries to life and limb and tangible threats to the life and
safety of third parties, mark clear limits to freedom of association.17
The importance of voluntarism in inter-group dealings, on the other hand,
seems to be less well understood. The individual necessarily finds meaning
and purpose in the context of group life. Representatives of groups are autho-
rized to represent and serve their members’ identity, interests, and needs. That
function can only be performed adequately if inter-group dealings respect the
consent of groups and their representatives. Where mutuality and consent
in inter-group dealings are jettisoned, or the public standing and claims of
a group in its corporate capacity are treated with disdain, representatives or
trustees of groups lose any effective power to advocate for or defend the vital
interests of the group and its membership. A group’s representatives may be
respected internally, within the group, but if they are disregarded or ignored
outside the group, the group loses its capacity to defend its interests in rela-
tion to the wider society.
Voluntarism should not be understood as a value to be unconditionally
maximized, but a value to be cultivated and protected, in conjunction with
other important social norms, such as rule of law, bodily integrity, and free-
dom of contract. Voluntarism in interpersonal and inter-group dealings is
not an absolute value—clearly, there are circumstances in which the will of
individuals and groups should be controlled or limited; and there are respects
in which social life inevitably conditions individual and corporate freedom,
whether we like it or not. Nevertheless, there is a big difference between a
society that aims to cultivate voluntarism, and one that is either indifferent to,
or hostile to, such an ideal.

(ii) A Preference for Proximity of Rulers to Ruled

In order to facilitate social cooperation, certain individuals and groups of
persons are invested with governmental and rule-making authority. The
institutionalization of governmental and rule-making functions may occur in
the coordination of more or less specialized domains of human activity, say
a chess club, gym, university, school, business, or agricultural cooperative;
or it may occur in the coordination of broader domains of activity, such as
the regulation of taxes and public finances for a city or region. Either way,
anyone involved in the design or reform of governing institutions ought to
be guided by a preference for the proximity of rulers and ruling institutions
to the groups and activities over which they hold sway. Stated somewhat

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differently, governance should, to the extent practicable, be conducted on a

human scale, close up to the activities and persons being governed.
The preference for proximity, which expresses one important aspect of
the principle of subsidiarity,18 may be expressed more precisely by the fol-
lowing principles of institutional design and policymaking: first, epistemic
and cultural proximity: either rulers themselves or their trusted advisors
and administrators should, where practicable, be sufficiently familiar with
the domain of life they are governing, and sufficiently familiar with the
language, priorities, culture, and needs of stakeholders, that they can make
well-informed decisions and tend to the association’s normative order without
subsuming it violently under an alien order. Second, affective proximity: rul-
ers should, whenever possible, have something personally at stake in the
adequacy of their decisions and the success of the activity they are governing.
For example, the leader of a small business, because of his affective bond
with the project and his colleagues, cares about making decisions that lead
his business to thrive, not fail.
Third, spatial proximity: rulers should ideally either reside in or frequent
social and geographic spaces in which the activities they govern unfold. This
enables their stakeholders to interact with them without excessive difficulty,
hold them accountable, share information with them, and gradually build
up bonds of trust and goodwill with them. Epistemic, affective, and spatial
proximity of rulers and ruling institutions to the activities and persons they
are ruling over entails an additional principle of institutional design, namely,
the principle of limited scale of units of governance: the size of independent
governmental units should, whenever possible, be small enough to permit
frequent social interaction and familiarity between rulers and those subject
to their rule.19

(iii) Bottom-Up Delegation and Control of Power

and Authority
In order for a complex, geographically extended political community to be
governed in ways that are adequately adapted to the evolving and hetero-
geneous needs of its plural constituents and stakeholders, it must have an
articulated, multilayered structure that incorporates a mix of local and general
units of governance, some territorial and others non-territorial in character.
The challenge posed by governance under conditions of social complexity is
to delegate governance functions upward to inter-associational bodies with-
out giving up on the advantages of ruler proximity discussed in the previous
section. There is no way to guarantee ruler proximity in all important social
decisions. However, if we aim to make the delegation and control of power
and authority occur, to the extent practicable, from the bottom up rather than

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 An Ethical Case for Bottom-Up, Polycentric Governance in a Complex Society 35

from the top down, we may be able to mitigate some of the harms of remote
governance and preserve an important role for local organs of governance as
shapers of social order.
It is reasonable for associations to submit certain dimensions of their life to
external regulation. But how should this delegation of power be controlled?
The natural presumption, once we grant the importance of associational
integrity and autonomy, is that matters that predominantly touch the life
of the group should be handled by its own internal decision-making and
governmental procedures. One of the decisions that is likely to have a very
substantial impact on the life of the group is the decision to delegate some
aspects of its internal governance to an external governmental organ. It seems
fair to assume that the persons best placed to decide whether such a decision
is appropriate and beneficial for the group is the group itself and its member-
ship, rather than any third party.
Of course, distinguishing between matters that are properly internal to an
association, and matters that are not, is not an entirely straightforward task;
nor is it an easy task to determine how a group may exert control over powers
that have been conditionally transferred to an external government. Similarly,
it is not always easy to determine when the preference for bottom-up delega-
tion and control of power is trumped by some other overriding consideration,
especially gray areas that do not reach the gravity of flagrant human rights
violations or egregious criminality. Nonetheless, I hope these remarks will
suffice to communicate in its essentials the preference for bottom-up del-
egation and control of power and authority, and its normative basis. This
bottom-up vision of cooperation is not consistent with the presence of a
sovereign actor that can exert its authority unilaterally over the whole social
fabric, while it is suggestive of an intensely federated scheme of governance,
in which public authority and power are robustly dispersed across a wide
plurality of territorial and non-territorial actors.20
The main purpose of this chapter has been to make the case, from a
strictly ethical standpoint, for the desirability and indeed indispensability of
a complex and differentiated social order, to advance some reasons for pes-
simism concerning the capacity of more or less centralized sovereign States
to accommodate such complexity, and to gesture toward some elementary
principles of a pluralist, bottom-up ideal of social cooperation more friendly
to the complex and differentiated social ecology of human flourishing. This
is not the place to lay out an account of civil order that satisfies the require-
ments of the freedom to flourish. But I hope the ethical and anthropological
case I have made for affording a high degree of autonomy to local associa-
tions can further illuminate and justify the shared commitment to social and
institutional diversity of neo-Aristotelian virtue theorists, English pluralists
and their successors, political economists, and constitutional pluralists, as

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 36 David Thunder

well as providing some useful ethical orientation to those who must rise to
the challenge of governing, or theorizing governance, under conditions of
social complexity.

NOTES

1. I would like to extend a special thanks to my wife, Olivia Serrano, and numerous
colleagues for feedback and conversations that helped me work through the ideas I
build on in this chapter, in particular Mark Hoipkemier, Julian Müller, Paul Aligica,
Mark Pennington, Michael Zuckert, Kelvin Knight, Maria Cahill, Pilar Zambrano,
Elliot Bulmer, Montserrat Herrero, Alfredo Cruz, Juan Pablo Domínguez, and Pablo
Paniagua. Last but not least, I am grateful for the financial support of Fundación
Ciudadanía y Valores Proeduca Summa S.L
* Research Fellow, Institute for Culture and Society, University of Navarra, Spain.
2. A selection of works from this pluralistically inclined literature will be refer-
enced in section 1, “Prevailing Arguments for the Value and/or Necessity of Social
and Institutional Complexity.”
3. For a fuller statement of the implications of this re-valorization of complexity for
the structure of political and social institutions, see Thunder (2024).
4. This is reminiscent of Berlin’s insistence (1990/1969) that the full panoply of
human goods and values cannot all be fully reconciled or harmonized within a single
way of life.
5. There is no uniquely valid definition of human flourishing. It is a basic concept
that may be understood as interchangeable with full human development, or the full
unfolding of human potential. I will discuss some of its key ingredients shortly.
6. By “rationally informed” choice, I mean one that is responsive to rational con-
siderations such as the pros and cons, costs and benefits, goods and bads of choos-
ing A or B. A choice completely blind to rationality does not enable an agent’s full
and rounded development. What counts as a rationally informed versus uninformed
choice will often be socially contested, but there are plenty of cases upon which there
is broad social agreement.
7. An objectively valuable human end is one that is valuable not merely because
the agent opts for it, but because it embodies some mind-independent dimension of
human flourishing. That the content of objectively valuable ends may be socially
contested does not mean they do not exist or cannot be correctly ascertained by a
wise actor.
8. Even if one opts to live spontaneously or one decides to follow the path marked
out by the traditions of one’s elders, one is implicitly accepting that this is, all things
considered, a good or fruitful way to live.
9. Mill (1991/1859) (partly inspired by Alexander von Humboldt) has a view of
human flourishing that is similar inasmuch as it entails the full unfolding of human
potential.
10. Much more could be said about the socially embedded character of human
flourishing. But I defer this discussion to a consideration, in the next section of the

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 An Ethical Case for Bottom-Up, Polycentric Governance in a Complex Society 37

chapter, of normative orders as action-guiding frameworks inscribed into the social

order.
11. I believe our moral experiences and discourses presuppose that the human good
is, in important respects, not determined exclusively by subjective perceptions, but
also discovered and participated in. But I cannot unpack this argument in detail here.
12. The notion of a normative order is relatively open-ended, in the sense that while
all normative orders are structured by common purposes, some normative orders may
be evil or destructive, and others may only embody a very partial or highly selective
dimension of human excellence.
13. For a much more detailed case against “neat,” all-encompassing social orders
capable of tidying up inter-group conflict with solutions that are fully rationally justi-
fied, cf. Levy 2015 and Muñiz-Fraticelli 2014. The inevitability of inter-group conflict
has much to do with the fact, pointed out by Isaiah Berlin, that diverse human goods
can be in tension with each other or make conflicting moral and political demands.
14. But for one important contribution to this argument, see Scott (1999).
15. Here, I am concerned exclusively with the homogenizing effects of the rule
of a sovereign State. The homogenizing effects of modern capitalist economies are
significant, but they exceed the remit of my argument.
16. Of course, market forces are highly relevant too. But market actors do not have
the advantage of a socially accepted right to collect involuntary taxes and coerce
citizens into compliance with their policies.
17. For a more detailed discussion of the right of exit and some of its potential
difficulties, see Kukathas 2003, chap. 3, “Freedom of Association and Liberty of
Conscience.” I do not share Kukathas’s broader theory of freedom, which has a strong
anti-perfectionist thrust (the “freedom to flourish” does not figure in his theory), but
he offers a useful discussion of the right of exit.
18. I am indebted to Maria Cahill for this notion of a “preference for proximity.”
See Cahill 2021.
19. For one practical application of this principle, see V. Ostrom, Tiebout, and
Warren 1961.
20. A detailed discussion of federalism would take me beyond the remit of this
essay. But for two useful treatments, see Elazar 1987 and V. Ostrom 1991.

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Freedom. Oxford: Oxford University Press.
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———. 1999. Dependent Rational Animals: Why Human Beings Need the Virtues.
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 Chapter 2

Is an Architectonic
Pluralism Possible?

Mark Hoipkemier

Many pluralists would abjure the pursuit of a dominant single political end
or goal, the better to secure freedom for individuals and groups to pursue
their own goals.1 But classical proponents of the common good argue that it
is precisely such a supreme goal that defines the best regime (and possibly
any regime). Although these two camps disagree about whether it is desirable
to pursue an architectonic common good in politics, they agree that doing so
would be incompatible with political pluralism. It is this point of agreement
that I wish to contest, for it rests on a flawed view of the Common Good as
monolithic and all-consuming, a view that misunderstands the basic logic of
common action. A more supple account of the common good does not oblige
us to choose between a politics of plural communities and an architectonic
common good. In any case, the effort to eschew an architectonic common
good is misplaced, since, as I shall argue, politics inevitably enacts some
morally formative vision of life as a whole. If I am right on this point, then
the only viable pluralism is a common good pluralism.
Admittedly, the notion of “common good pluralism” has something para-
doxical about it. “Common good” suggests that all concerned parties share
(and possibly enforce) some single normative vision, while “pluralism”
suggests just the opposite. The tension grows more acute if we suppose, as
I think we should, that a political common project inescapably shapes the
whole range of human affairs. Yet this tension is not an all-or-nothing choice
between sharing everything and sharing nothing. Different moral goals are
“made common” by different groups. The common good of any community
is its flourishing as whatever kind of community it is—family, firm, church,
school, polity, etc. The goal of politics is only one common good among

41

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 42 Mark Hoipkemier

others or, more precisely put, over others—thanks to its unique role in shap-
ing and coordinating them. The project shared by citizens qua citizens always
embodies some vision of the good life in broad outline, but their common
interests do not plausibly extend to every last detail of personal and associa-
tional goods.2 The challenge is to articulate a balanced conception that relates
autonomous, locally shared goods to the world-shaping project of citizens.
This chapter will first explain the meaning of “architectonic” politics and
explain why even convinced pluralists should engage constructively with this
idea: in a word, because it is unavoidable. I will then critique the dominant
interpretation of the common good as “all-encompassing,” which is both
flawed in its own right and unfaithful to Aquinas and Aristotle. Finally, I
will propose an alternative account, drawing on neo-Aristotelian thought, of
citizens’ common project as a morally thick but non-comprehensive public
order. On this view, political order always embodies some overall vision
of the human good, but this shared vision will not permeate all domains to
the same degree, for it corresponds to legitimate public involvement in each
domain. The autonomy and integrity of locally realized common goods are
rightly subject to political scrutiny only insofar as their role in this larger
order comes into question. The approach that I term Aristotelian pluralism
arises from the dual affirmation of freedom for groups to pursue their own
common projects, and also the overarching directive influence that politics
cannot help but exert. The resulting limited-but-architectonic order precludes
a regime of total virtue as much as it does a society free from the encroach-
ment of politics and its goals. These moderated aspirations are a reasonable
price to pay for an approach to the common good that is morally serious,
practicable, and pluralist.

1. AN “ARCHITECTONIC”
PLURALISM: WHAT AND WHY

This chapter is concerned with only one of the various concepts of plural-
ism abroad today. I will focus on “governance pluralism,” which affirms
the legitimate autonomy and value of polycentric, non-State authorities, as
against a monism of the sovereign State.3 I will not engage directly with the
meta-ethical “value pluralism” of Isaiah Berlin, who emphasized the “many
different ends that men may seek and still be fully rational, fully men” (Berlin
2013, 11). Thinkers in the Aristotelian tradition have often denied both sorts,
grounding State supremacy on a unified, objective order of values. But
governance pluralism does not presuppose any position on value pluralism,
either pro or con. A better reason for us to entertain the apparent paradox of

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 Is an Architectonic Pluralism Possible? 43

a common-good polycentrism follows from the inevitably architectonic role

of political institutions.
What does it mean to say that politics, or its normative goal of the Common
Good, is “architectonic”? Aristotle is the fountainhead of such language, and I
will take my cue from his basic usage. At the beginning of the Nicomachean
Ethics, Aristotle notes that in various domains of life, there is a hierarchy of
practices, in which subordinate pursuits are controlled by and oriented to an
“architectonic” (architectonike) (Aristotle 1985, NE 1094a15) master prac-
tice and its goals. The term obviously calls to mind buildings and construc-
tion, in which the master builder oversees other workers, but Aristotle’s own
example is that saddle makers and cavalrymen are subordinate to the army’s
general and the goal of military victory. He then observes that political sci-
ence seems to be the most “architectonic” of all, because it rules over all other
master practices (Aristotle 1985, NE 1094a30). How so? Politics can permit
or outlaw them; it makes use of their results for its own ends; it takes prior-
ity in cases of conflict; and so on. Inasmuch as politics sits atop all human
pursuits—all the parts of a whole life—Aristotle concludes that the ultimate
aim of this most architectonic of practices is the good life overall, and even
“the good for man.”
To fix terms, I will say that politics has an architectonic aspect to the extent
that it exhibits two core features:

a. Breadth: it embodies or enacts some relatively complete vision of the

good life as a whole, somewhat as an architect designs a whole building.
b. Dominance: it directs or orders persons and practices toward this broad
end, somewhat as an architect directs other workers.

By design, these definitions contain some vague and troublesome terms,

which I will not try to specify at this preliminary stage. What level of detail
is implied by “relatively complete”? How much control goes into “directs or
orders”? Within the family of architectonic doctrines, there are different pos-
sible answers to such questions, which are not equally consistent with poly-
centrism. I should note that my own answers may depart from Aristotle’s, as
some scholars read him as favoring an all-encompassing hierarchy overseen
by a single agent (Lane 2020), whereas I interpret an architectonic order as
a more limited, directive political order in which power and knowledge are
fragmented.
One large goal of this chapter is to show the proponents of an architec-
tonic common good why they should embrace an interpretation of their
ideal that is consistent with pluralism. “Architectonic” is not equivalent to
“all-encompassing”: the architect does not build the whole house, even if she
controls the overall design and oversees other workers to some degree. She

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is in charge of the ruling pattern, but it is the craftsmen who work out the
details, each in their own sphere. Somewhat as a competent architect cannot
not have an overall plan, the political order cannot help but embody some
society-spanning ideals such as freedom or virtue, but these may entail more
or (preferably) less involvement in the towns, workplaces, schools, or fami-
lies where the principles are lived out.
I should also like to address convinced social and political pluralists, some
of whom may believe they are better off prescinding from any notion of
architectonic politics. After all, the pluralists’ case appears simpler if we set
this classical notion aside, instead construing politics in terms of, say, rules
for limited areas of human conduct. But suppose it is the case that, as Alasdair
MacIntyre puts it, “every political and social order embodies and gives
expression to an ordering of different human goods and therefore also . . .
to some particular conception of the human good” (MacIntyre 1998, 247).
For many proponents of classical views, that politics is architectonic is not a
moral desideratum, but an unavoidable fact. The basic idea is that all func-
tioning polities will find themselves, willy-nilly, enacting some “relatively
complete” vision of human life and the good society. If this is true, then even
the most die-hard pluralist should accept the broad-scope claims of “architec-
tonic politics” for the sake of seeing the world as it really is.
Could it be true that politics is inescapably architectonic? Aristotle arrives
at this view in an empirical manner. He first surveys the polities of the
Greek-speaking world and finds that what people call “cities” or “States” are
only those organized groups that address a full range of human activities: not
only mutual defense and rules of just conduct, but also patriotism and living
together in “affection,” communal practices of marriage and religion, and a
shared concern for moral character. He concludes that a really existing city
is a community of free citizens that is self-sufficient in respect to living well.
On this view, political interest in a “complete” human life is not first a philo-
sophical abstraction or an ethical recommendation; it is what actual cities
actually share.
The obvious rejoinder to Aristotle’s inductive line of reasoning is that cit-
ies or States are not necessarily like that. Have not liberal polities abandoned
the all-encompassing search for flourishing in favor of freedom and limited
government? Modern debate about the political common good concerns the
legitimate scope of law and political action at least as much as their norma-
tive content. It seems perfectly plausible—or even obviously right—to say
that political communities do and should narrow the scope of their coercive
or directive action to less than the whole of human affairs. Yet it is hardly fair
to criticize Aristotle’s empirically minded argument by appealing to norma-
tive ideals rather than data. What matters most is not abstract theory, but the

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 Is an Architectonic Pluralism Possible? 45

principles that are embodied in actual political institutions and practices. Here
are three factors speaking to the relevance of the always-architectonic view:

1. The size of modern government. Putatively “limited” States apply more

resources to more issue domains than even the most feverishly totali-
tarian ancient theorist could have imagined: health insurance, welfare,
energy, science, transportation, climate, space travel, housing, and so
on indefinitely.
2. Questions of distribution. Many ordinary political decisions cannot be
made without presuming some broad idea of what it is best for humans
to do and to be. Who deserves tax breaks or burdens, legal impediments
or cultural prestige? The answers to such garden-variety distributive
questions always refer, at least implicitly, to the relative value of citi-
zens and the proper goals of their shared project.
3. The reach of the law. The law in its many guises has something to
say about virtually every domain of human life, from religion to work
to leisure, from birth to child rearing to death. Underwriting the legal
freedom of citizens in a given domain is itself a form of value judgment.

Michael Ignatieff puts the overall point this way: “for all the apparent
relativism of liberal society—our interminable debate about what the good
in politics consists in—in practice a shared good is administered in our name
by the welfare bureaucracies of the modern State” (Ignatieff 1985, 136).
Whatever rank ordering is publicly established de facto, whether by custom
or overt political action, will imply or presuppose some vision of the good
life, in effect where not by design, in broad outline where not in detail. If so,
it would be best not to ignore the fact.
I will not even pretend to have convinced those pluralists who are deeply
skeptical of the rightful “completeness” of political community. Yet even the
classical liberal who denies that political practice should be architectonic can
admit that many States are so, in fact, to a great degree. At least as a tactical
matter, then, polycentrists of all stripes could benefit from taking architec-
tonic politics seriously even if they aspire to make the idea less applicable
to the real world. The realities to which the always-architectonic position
refers are very much with us in ordinary political practice, and cannot be
easily wished away. But they are not necessarily inimical to pluralism—or
so I shall argue.

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2. THE PROBLEM OF THE

ALL-ENCOMPASSING COMMON GOOD

There are different ways to construe “architectonic” politics, and in this sec-
tion I will explain and critique today’s most prominent interpretation. We may
call this the “all-encompassing” or “inclusivist” account of the common good.
On this view, which predominates among Roman Catholics, the Common
Good without qualifiers names the supreme goal of law and politics, perhaps
indeed of all moral action. As the motto of a Catholic business school has it,
“All for the common good.” In the words of Pope Leo XII, “after God, [the
common good] is the first and last law in society . . . ” (Pope Leo XIII 1892,
sec. 19). This ideal can occupy a place of incontestable supremacy because it
maximally subsumes every other rival good or moral standard—the goods of
individuals and groups, the goods of economics or culture, and so forth. The
full realization of this comprehensive good would entail that every person and
every aspect of society (or the globe, even the universe) be completely excel-
lent or flourishing to the fullest extent. As a Catholic magisterial document
puts it, the common good in this maximal sense is “the good of all people
and of the whole person” (Vatican 2006, 265). There is an eschatological
dimension to this lofty goal, but here below it can serve as a regulative ideal
buttressing the supremacy and authority of politics and law.
Plainly, the all-encompassing account of the common good is not meant
to settle vexed political questions, but rather to provide a shared standard
beyond critique, which all reasonable persons can, or indeed already do,
affirm. The politics of this common good would be maximally “architec-
tonic,” in the sense outlined above, inasmuch as it would pursue an unquali-
fiedly complete vision of the good life that directs or orients society in the
large as well as sub-political groups and individual persons. These enormous
aspirations render the all-encompassing account untenable.

2.1 Three Axioms and an Objection

To see why, we must first say a bit more clearly what the all-encompassing
common good really requires or implies, beyond majestic supremacy.
Consider three relatively uncontroversial (among Aristotelians) axioms con-
cerning the logic of common goods, which I draw from prominent Thomists
with no special pluralist leanings:

Axiom 1) A good or goal is “common” to various persons insofar as it is an

object of their common action/striving/attention. Every common good is the
good of some identifiable community and its members (Utz 1958).4

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 Is an Architectonic Pluralism Possible? 47

Illustration: “Promoting great art” may be a generally valuable thing, but it will
not be a common good except insofar as persons are acting together so as to
further or achieve that goal, e.g., by creating an art museum.

Axiom 2) The common good of a given community is its overall excellence as a

specific form of common action, defined by its characteristic shared work and
the goals of its members qua members (De Koninck 1943).5

Illustration: The common good for the museum qua community is primarily to
be an excellent art museum (by promoting and preserving fine art). One would
not fault it for failing to solve broad social problems such as prejudice or pov-
erty, which it has neither the ability nor the duty to do.

Axiom 3) A community enjoys rightful authority over the shared actions and
relationships that are constitutive of its common good (Simon 1962).6

Illustration: The art museum rightfully sets its own employee policies and
curates its own exhibitions, but it has no say over the home lives of its workers
nor the personal projects of its artists.

With these axioms in mind, we can say more precisely what the all-inclusive
account of the common good amounts to. Axiom 1 implies that comprehen-
sive human flourishing is the characteristic shared goal of the political com-
munity, i.e., of citizens qua citizens. Axiom 2 implies that citizens can and
should realize this goal by their common action as members of the political
community. Axiom 3 implies that the political community has rightful author-
ity, in some sense or other, over all the aspects of human life in their detail.
Pluralists would not be wrong to see little room here for self-governing
groups to pursue their own goods in significant independence from political
projects. To be fair, the all-encompassing view might be implemented in a
very hands-off way, but in principle it implies an expansive scope for citizen-
ship and government, along the lines of ancient Sparta. On this model, every
ostensibly private concern—e.g., within a family, a school, or an individual’s
own life—is at root a political matter that could, if necessary, be rightfully
made a focus of citizens’ attention (and presumably intervention). And who
would willingly sacrifice all private freedoms and actions to the privilege of
collective self-rule?

2.2. Two Unsuccessful Refinements: Aggregation and

Changing the Subject
Sensitive to the dangers of conceding everything to the State, defenders of the
all-encompassing common good have refined the approach in two intriguing

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 48 Mark Hoipkemier

but ultimately unsuccessful ways. The first is to redefine the supreme com-
mon goal as partially an aggregate of non-political goods, which are not the
concern of citizens to realize. This is a crucial step for the all-encompassing
account, because citizens qua citizens do not and cannot share all the essential
goods of a flourishing life as their characteristic shared goals. To act as a par-
ent, or a child, or a friend, is not to act as a citizen. But how could the politi-
cal common good claim to be unqualifiedly supreme, if it did not include or
encompass these relational goods? On this “aggregative” interpretation, the
common good includes “the non-social (and even social but non-political)
goods of each and every member of the political community” (Murphy 2005,
152). In concrete terms, as Matthew Wright puts it, “the political common
good must be in part the ‘good of friendship’ + ‘good of family’ + ‘good of
church’ + ‘good of civil associations’” (Wright 2019, 80).7
This leads to a second modification, which reframes the social setting of
the all-embracing common good. Every common good is the good of some
identifiable community, but that need not be the coercive, bureaucratic State.
Even the friends of the modern State will agree that it is not well-suited to real-
izing an all-encompassing common good, and that it would likely abuse the
power that such a goal would entail. Wright concurs with Jacques Maritain in
shifting the locus of the all-encompassing common good toward “the politi-
cal community.” As Maritain puts it, “the political society is the whole. The
State is a part—the topmost part. . . . which specializes in the interests of the
whole” (Maritain 1951, 10, 12). The State is a legal-governmental entity that
registers citizens and passes laws, while the political community is something
much broader, which includes all the social or cultural elements of common
life falling outside the legitimate sphere of government. This distinction of
social subjects also permits a distinction of common goods: a limited, “spe-
cifically political” common good that is “interdefined with the responsibili-
ties of state government and law” (Finnis 1998, sec. VI), as opposed to the
Common Good in the supreme and all-encompassing sense, which is the full
flourishing of the broader body politic and its members. As Wright puts it,
“political community qua ultimate is not specifically political, and qua spe-
cifically political is not ultimate” (Wright 2019, 83).
In my judgment, these refinements do make the common good more prac-
tically attractive, but at the price of theoretical incoherence. The problem
with the second proposal is that the “body politic” does not look like a single
social unit, but rather like many complex overlapping communities. By what
distinctive name would its members be called, and what would bring them
together? If the supreme unity-maker is the State, then the distinctiveness
of the body politic as a social entity unto itself, with its own characteris-
tic activities and goals, vanishes. Other less-political rivals (e.g., “French
culture,” “Judeo-Christian values,” etc.) do not seem sufficiently detailed,

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 Is an Architectonic Pluralism Possible? 49

agreed-upon, and binding to hold together a social order apart from the instru-
mentalities of law and government. The second refinement, then, attempts
to attribute a single, all-embracing common good without identifying some
distinct social order of which it is the goal.
The first refinement, aggregation, directly contradicts the basic logic of
common goods. For some good to be a common good at all, it should be the
defining shared goal of some community, whose members have the right and
the ability to realize that goal in acting together. But the very point of the
aggregative account is that the political common good should be partially
defined by goals that cannot be realized by citizens as such, but only by
friends, family members, business colleagues, etc. “The common good of
community X” is meant to serve the life and decisions of that community
by delineating the goals that its members can and should achieve together.
To define citizens’ flourishing by goods they do not share and cannot realize
together is to abandon the logical structure of the common good in favor of a
vague and impractical moralizing.

2.3 Sketching an Explanation

Before outlining a more promising approach to architectonic politics, I pause
to suggest an explanation for this problematic conflation of the whole human
good with the political common good. Where might it originate? To my
mind, this conflation runs together the distinct visions of the two eponymous
giants of the Thomistic-Aristotelian tradition. Aristotle and Aquinas generally
agree about the basic logic of the common good, but they differ over what
the central case of that good is, and who shares it as a common goal (see
Hoipkemier 2016). Treating their accounts as equivalent leads to the quanda-
ries highlighted above.
Aristotle originated the claim that the political community is the crucial
locus of the common good. Yet he did not equate the standard of the com-
mon good with human virtue or overall flourishing. Rather, for Aristotle the
common good was a matter of political justice, of giving citizens their due
as citizens. I have developed this interpretation at greater length elsewhere
(Hoipkemier 2018), but here are two suggestive bits of evidence: 1) Aristotle
never mentions the term common good in his treatment of happiness or
the best regime; 2) his mixed regime of polity has a gravely deficient view
of human flourishing, yet it is said to be “in the common good” without
qualification.
Thomas Aquinas, on the other hand, clearly does regard “the common
good” in the central sense as encompassing all human good, but he can
plausibly define the term in this way only because he has a different commu-
nity’s good in mind. He is not primarily a theorist of human social order as

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such, but of divine order. For Aquinas, the paradigmatic common good is the
flourishing of the whole cosmos as ruled by God’s eternal law and oriented
to the divine glory (Verpaalen 1954). This providential order coordinates all
things without exception, and it can move individuals “from the inside,” as
it were, in a way that human institutions cannot. Granting his premises, the
requirements and rewards of this cosmic “community” could very plausi-
bly include every last human act, relation, and value. In this widest of all
contexts, Aquinas can write without blushing that “when a man wills some
particular good, his act of willing is upright only if it refers that good to the
common good as its end” (Aquinas 1947 I–II 19.10). He is considerably more
circumspect when he turns to human communities and their law: “man is not
ordained to the body politic, according to all that he is and has” (Aquinas
1947 I–II 21.4, ad 3).
Whatever one may think of these accounts on the whole, it is clear that both
of them accord well with the logic of the common good. Both theories posit a
distinct kind of community that plausibly has both the rightful authority and
the factual ability to realize its distinctive shared end through common action.
The problem arises when one grafts the comprehensive scope of Aquinas’s
cosmic common good onto Aristotle’s political setting. This conflation
ascribes a goal to the political community that is clearly beyond its power or
its rightful jurisdiction. No human membership could have either the capac-
ity or the right to claim the fullness of human flourishing as its shared task
or goal. Even if one considers entire civilizations rather than legally defined
polities, one would still hesitate to say that the full flourishing of individuals
or groups were an act of persons qua members of that society, still less of the
society as such.
The lesson to be drawn, in my view, is that only a cosmic or theological
community could count as that single form of common action oriented to the
human good in its fullness. In this sense, one need not reject the classical
idea that human flourishing as a whole is a common good, i.e., is the goal of
some identifiable community that can claim unqualified moral supremacy.
Conversely, this cosmic standard is not the appropriate goal for guiding
and appraising the common action of citizens. What should citizens invoke
instead, when they deliberate about their common good?

3. TOWARDS AN ARCHITECTONIC ORDER

My critique has exposed serious flaws in the “all-encompassing” vision of

the common good, and in attempts to rehabilitate it. If politics is not morally
unlimited, then it is limited in some way. Whatever its limited goals turn out
to be, they are what citizens should look to when acting together. Having

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 Is an Architectonic Pluralism Possible? 51

come so far, the pluralist’s next step might be to restrict the moral remit of
politics to, say, underwriting the law of freedom, or protecting natural rights,
or to some other particular domain of value. In my view, such a sequel
would throw out the baby with the bathwater, because it ignores the fact of
architectonic politics, with which I opened this essay. All regimes embody a
relatively complete vision of the human good, and our shared ideals ought to
be comparable in scope to our shared actions. The challenge for Aristotelian
pluralism is to fashion a positive account of the political common good that
is both limited and architectonic. To show why this is not an oxymoron, I will
first discuss the sense in which politics should be limited, and then sketch a
broader “order model” of architectonic politics that makes room for gover-
nance pluralism.

3.1 Two Kinds of Limits

There is more than one way for politics to be morally limited. Natural law
theorist John Finnis has claimed that the “specifically political” common
good is limited in two important senses (Finnis 1998). Firstly, it is concerned
only with the virtues of justice and peace, leaving the rest of the virtues to
individuals or families. Secondly, politics and law demand only “external
compliance,” not the full interior realization of virtue. Notice that these are
quite different kinds of limits, which we might liken to two different dimen-
sions of a map: how much territory it encompasses versus how much detail it
shows. When Finnis excludes essential virtues like moderation or piety from
citizens’ shared concern, he asserts a limit as to breadth/scope, like a map of
only one province rather than a whole country. On the other hand, by restrict-
ing political demands to “external compliance,” he asserts a limit as to depth
or detail, like a map that shows only large cities or main roads. In combining
the two types of limit, Finnis denies to politics both the overall plan of the
good life and the virtuous actions at its heart. But why would anyone choose
a map that lacks both scope and detail?
The notion that the public good is severely limited in breadth/scope is
both implausible in itself and incompatible with an architectonic politics.
Recall that any regime is architectonic to the extent that it orders persons or
practices toward some “relatively complete” vision of the good life This need
not imply a bureaucrat in every bedroom, but it does entail that the norma-
tive order of the regime affects most or all domains of life. An architectonic
“political map” covers the whole territory of human concern, more or less.
If Finnis could make good on the claim that citizens focus only on a limited
set of virtues or pursuits, he would rule out any such broad vision. But the
attempt is bound to fail.

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In addition to the earlier empirical arguments about the reach of modern

government, we may add the specifically Thomistic objections of Michael
Pakaluk (2001). He points out that justice concerns all human relations and
draws on the full complement of other virtues, so Finnis’s restriction of
politics to “justice and peace” does not meaningfully restrict its moral scope.
Furthermore, the “complete” political community is involved in the very
constitution of “incomplete” communities, such as families, schools, or firms.
Assigning virtues to a subordinate community such as the family does not
fully remove them from political influence; it only makes that influence less
direct. When Tocqueville noted that Americans were democrats not only in
government, but also in family, in industry, and in literature, he was observ-
ing the pervasive reach of ruling principles beyond the narrowly political. It
is realism, not anachronism, to recognize that basic political laws and values
shape and color the indefinitely numerous areas of life under the regime’s
oversight. Stephen Macedo, himself no Aristotelian, has rightly observed this
fulsome breadth of influence under liberalism quite as much as in premodern
regimes: “Basic liberal principles . . . wash across and seep into the whole of
our lives, not determining all our choices but limiting them all and structuring
and conditioning our lives as a whole” (Macedo 1990, 54).
On the other hand, the depth and detail of citizens’ shared “political map”
can vary considerably, and this variety is perfectly compatible with the
“always-architectonic” thesis. In real-world politics, modes of favoring domi-
nant principles range from detailed control (e.g., taxing and shaming cigarette
smokers) to abstract rules of conduct (e.g., contract procedures) to untram-
meled freedom of choice (e.g., over one’s religion). Regimes like Sparta or
Islamist States favor a centralized moralism, with a full set of enforceable
prescriptions for life, no assembly required. But other regimes promote their
broad vision through hands-off, decentralized governance, in the style of
ancient Athens or modern liberal States. They define a broad order of authori-
tative values, then leave the details to persons on the scene. One can make
sufficient room for pluralism by applying this second sort of normative limit,
which leaves open most key political questions (aside from scope): what
visions or values citizens endorse and how best to advance them together.

4. AN ORDER MODEL

Relying on limits as to normative depth or detail, I will sketch an alterna-

tive to the all-encompassing political common good, which I call an “order
model.” I find this perspective echoed, though not fully elaborated, in the
work of influential neo-Aristotelians such as Yves Simon and Alasdair
Macintyre.8 The distinctive claim of their minority report is that citizens aim

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primarily at a just public order among communities and their goods, and not
at the full flourishing of every component of society. Politics wields coercive
and directive authority to rank, or more generally to order, the whole gamut
of human goods, but many or most of these are not the business of citizens
qua citizens to realize directly. As MacIntyre puts it, the common endeavor
of any political community is “an ordering of goods, goods to be achieved by
excellence within specific and systematic forms of activity, integrated into an
overall rank-order by the political activity of those particular citizens.” The
internal ends of a business or a school are subject to political scrutiny (only)
insofar as their role in the larger order is in question. What citizens rightly
pursue is a civil tapestry that weaves many forms of solidarity with goods of
their own into a larger pattern of justice and the good life. A model based on
public order is surely not the only way to reconcile the architectonic and the
pluralistic character of politics, but I think the account is both descriptively
plausible and normatively attractive.
At the core of this model is the notion of politics as “a type of practice
through which other practices are ordered” (MacIntyre 1998, 241). This
phrase of MacIntyre’s implies a multileveled hierarchy of practices, with
politics at the top. By the term practice, he means “any coherent and complex
form of socially established cooperative human activity” (MacIntyre 1981,
187) built around its own internally shared standards and common goods
of excellence. The genres of practice (sports, liturgical prayer, automobile
manufacturing, painting, etc.) are as various as their institutional settings
(families, teams, clubs, firms, churches, etc.). Politics is like other practices in
that it has its own proper principles, values, and skills (patriotism, canvassing
for votes). The activities and standards of the various practices are relatively
autonomous and self-contained, but not entirely. Politics is unlike all other
practices, in that its goal is precisely to consider the worth and needs of other
practices, and to forge an order between them. Sub-political practices depend
on one another and on politics to supply what they lack—not only material
resources, but also a legal setting, and a guiding framework of values. For
example, an orchestra depends on a whole infrastructure of music appreciation
and public support in dealing with external actors, and its own internal orga-
nization will draw on political ideas such as equality or anti-discrimination
to settle questions left open by the demands of great music. This exposure to
outside influence need not corrupt the orchestra or its central musical mission,
nor render it an arm of the State. Indeed, appropriate support is essential for
the orchestra to thrive as an autonomous but dependent association.
On the always-architectonic view, it is the distinctive task of politics to
establish such order between these domains as will frame a complete way of
life. Which persons or practices should enjoy more or less of what the public

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has to distribute, and at which points in the calendar or life course? In a crisis,
which concerns are essential and which peripheral? What core values must
all citizens enact in all their doings, and which are left to their free decision?
In giving answers to such broad questions, public order will both mold and
reposition virtually every domain of human concern. Consider the analogy of
an individual and her life. She must find a place for work, family, personal
wellness, charity, civic duty, etc, within the framework of her whole life, and
the way she pursues each domain will reflect in some way the predominant
values driving her decisions about the larger order.
The central tension of this multilayered model of society lies in its
attempted combination of hierarchy and autonomy. Politics occupies a ruling
position over other goods and practices, but it does not subsume them either
epistemologically (they remain separate domains of knowledge) or teleologi-
cally (private goals are not reducible to political goals, nor vice versa). Any
practice is pursued in large measure for its own sake, and its activities and
accomplishments can only be fully enjoyed, understood, and achieved by its
own members and its own masters. For instance, the primary goal and social
contribution of an art museum is to be a great museum; it serves persons qua
art lovers, not qua practitioners of politics. Art or science that forsakes its
own proper ends for overtly political goals will inevitably degenerate into
propaganda and manipulation.
On the other hand, the various discrete practices are inevitably susceptible
to political influence or coloring. We should not demand, nor even aspire to,
an art or science totally devoid of political import (great art can be both an
effect and a cause of political action—e.g., Picasso’s Guernica or Goya’s 3rd
of May 1808—though political relevance is not the reason these paintings are
great). Whence this pervasive influence, and why affirm it? To survive, the
political community must maintain something close to Weber’s “monopoly
on violence,” which gives citizens the collective ability to impart their norma-
tive vision on lower-level social units. Yet there is more at work than superior
force. The point of the classical distinction between “incomplete” and “com-
plete” communities is just this asymmetry. Families or firms are “incomplete”
precisely because they need the larger political community even to flourish
as the sort of associations that they are. Business corporations depend pro-
foundly on their legal structure to become the massive human enterprises
they have become; State help is essential, not incidental to them (Ciepley
2013). Likewise, stable families rely on legal and cultural norms, and raising
children requires both more inputs and broader horizons than immediate kin
can sustain. The practice of politics at its best infiltrates other domains of life
so as to enhance and enrich them. Of course, the same prerogative can serve
as a pretext for violation and invasion, but the possibility of abuse does not

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absolve citizens of their broad ordering task, especially if this ordering will
go on whether they like it or not.
A non-totalitarian public order can be said to embody a “relatively-complete
vision of the good life” on two conditions. First, we must construe “order” in
a broader sense than usual. It involves more than the external coordination of
the jurist’s “law and order,” which emphasizes compliance, not inner assent.
An architectonic order also aims to configure society “from the inside,” by
proposing its own scale of ends and values as worthy of the allegiance of per-
sons and groups in their own conduct. Major violations of those values even
in private settings (like racial discrimination in the workplace) can be seen
as violations of public order. Second, we must recognize that an authorita-
tive ordering of goods and values sets the moral tone of the regime far more
decisively than does the nitty-gritty of implementation. As MacIntyre notes,
“What discriminates one kind of character from another is how goods are
rank ordered by the agent, and [. . .] each rank ordering of goods embod-
ies some conception of what the good life for human beings is” (MacIntyre
2006, 36). For a social order as for an individual, to consistently value goods
on one or another scale is to embody a certain vision of the good. A public
order of culture and institutions will offer some scale of goods, and so it will
embody such a vision, even when it does not police the details. I now consider
objections against the whole project of architectonic pluralism, whether in my
“order model” or in other possible redactions.

4.1. Three Rejoinders: Feasibility, Limits,

and Subsidiarity
Feasibility: Given its breadth, the task I am attributing to citizens’ common
action may seem an impossible burden. If no one could ever enjoy sufficient
knowledge or consensus to carry it out in a just or reasonable way, then mis-
use is inevitable, and the whole enterprise is misconceived. Here the “plu-
ralism” of the model comes to the rescue, at least in part. The architectonic
pluralist’s “political map” shows the whole human terrain only in outline.
MacIntyre comments that citizens need (only) “sufficient agreement about
goods and about their rank ordering to provide shared standards for ratio-
nal deliberation” (MacIntyre 2006, 39). An architectonic order is hostile to
knowledge compartmentalization. Politics may be a game with its own rules,
but playing the game well requires familiarity with the other practices under
its sway. Yet citizens at large will not know the details of every specialized
field in their purview, which would indeed be impracticable. How much do
they need to know? A reasonable minimum bar might be: sufficient under-
standing to evaluate non-political practices. (As Aristotle notes in his defense
of democracy [1984, 1282a], broadly educated persons can judge accurately

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in many fields—such as art, artisanship, cooking, farming, etc.—where they

are not themselves skilled performers.) One need not be a technical expert in
a field like finance or farming, much less a full-time professional, to under-
stand its needs and contributions with respect to a larger order. Contrariwise,
at least some practitioners in those areas need to attend to the place of their
field within the larger order. The requisite degrees of mutual knowledge and
involvement will vary, of course: citizens at large need little, official regula-
tors rather more.
An architectonic pluralism will also fail if it cannot manage political
conflict, especially concerning the jurisdictional decisions that structure the
entire scheme. The question of where local common projects are immune
from, or susceptible to, political scrutiny is itself a vexed issue. Does the
hierarchically superior role of political order and its ends entail that all such
decisions come down from the top, from the State and its citizens? Yes and
no. For anyone to assert the proper scope or the limits of some association
is to make a claim about rightful public order. Hence boundary-drawing and
jurisdictional questions are to be resolved from the public perspective of
citizens, as custodians of the widest and most authoritative normative order.
But as just mentioned, citizens (or State officials acting in their name) should
freely acknowledge the limited scope of public competence and principles.
Society-spanning values by no means exhaust the relevant goods at stake
in particular groups or pursuits. Reasonable solutions may depend on goals
and arguments accessible only within a given practice, and one cannot say
in advance whose interpretation ought to trump the others. The paradox and
promise of an architectonic pluralism would be to keep both sets of reasons,
both common goods, in view. In practice, like any other form of polycen-
trism, a feasible order model would favor enhanced juridical or social power
for associations, to keep their concerns and voices politically viable.
Limits: If politics as an ordering practice is genuinely architectonic in the
sense of articulating dominant principles that are meant to wash over or infil-
trate all of society, one might reasonably doubt that it is also meaningfully
limited. As Pakaluk points out, the legitimate intentions of rulers or lawgivers
go beyond the letter of the law (Pakaluk 2001, 73–74). For instance, public
officials who prudently refrain from micromanaging the energy sector might
legitimately hope that solar-power firms will be inventive and efficient as
well as egalitarian and environmentally friendly, and will presumably regu-
late with such ends in mind. Does this not mean that the ostensibly private
success of an innovative energy firms is a concern of citizens at large, albeit
in an indirect way? If so, the same argument could be extended to the indefi-
nitely many other domains under political oversight, thus razing all the limits
to the political common good and returning us to the all-encompassing model.

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This objection does not account for the pluralist implications of focusing
on common action. The limits of common action delineate the limits of com-
mon concern, and the solar firms themselves are not cases of public action.
In the strict sense, citizens’ shared concern extends only to the soundness of
their own regulations, subsidies, and so forth, which do not guarantee the
success of any private firm. Public support is indeed designed to encourage
the industry, so citizens do share, in some remote degree, in its flourishing. In
my recurrent analogy, the political map does show the whole territory. Still,
the full flourishing of a firm or industry would not be a matter of the politi-
cal common good in the strict sense, unless it were transformed into a public
agency, becoming a branch or tool of citizens’ common action instead of a
separate practice in its own right.
But if this is (normatively) possible, what is to prevent an aggressive polity
from nationalizing everything? In general, the nature of the goods in question
militates against putting too many things in common. MacIntyre emphasizes
that key goods (such as deep innovation in energy production) arise only from
intact practices, which cannot be well governed by any set of universal rules.
Economists, for their part, recognize that some goods lend themselves to cen-
tral provision (defense), some to private monopolies (toll roads), and some
to maximum decentralization (friendship). Yet these categories are highly
underdetermined, and my briefly sketched model has little to say about which
goods belong where. Healthy, functional social orders have taken many dif-
ferent forms.
Subsidiarity: My order model overlaps the principle of subsidiarity, which
appears in the constitution of the EU and in Roman Catholic social doctrine.
As conventionally understood, this structural norm dictates that lower-level
actors in a hierarchy (such as Luxembourg within the EU, or a family within
a State) deserve both support (subsidium) and autonomy from higher-level
authorities. Is this principle compatible with architectonic pluralism, or are
they rivals? Russell Hittinger has argued that the point of subsidiarity is not
the efficient realization of social goals, nor decentralization for its own sake,
but rather preserving the goods and actions proper to the “group persons”
making up a social order (Hittinger 2002). As such, subsidiarity is premised
on a social pluralism not unlike the order model I have sketched, which envi-
sions a form of hierarchical complementarity between qualitatively distinct
communities. Notice, though, that the principle of subsidiarity in itself is
rather empty; it says little or nothing about what the character of those com-
munities should be. The Aristotelian pluralism I have sketched is more defi-
nite on one key point: the scope of the political community concerns a whole
way of life. Therefore, one can regard architectonic pluralism as one possible
fleshing-out of subsidiarity in a version that highlights the world-shaping role
of the political community vis-à-vis its constituent persons and groups.

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Yet if Aristotelian pluralism is compatible with subsidiarity in the abstract,

it does run afoul of one prominent Catholic interpretation of that principle,
which marginalizes the architectonic nature of politics, construing the politi-
cal community in more-or-less instrumental terms. This line of thinking
follows from the oft-quoted quasi-definition of the (political) common good
as “the sum of those conditions of social life which allow social groups
and their individual members relatively thorough and ready access to their
own fulfillment” (Gaudium et Spes 1965, 26).9 This language of “condi-
tions” suggests a reductive view of politics as a mere provider of resources,
or perhaps a curator of a favorable environment, which assists persons and
groups to achieve their own ends, whatever those might be. Insofar as politics
is indeed architectonic, citizens’ actions cannot be confined to this sort of
table-setting. Politics’ actions and horizons of value enter into the constitu-
tion of sub-political groups, affecting their self-understanding and inner life.
Characterizing this deep influence as the mere setting of favorable “condi-
tions” would be misleading to the point of deception. The defenders of sub-
sidiarity should not exaggerate the non-political character of private pursuits,
even as they rightly seek autonomy from an encroaching State. The shaping
of a whole way of life is part of the political community’s function, and will
be a major aspect of the “subsidium” (assistance) that it offers, for good and
ill, to groups and practices that always need a larger communal home.

CONCLUSION

To conclude, I will briefly comment on the difference an architectonic plu-

ralism might make in practice. Like other modes of polycentrism, it would
encourage robust lower-level governance, whether through active regional
government, trade unions, or other local control of workplaces and civic insti-
tutions. This cuts against the monolithic tendency to view politics, or even
the whole moral life, as the product and the care of a single agency. Unlike
other pluralisms, a distinctively architectonic pluralism highlights the sense
in which citizens do share an overarching moral project in their varied civic
pursuits, a project that importantly shapes their own lives and communities.
This recognition would allow them to be more forthright in their debates
over the good life. I have suggested that every regime, liberal or non-liberal,
ancient or modern, embodies some vision of the good, and so is architectonic
in practice. Embracing architectonic pluralism would acknowledge this basic
reality as a legitimate matter of discussion rather than disguising it under
a rhetoric of moral neutrality. Citizens could discard the technocratic pos-
ture that treats a torrent of statistics as the relevant public contribution and
metric for schools, firms, or whole regional communities. They could ask

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instead: How is this institution shaping us? And who do we want to become?
The resulting debate would be no simpler or easier to judge, but it would at
least be more honest.
Would not raising the normative stakes of politics foster the temptation
to meddle in the very civic associations whose autonomy all polycentrists
want to uphold? Likely so, though the temptation to misuse power besets any
political system. In an architectonic order model, this temptation would be
partially offset by the greater integrity and dignity of non-State practices and
associations, as recognized stewards of distinctive common goods, which can
serve both practically and morally, as a bulwark against State overreach. All
told, an Aristotelian approach to polycentric pluralism would be both more
and less intrusive than the politics of contemporary nation-States, but in ways
that more fully reflect the real ends and effects of citizens acting together.

NOTES

1. For very useful feedback on earlier drafts, I thank David Thunder, Matthew
Wright, the participants in the 2022 RESPUBLICA workshop, and anonymous
reviewers.
2. Philip Pettit (2006) gives a similar formulation for quite different reasons.
3. For the original movement see Hirst (1993), and for its recent revival, Levy
(2015).
4. Utz defines a common good as “goods or values insofar as they are the object of
the action of many.” (1958 I:132)
5. De Koninck notes that the common good of a given society “is the good of [ratio-
nal beings] only insofar as the latter are members of the society” (1943).
6. Simon reasons that a common end requires unity of action, and coordination
itself requires normative authority of some kind.
7. Wright does acknowledge that politics adds distinctive shared ends of its own,
in addition to these aggregated goods. I deny that aggregated goods as such count as
part/concern of political common good in the first place.
8. MacIntyre often attributes all-encompassing views to Aristotle, while in his own
name he tends to favor more pluralist positions. Compare his Whose Justice? Which
Rationality? (1988, chap. 7), with Dependent Rational Animals (1999, chap. 9).
9. Available in O’Brien and Shannon 1992.

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———. 1985. Nicomachean Ethics, translated by Terence Irwin. Indianapolis: Hackett.

Berlin, Isaiah. 2013. The Crooked Timber of Humanity, edited by Henry Hardy.
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Ciepley, David. 2013. “Beyond Public and Private: The Political Theory of the
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Finnis, John. 1998. “Public Good: The Specifically Political Common Good in
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Hirst, Paul Q. 1993. The Pluralist Theory of the State. London: Routledge.
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Hoipkemier, Mark. 2016. “Law and Friendship: Aquinas and Aristotle on the Virtue
of the Common Good.” Archivo Di Filosofia 84 (1–2): 43–54.
———. 2018. “Justice, Not Happiness: Aristotle on the Common Good.” Polity 50
(4): 547–74.
Ignatieff, Michael. 1985. The Needs of Strangers. New York: Viking Penguin.
Lane, Melissa. 2020. “Politics as Architectonic Expertise? Against Taking the
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Macedo, Stephen. 1990. Liberal Virtues. Oxford: Clarendon Press.
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———. 1988. Whose Justice? Which Rationality? Notre Dame, IN: University of
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———. 1998. “Politics, Philosophy, and the Common Good.” In The MacIntyre
Reader, edited by Kelvin Knight, 235–54. Notre Dame, IN: University of Notre
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———. 1999. Dependent Rational Animals. Chicago: Open Court.
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Pope Leo XIII. 1892. “Encyclical Letter ‘Au Milieu Des Solicitudes.’”
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&3DJH 6WDJH'UDIW
 Chapter 3

Polycentric Justice

John Thrasher

Justice, John Rawls famously argued, is the “first virtue” of social institu-
tions. Justice, in this sense, structures social cooperation. More precisely,
principles of justice provide a framework for evaluating the social rules that
govern society, understood as a “cooperative venture for mutual advantage”
(Rawls 1971, 4). As he puts it, “[a] set of principles is required for choos-
ing among the various social arrangements which determine this division
of advantages and for underwriting an agreement on the proper distributive
shares” (4). Principles of justice structure the basic rights, the duties, and the
distribution of the benefits and burdens of social life.
Justice is a solution to a fundamental problem in political philosophy. The
exercise of political power involves coercion. In a society of free and equal
citizens, coercion needs justification to distinguish it from mere force. There
are two classic solutions to this problem. Both rely on justifying the use of
political power, but they rely on different sources of that justification. One
justifies the use of political coercion by referencing an end that the exercise
of such power is meant to fulfill. Politics is justified insofar as it achieves or
aims at some otherwise valuable or attractive situation for society. This can
take many forms, but from Plato to Rawls, one common goal is justice, or a
just society. Insofar as political power is used in pursuit of justice, its legiti-
macy is secure.
Another approach is to see the legitimacy of political power as the result of
some procedure. Again, this can take many forms, but agreement and consent
are at its core. If everyone in the society agrees or consents to using certain
kinds of political power, it is natural to see the exercise of that power as
legitimate. Democratic government has this as its basis of legitimacy, but in
its most general form, we find the idea of political contractualism. Coercion

63

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can be legitimate and publicly justified if it is in accordance with the rational

agreement of those to whom it is meant to apply.
These two solutions to the basic political problem are unified in the work
of John Rawls, who uses a contractual mechanism of public justification to
authorize a conception of justice. Since Rawls, it has become natural to see
these two forms of justification as being tightly linked so that public justifi-
cation establishes a conception of justice that becomes the ultimate basis of
legitimacy and standard of evaluation at the highest political level.
I argue that this link is neither necessary nor natural and that we see the
clear tensions between contractualism and justice in the context of polycentric
theories of governance. Polycentrism highlights the importance of diversity
and experimentation in a political order, which helps us see the incongruity
between justice and contractualism (see also the chapter by Paniagua and
Pourvand 2024, in this volume). Justice as a global standard of legitimacy
and a universal evaluative norm is ill-suited to a polycentric system of gover-
nance. While polycentric orders need legitimacy in the traditional sense and
higher-level regulative norms, both are better accomplished through contrac-
tualism, which is not focused on justifying a universal conception of justice.
A polycentric-friendly version of contractualism will justify less-substantive
procedural norms and institutional rules instead. The insight to which poly-
centrism leads us is that contractual public justification can generate a stan-
dard of legitimacy without relying on justice as a basic norm. Or so I argue.
The argument proceeds as follows. In Section 1, I argue that justice and
the justification of political authority have traditionally been linked, espe-
cially in contractual theories of justification. Early contract theories directly
authorized the sovereign to rule, while later theories indirectly authorized the
sovereign to act on the basis of a conception of justice that the contractual
theory directly authorizes. This elegant solution to the problem of political
legitimacy faces a challenge in the high levels of diversity and pluralism
found in modern, liberal societies. It is implausible that a determinate concep-
tion of justice could meet their diverse and sometimes conflicting interests
and values. I introduce this problem in Section 2. In Sections 3 and 4, I exam-
ine how polycentrism highlights this problem and poses a potential solution.
Although all the strategies of using polycentrism to solve the problem of
diversity are instructive, none are without drawbacks. In Section 5, I argue
that the real problem is the strategy of indirect authorization through justice
used by modern contractual theories of public justification. I argue, instead,
that those concerned with diversity and liberalism should embrace a form of
polycentricism that abandons the indirect authorization strategy. The implica-
tions and paths forward are discussed in the conclusion.

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1. JUSTICE AND JUSTIFICATION

The basic political problem is to authorize the use of political power so

there is a principled distinction between illegitimate and legitimate coercion.
Legitimacy, in this sense, authorizes the rightful exercise of sovereign power.
There are two main methods of establishing legitimacy: locating it substan-
tively in some right-making property (e.g., the good, God’s will, justice)
or imbuing some decision-making procedure with legitimacy, which then
confers legitimacy on the outcomes of that procedure. The most general form
of the latter approach is a social contract, a general procedure based on an
agreement that authorizes legitimate sovereign authority.
We see this clearly in classical social contract theories. The contract’s pur-
pose for Hobbes is to authorize and select the sovereign, and justice derives
from sovereignty. Of justice in the state of nature, Hobbes writes:

To this warre of every man against every man, this also is consequent; that
nothing can be Unjust. The notions of Right and Wrong, Justice and Injustice
have there no place. Where there is no common Power, there is no Law: where
no Law, no Injustice. Force, and Fraud, are in warre the two Cardinall vertues.
(Hobbes 1651, 196, XIII)

The third law of nature, regarding justice, is “That Men Performe Their
Covenants Made,” but this law, being a law of reason and a condition of
peace, requires more than just words (Hobbes 1651, 220, XV). Justice can
only have force when the sovereign is established in the commonwealth.

Therefore before the names of Just, and Unjust can have place, there must
be some coercive Power, to compell men equally to the performance of their
Covenants, by the terrour of some punishment, greater than the benefit they
expect by the breach of their Covenant; and to make good that Propriety, which
by mutuall Contract men acquire, in recompence of the universall Right they
abandon: and such power there is none before the erection of a Common-wealth.
(Hobbes 1651, 220, XV)

For Locke, the story is somewhat different. Justice has meaning in the state of
nature and, in that sense, it can be understood independently of the contract.
Nevertheless, its adjudication and enforcement are left to each individual
in the state of nature, which makes the expectation of justice being done
“very uncertain.” Each individual is “constantly exposed to the invasion of
others” (Locke 1681, 350, II, 123). The contractual agreement, for Locke,
involves, as it does for Hobbes, everyone laying down their natural right to
be a judge and executioner of the natural law of justice. Once the sovereign

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commonwealth is established, it becomes the umpire that decides matters of

justice. He writes:

all private judgment of every particular member being excluded, the commu-
nity comes to be umpire, by settled standing rules, indifferent, and the same to
all parties; and by men having authority from the community . . . Those who
are united into one body, and have a common established law and judicature
to appeal to, with authority to decide controversies between them, and punish
offenders, are in civil society one with another: but those who have no such
common appeal, I mean on earth, are still in the state of nature, each being,
where there is no other, judge for himself, and executioner; which is, as I have
before shewed it, the perfect state of nature. (Locke 1681, 324, II, 87)

In both Locke and Hobbes, the establishment of the sovereign makes justice,
in the political sense, possible. Much the same is true in the other contract
theorists of the early modern period. These theories directly authorize a
sovereign who defines justice or acts based on it (depending on the theory).
However, this approach to authorizing the sovereign procedurally creates a
serious problem. The person of the sovereign “is but a man” who can preempt
the reason and interests of the members of the Commonwealth. As Locke
noted, this makes the sovereign more than just first among equals and seems
to irresponsibly empower the sovereign in a way that may endanger those
who initially authorized him. Doing so is more foolish than staying in the
state of nature. As Locke (1681, sec. 93) notes, “This is to think, that men
are so foolish, that they take care to avoid what mischiefs may be done them
by pole-cats, or foxes; but are content, nay, think it safety, to be devoured by
lions.” The solution is to limit sovereignty somehow, which creates puzzles
of its own.
In contemporary contract theories, these problems are avoided mainly
by authorizing the sovereign indirectly. Instead of justifying a sovereign
who defines and provides the normativity for justice, Rawls and later con-
tract theorists use the contractual procedure to justify principles or rules
of justice.1 Justice, identified by modeling justification through agreement,
becomes the direct source of sovereignty, which is then understood as the
source of political normativity. This approach uses a procedural strategy for
authorizing a legitimate sovereign, avoiding the dangers of locating that sov-
ereignty in a person or group by making the sovereign a substantive notion,
justice, which is the source of normative political authority.2 In modern
contractualist theories that follow Rawls, justice sets the conditions of coop-
eration and social stability. The contractors in the original position agree to
general principles of justice and only indirectly to a sovereign. Insofar as the
political order has a role in Rawls’s theory, it is to implement justice.

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2. DIVERSITY AND CONTRACTUALISM

This move to indirect authorization effectively fuses justice as a source of

normative authority and political contractualism or public justification as a
method of authorization. Contractualism becomes a model of public justi-
fication that, in turn, authorizes a conception of justice. This combines the
substantive and procedural methods of identifying legitimate political power.
The appeal is that it seems to capture the advantages of each approach while
avoiding their respective difficulties.
However, the problem arises once we allow a diversity of individual
evaluative and doxastic perspectives into the contractual model to reflect
the underlying pluralism of modern societies. Doing so makes the substan-
tive identification of justice difficult or impossible, since it now requires the
agreement of many different types of people with different views and inter-
ests. Any substantive conception of justice is unlikely to meet the standard of
public justification for a diverse community.
Modern contractualism has used two main strategies to deal with this
problem. The first is to restrict the diversity and pluralism of the underly-
ing contractual model to generate a determinate and even unique conception
of justice. For instance, Jonathan Quong restricts his conception of public
justification to only apply to the “constituency of an ideal liberal democratic
society,” i.e., citizens who already accept a liberal conception of justice
(2011, 6). He calls this the internal conception of public justification. We can
see this as narrowing the scope of political contractualism to secure a stable,
identifiable conception of justice. Adopting a different tactic, Nic Southwood
(2010) restricts diversity by introducing an ideal deliberative framework for
his contractual model. Michael Moehler (2018) pursues this approach differ-
ently by endorsing a multilevel contract theory. He argues that while deep
diversity exists on a lower level, contractors can rise to a higher, instrumental
level where they can agree on terms of peace using a bargaining model of a
contract. This approach faces fewer problems than the internal conception of
liberalism. Still, this entire family of theories, what I elsewhere call the insu-
lation strategy for dealing with diversity in the model of public justification,
faces similar problems (Thrasher 2023). The main issue is with the stability
of the conception of justice. When the scope of diversity is narrowed in the
contractual model of justification, the stability of that justification can be
undermined by the actual diversity in the real society it is meant to model.
Only those who share the reasoning of the contractors in the model will see
the political order as justified, leaving whatever portion of those who do not,
outside of consensus on justice.

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The other approach is to allow considerable diversity in the model of

public justification but to give up on the goal of identifying a stable or deter-
minate conception of justice as a global evaluative standard. This strategy
has been pursued by several recent theorists in different ways. Gerald Gaus
(2011) allows considerable indeterminacy in the contractual model, arguing
that social evolutionary dynamics will settle on a stable conception of justice.
Ryan Muldoon (2017) allows for maximal diversity in the contractual model,
using a Nash bargaining procedure to select the determinate conception of
justice. His model is dynamic, though, choosing different conceptions of
justice as the underlying views of the constituents of the society change.
Elsewhere, I have described these approaches to widening the scope of
diversity in the contractual model as the “harnessing strategy” for dealing
with diversity (Thrasher 2023). Unlike the insulation strategy, mobilizing
diversity in the model of public justification does not create obvious stability
problems. Instead, it creates problems with the publicity of the conception of
justice and its identification. It is difficult to know what the specific substan-
tive conception of justice is justified in each society, since it may be, as in
Muldoon’s theory, a moving target.3 Or, as in Gaus’s theory, the specific set of
norms in society that are justified may be a complex amalgam that is difficult
or impossible for normal citizens to explicate or identify with.
Both strategies face challenges. Nevertheless, as Rawls noted in A Theory
of Justice, the solution can’t be to retreat to a purely substantive approach
to identifying justice that rejects the need for a rationalizable procedure
altogether. Those who have embraced this approach in either its perfection-
ist (Raz 1986), purely intuitionist (Enoch 2013; Huemer 2013), Kantian
(Pallikkathayil 2016), religious (see: Vallier 2023), utilitarian (Hardin 1988;
Goodin 1995), or republican (Pettit 1999) form ignore the problems that
diversity and pluralism pose for identifying a stable conception of justice or
reject the need for doing so. However elegant and compelling such theories
may be on a philosophical level, they won’t be satisfying to those who see the
project of political philosophy as having to do with diagnosing and finding
high-level solutions to the problems of contemporary social life.

3. POLYCENTRISM AND CONTRACTUALISM

Diversity poses a problem to the indirect authorization structure of modern

contractualism. In the face of such a challenge, one might look to institutional
approaches that avoid the thorny problems of establishing a political order
from the top down, as political philosophers often seek to do, and instead
look to build it from the bottom up. In this context, polycentricity becomes a
potentially powerful solution.

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 Polycentric Justice 69

Paul Aligica and Vlad Tarko define a polycentric system as “a social

system of many decision centers having limited and autonomous preroga-
tives and operating under an overarching set of rules” (2012). The key idea
is that a polycentric order does not have a single unit with a monopoly on
decision-making powers. Decision-making in this context may involve coer-
cion or force depending on the order involved, meaning there is no monopoly
on using coercive force in such an order. Nevertheless, polycentric orders are
rule-governed orders. The overarching rules of the order structure the pow-
ers of the units within it, structuring their autonomy. As Aligica and Tarko
articulate:

Polycentricity emerges as a nonhierarchical, institutional, and cultural frame-

work that makes possible the coexistence of multiple centers of decision making
with different objectives and values, and that sets up the stage for an evolution-
ary competition between the complementary ideas and methods of those differ-
ent decision center. (Aligica and Tarko 2012, 251)

These orders are complex in that there are many combinatorial possibilities
for how the multiple units in a polycentric interact and how the agents work
within them. Entry and exit within the system and basic rules for changing the
structure of the units mean that polycentric systems tend to be both complex
and dynamic (Aligica and Tarko 2013).
For our purposes, the distinctiveness of polycentric orders comes from
two factors. The first is that the system is composed of decentralized,
semi-autonomous units. The second is that an overarching set of rules gov-
erns it. These two factors are related. Within a polycentric system, the sys-
tem’s rules are developed in a process of “co-production” that occurs within
and between the units in the system (Aligica and Tarko 2013, 736). This
allows flexibility in the rules, the ability to adapt rules to local conditions,
and a process for generating internal legitimacy for the rules that makes the
enforcement problem easier to solve. As Aligica and Tarko argue, the co-
production of rules makes it “likely that the quality of rules increases if the
competition between rule creators is increased” (Aligica and Tarko 2013,
736). This process of rule co-production is structured by an overarching set
of basic rules and the local social norms within the system.
We can now see how polycentric orders can accommodate and harness
evaluative and doxastic diversity. In the social and political context, we can
think of the polycentric order as a system of institutions, where institutions
are the “rules of the game” constructed by people to organize social interac-
tions (North 1990, 3). We have formal institutions and organizations, and
informal institutions and norms within this. Institutions tend to be made,
while norms emerge from conventions, although the two often overlap and

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interact. In a polycentric system, we shouldn’t expect that the institutions

within it will share rules or norms. This means that a diversity of different
types of institutions, reflecting the different norms and values of different
people, can coexist within the same order.
Returning to the idea of an overarching set of rules that structures the order,
this set of rules doesn’t need to be a conception of justice of the sort we find
in modern contractualist theories. Further, there doesn’t seem to be a need
for a universal standard of legitimacy. Instead, legitimacy is generated at the
level of the institutional units. Rather than applying one consensus evaluative
standard for the entire system, “the polycentric approach is concerned with
the possibility of creating valued states of affairs from as many normative
perspectives as possible” (Aligica and Tarko 2013, 738).
Although polycentricism incorporates diversity nicely, it raises the ques-
tion of the ultimate legitimacy of the political order in a new way. Even if the
legitimacy of the institutional rules within a polycentric order is determined
locally, insofar as some or all involve coercion, there is still the question of
whether that exercise of coercion is legitimate. Polycentric orders have no
substantive basis for their legitimacy—nor could they—so the direct method
of authorizing political power will not work. They also can’t rely on the tradi-
tional indirect contractual approach, since it is unlikely that such a conception
of justice will allow for the autonomy and flexibility of a polycentric order
or that the diverse constituents of such an order could agree on any stable
conception of justice. Given that neither method for authorizing legitimate
authority seems consistent with polycentricism, what reason do citizens have
for endorsing and complying with the system’s rules?
One answer, pursued in different ways by Müller (2019) and Barrett
(2020), is to use the indirect contractual approach to justify a political system
that is not based on justice but will reliably tend toward justice. On this view,
polycentric orders can be legitimate as they reliably move society toward jus-
tice. This is a directional justification for polycentricism. For Barrett, the best
we can hope for in a complex world is to identify progressive social orders in
the sense that they reliably tend toward justice in the long term. Polycentric
orders, he claims, are a crucial element of such a progressive social order. A
progressive social order is not legitimate because it is itself publicly justified
or implements a conception of justice that is publicly justified, but rather
because we can expect it to move toward justice. In this sense, the justifi-
cation of the social order is doubly indirect. Müller’s argument is different
in that polycentric democracy is the least unjust system available and the
most likely to lead to justice. As he describes it, polycentric democracy is “a
launching pad towards a realistic utopia” (Müller 2019, 178). This is also a
doubly indirect justification for the polycentric order based on its likelihood
of reliably aiming at justice.

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Another approach, what we might call a constitutive justification for

polycentricism, argues that the ongoing process of public justification with
a polycentric system justifies it and generates the appealing properties like
impartiality that we have come to accept from a global conception of justice.
We find this approach in the final work of Gerald Gaus (2021). Although his
argument is complex, the basic idea is that modern liberal democracies are
best understood as open societies composed of multiple levels of different
types of polycentric institutional arrangements. However, these polycentric
orders must be governed by a system of higher-level rules authorized through
a system of public justification. For Gaus, public justification occurs at the
level of basic moral rules that structure the norms of society. Public justifica-
tion ensures that these moral rules are stable since they are stable in the face
of discussion and disagreement (Gaus 2021, 51). These moral rules form a
kind of moral constitution that orders the basic terms of the social order (Gaus
2013). Within that moral constitution, the crucial feature related to justice is a
general principle of impartiality, which Gaus identifies as the core element of
the Rawlsian theory of justice (Gaus 2021, 140). He argues that a contractual
deliberative model paired with a model of social evolution generates justifica-
tion for ever more general principles of impartiality. In Gaus’s later theory,
we have a process for generating justification on a high-level principle of
impartiality and basic moral rules through a deliberative, contractual model
and social evolution.

3. STRATEGIES OF LEGITIMACY

The problem of establishing legitimacy has, as we have seen, a solution in

the form of using contractualism to authorize a conception of justice that then
supplies the normative authority for political power. This solution, however,
is jeopardized by the diversity of modern societies, which makes contractu-
ally authorizing a substantive conception of justice difficult (see also the
chapter by Paniagua and Pourvand 2024 in this volume). This difficulty is
compounded when we introduce polycentricity. We have seen three solutions
to this problem.
The first justice-based approach we looked at in the first section. Within
this approach, there are two strategies. The first, the insulation strategy,
constraints diversity to generate contractual justification for a conception
of justice. The second, the harnessing strategy, attempts to use the diversity
of society to justify a changing conception of justice. This second strategy
effectively gives up on a stable conception of justice, while the first attempts
to eliminate diversity to generate a stable conception of justice.

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The second type of solution embodied in justice-aiming theories argues

that diversity is ineliminable and, instead, attempts to indirectly justify a
diverse, polycentric order on its likelihood of progressively achieving justice.
In so doing, they give up on the need for contractual public justification as a
source of legitimacy. Rather than rely on an independent justification module
for their conception of justice, they posit a notion of justice at which they
argue, the polycentric order will reliably aim. The appeal of this notion of
justice indirectly justifies the polycentric order.
The third type of solution is Gaus’s constitutive approach, which goes the
other direction. It relies on public justification and diversity while relegating
justice to a high-level principle of impartiality and background moral rules.
This is not to say that Gaus jettisons justice as a central evaluative principle
completely, but the notion of a publicly justified conception of justice is not
meant to govern the lower-level institutions of the polycentric order directly;
instead, it serves as a basic guiding principle of the society. With the third
procedural approach, the idea of justice is becoming more ephemeral. We
might wonder why it is there and whether we need it.
Of these, the justice-preserving insulation strategy is the most straight-
forward. Still, at least in its traditional form, it is also the most problematic
since it considerably narrows the scope of liberal justification and, thereby,
opens itself up to serious problems with stability. The Gaussian constitutive
solution is the most subtle, attempting to preserve some version of justice in
the background while leaving little to do with the actual functioning of the
society. The justice-aiming approach is probably the best of both worlds in
some sense. Still, its plausibility largely depends on what we think about a)
its reliability claims, and b) its necessarily vague conception of justice doing
much of the work in the background. This approach is probably right because
generating a contractual consensus on a direction of justice is easier than a
specific conception. Still, in so doing, it may also lose the normative legiti-
macy that a stable conception of justice confers. In any case, each of these
approaches has its costs.
Brian Kogelmann (2017) proposes a more straightforward solution to this
problem, which he calls the polycentric model. This is a polycentric model
of a Rawlsian “well-ordered society.” A well-ordered society, for Rawls, is
a society governed by a conception of justice that is publicly justified and
recognized as justified, ensures social unity, and supports political autonomy.
In the well-ordered society under full justification:

citizens are in a position to know and to accept the pervasive influence of the
basic structure that shapes their conception of themselves, their character and
their ends . . . that citizens should be in this position is a condition of their

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realizing their freedom as fully autonomous, politically speaking. It means that

in their public political life nothing needs be hidden. (Rawls 1996, 68, 4.2)

Kogelmann represents diversity directly in his version of the well-ordered

society by modeling citizens as having multiple conceptions of justice, none
of which can be uniquely publicly justified. In his polycentric model, each
constituency for a particular conception of justice J={j1,j2…jn} has its ter-
ritorial community where that conception of justice authorizes the political
order. Crucially, there is a constraint that all these conceptions of justice are
liberal. He writes:

[T]hough there are disagreements about justice in the polycentric model, and
each differing conception of justice in J gets its own separate governance unit to
regulate, all such conceptions are still liberal conceptions—there are no pockets
of illiberal peoples in our polycentric order. (Kogelmann 2017, 679)

This model has no overarching conception of justice to unify society.

Nevertheless, each sub-community does have a unifying conception of justice
to organize it. Quite rightly, Kogelmann (2017, 680) compares this approach
to Nozick’s (1974) model of a meta-utopia in the third part of Anarchy, State,
and Utopia and Chandran Kukathas’s (2003) model of a decentralized society.
In contrast to the insulation, harnessing, justice-aiming, and constitu-
tive approaches we have already seen, we can think of this as a decentral-
ized approach to reconciling justice, public justification, and diversity. It is
decentralized and separated in that each community’s conception of justice
organizes it, but not any other community. It also partakes in an insulation
strategy as it insulates itself from the possibility of any of these communities
being illiberal. This reconciles justice, in the Rawlsian sense, with diversity
in the contractual justification by limiting the output of decentralized public
justification only to conceptions of justice acceptable to a larger, virtual pub-
lic justification for the polycentric order. As such, we can see that what we
have here is a virtual model of public justification that outputs a disjunctive
conception of justice J=j1 j2 …jn. In many ways, this is similar to Gaus’s
constitutive approach, wherein a permissible, “eligible” set of conceptions of
justice and then into an “optimal eligible” set before having some conception
of justice chosen by a historical evolutionary process (Gaus 2011, 20; 2021,
19). In Kogelmann’s decentralized model, this later step is skipped, and each
sub-community implements its preferred element from a kind of “optimal
eligible” set of conceptions of justice through a polycentric mechanism.
This decentralized approach has the advantage of capturing the appealing
features of Rawls’s theory of justice while not having to either completely
insulate the contractual model from diversity or use some non-rational

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mechanism of selection to pick from a diverse set of different conceptions of

justice. Regardless, it is not without drawbacks. Alex Schaefer (2022) raises
concerns about the polycentric order’s exit possibilities. While citizens have
a right to exit in the decentralized order, there is no guarantee there is any-
where to exit if they possess an extreme minority view. This is a problem with
Kogelmann’s model, since it undermines the political autonomy component
of a well-ordered society. As Schaefer argues:

The issue here is a consequence of Kogelmann’s strict requirement of full

autonomy: citizens must live under their favourite conception of justice, accord-
ing to their independently derived rankings. Consequently, just as in the unify-
ing model, citizens will fail to realize their full autonomy. (2022, 5) [emphasis
in original]

Schaefer proposes an amendment to the decentralized model to solve this

problem. He argues that if we model society-wide public justification as
involving agents that are reasonable, in the sense that they see themselves
as reciprocal cooperators and who include the other conceptions of justice in
their rankings, “the choices and values of other agents with whom they inter-
act factor into their practical reasoning” (2022, 8). He models this as every
agent in the contractual model A=a1,a2,a3,…aj having a personal ranking of
conceptions of justice that involves the intersection of the “eligible” set of
options i-nnJi (Schaefer 2022, 7). If no individuals have rankings of justice
that are a part of that larger intersecting set, exit options and full political
autonomy should be preserved.
This amendment should be compatible with Kogelmann’s decentralized
approach and largely solve the exit problem. Another, perhaps more seri-
ous issue concerns how this approach, even in its amended form, insulates
the contractual model from illiberal conceptions of justice. In one sense,
Kogelmann’s decentralized model is an exercise in fusing polycentricity into
an otherwise Rawlsian approach. As far as it goes, there is no problem using
the restricted Rawlsian assumptions to do so. However, it poses a problem
for using it as a general solution to the problem of contractual legitimacy in
a diverse society since it will replicate the fragility of other approaches that
use an insulation strategy.
We can put the point a little more precisely by thinking of the contractual
legitimacy problem as being one of generating a disjunctive or intersecting
“eligible” set of conceptions of justice. Polycentricity is merely a way of
implementing a series of related communities, given those options. We still
have a global norm in the form of justice, albeit a complicated intersecting
one. Presumably, the institutions within each community would be bound by
its norms of justice, and even more complicated norms of justice would bind

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some that crossed the boundaries of a given community. What we have, then,
is a multiplicity of monocentric orders governed by justice that are linked
together. Following the model’s assumptions, each community should be
stable despite insulation, assuming that sorting people into their preferred
communities is effective. However, the problems with the insulation strategy
concerning stability will be replicated in each community over time as new
people immigrate and emigrate, as new ideas emerge, and as the values and
beliefs of the people change. Diversity, which was cordoned off through
decentralization, will predictably reemerge, and we can expect the system to
be dynamically unstable. Despite its complications, the decentralized model
is still justice-centric in the Rawlsian way. This emphasis on justice as an
authorizing and governing norm makes reconciliation between justice, justi-
fication, and diversity virtually impossible.

4. CONTRACTUALISM AND A
POLYCENTRIC CONSTITUTION

We have seen that polycentricity highlights the problems diversity poses for
contractual models of legitimacy that rely on justice (Paniagua and Pourvand
2024). All the proposed solutions come with attendant problems. Further,
polycentric orders can’t completely avoid the fundamental political problem
of distinguishing between legitimate and illegitimate uses of coercion. We are
left with a dilemma. Either embrace some form of contractual justification
that authorizes a conception of justice, which limits diversity and, therefore,
polycentricity in some way, or give up on a universal standard of political
legitimacy that applies to the society as a whole and embrace polycentricity
without a clear standard of normative legitimacy. Neither of these options is
particularly attractive.
As I suggested at the outset, the link between contractualism as a method of
justification and justice as the output of that justification seems natural. I want
to suggest that this link isn’t necessary. We can directly generate a standard of
legitimacy through contractual public justification without relying on justice
as a universal normative authority.
Aligica and Tarko (2013, 738) note that polycentric orders are “concerned
with the possibility of creating valued states of affairs from as many norma-
tive perspectives as possible.” Having a universal conception of justice for
a society or a contractual model that limits the normative perspectives will
constrain these possibilities. Again, this creates a tension between polycen-
tricity and contractual theories that authorize justice. Gaus, as we have seen,
wants to allow for considerable polycentricity as well as endorse the impor-
tant role that justice plays in a society at a higher level. The question here,

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which Gaus attempts to answer in the third part of The Open Society and Its
Complexities, is how to keep things separated: how to keep the spontaneous
order and dynamism of the polycentric structure of what he calls the meso
and micro level without having the rules of the macro-order unify everything
into a monocentric uniformity. This is the inherent danger of a universal or
macro norm of justice that constrains the possibilities for experimentation in
the system it governs. In this way, even Gaus’s constitutive approach employs
an insulation strategy. Gaus’s concern seems to be what he calls “Hayek’s
troubling” claim that the basic terms of the open society can’t be rationally
justified. But, in Gaus’s later constitutive work, justice doesn’t take the role
that it did previously. Rather than being a global norm, it seems to set the
moral preconditions of any cooperative, complex society.
The cause of this tension is the role that justice is expected to play. As we
have seen, in modern contractual theories, justice is that standard by which
political power is judged legitimate. It functions as a super-norm that struc-
tures all the lower political rules and norms in society. This is, of course, not
the only way to think about justice. Michael Walzer (1983) defends a contex-
tual theory of justice, in which what counts as justice depends on the social
“sphere” one is in, in the relevant case. David Schmidtz (2006) argues for a
pluralistic conception of justice where justice has at least four elements. Chad
van Schoelandt (2020) defends a “functionalist” theory of justice that seems
to involve some pluralistic and contextual elements. There are many other
logical and actual possibilities (see: Van Shoelandt and Gaus 2018).
The point is that justice does not need to play the normative authorization
role in modern contractual theory to be important and valuable. For instance,
Geoffrey Brennan and James Buchanan argue that justice in conduct should
only be thought of as action by some set of recognized rules. They argue that
justice as giving each what they deserve only makes sense in the context of
a system of rules. They claim, “[t]he mere presence of rules is sufficient to
establish the relevance of desert, and hence the possibility of just and unjust
conduct by participants” (Brennan and Buchanan 1985, 110). This may seem
too strong, but they couple this idea of justice-within-rules with an idea of
justice-between-rules. The rules of institutions are assumed to be agreed to
by those within the institution, even while those same people may prefer a
different institutional structure.
Why should we assume that the institutional rules are the basis of some
consensus as Brennan and Buchanan do? Institutions that had rules that
diverged substantially from the values and beliefs of those within them would
be fundamentally unstable. The rules will either be ignored or changed. As
Elinor Ostrom and her collaborators have shown, the juridical rules may
differ from the de facto rights in many instances, and it is a theoretical and

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 Polycentric Justice 77

practical error to read off the de facto rights and norms from the explicit rules
of an institution (Ostrom 1990; Schlager and Ostrom 1992). Where there is
a mismatch between the existing norms and rights and the public rules and
rights, it is natural to want to align the institutional rules with the existing
norms and rights. Gaus and Barrett (2020) argue that there is (and should
be) a deep connection between institutional rules and legal structures and the
social and moral norms that support them. This point can be correct without
it. It is also true that the rules are in some sense optimal or even thought to
be optimal by most of the participants in the institution. Anyone working in a
university will be familiar with thinking that any number of university rules
could be better, without thinking that either breaking the rules is justified or
that the entire university is corrupt and unjust.
This conception of justice is compatible with polycentric governance since
justice results from action in accordance with institutional rules that will
likely vary between institutions. As Aligica and Tarko argue, in polycentric
orders, diversity of values doesn’t have “to be funneled into a single norma-
tive position”; they don’t require us to normalize or harmonize justice across
institutions (2013, 739). Justice in accordance with institutional rules can be
understood as an institutional conception of justice. Polycentricity and diver-
sity are compatible with an institutional conception of justice insofar as there
are many different institutions with different types of rules that individuals
see themselves as having reasons to work within or endorse.
Is there any sense in which an institutional conception of justice can play
the indirect authorization role of justice in contractual theories? Can it func-
tion as the source of normative authority and legitimacy? Not in the tradi-
tional sense. If justice is determined by acting in accordance with institutional
rules, then the legitimacy depends on the rules and the institutions that make
them rather than the legitimacy of the rules depending on justice.4 Since the
indirect authorization strategy will not work with this conception of justice,
we need to think differently about the relationship between justice and the
contractual procedure for generating legitimacy. As we saw in Section 1,
direct authorization in traditional social contract theories authorized a sover-
eign who defined and instituted justice. A polycentric order does not have a
sovereign in the Hobbesian sense, so this direct approach won’t work either.
However, polycentric orders have an overarching set of rules that structure
the order as a whole and the relations between units within a polycentric
order. Perhaps that set of rules can be authorized by the contractual procedure
and play the role that justice or the sovereign did in other theories.
Let’s return to the idea of a polycentric institutional order to see what such
an overarching set of rules would look like. Aligica describes a polycentric
order of self-governance as having two key characteristics:

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 78 John Thrasher

At its core is, first, the idea of a meta-level institutional framework of “the rules
of the game” constituting social arenas through systems of overarching rules.
Second is the notion that social actors interact via voluntary exchanges and vol-
untary associations within those general rules. (Aligica 2018, 197)

We have two sets of rules, one within institutions where people act directly
to achieve their direct outcomes, and another between institutions. We can
divide these two levels into the constitutional and institutional levels. An
institutional conception of justice will suffice at the institutional level, but we
can’t rely on institutional rules to structure the constitutional level. We also
have the problem of the authorization or legitimacy of the constitutional level
rules. We can use a contractual model to consider what kinds of constitutional
rules would be agreed to.
As I have argued elsewhere (Thrasher 2020; 2023), the contractual model
of public justification is a multipurpose tool of public authorization; it need
not aim only at justice. Instead, it can target a basic constitutional structure
or set of rules directly authorizing them. We can think of it as a test of legiti-
macy that can be, in principle, applied at any level. In his later work, Gauthier
(1997) describes political contractarianism as a test of normative legitimacy,
though he doesn’t develop this idea in detail. In some of his work, Gaus
(2011, 276–77) also argues that public justification is a test directly applied
to rules of social morality and laws. So, there is a precedent for decoupling
contractualism as a method of justification from justice as its target.5 If this is
done in the context of a polycentric order, the source of legitimacy becomes
the justified constitutional rules rather than a conception of justice that the
constitution then implements.
The exact constitutional rules will vary depending on the details of the
polycentric order. Minimally, any constitutional set of rules will require some
“rule of recognition” in the sense described by H.L.A. Hart (1961). This basic
rule is what Hans Kelsen (1934) called a grundnorm, or what Ehrenberg
(2020) calls a “basic validity rule”; not a traditional rule, but rather a test or
criteria for identifying valid secondary and primary rules. Hart is concerned
with a system of law, but a basic rule of recognition can also be used at the
constitutional level. The contractual test of legitimacy can be used to autho-
rize a basic rule of recognition and associated rules of change and adjudica-
tion. These are the basic requirements for a constitutional order that can serve
as a system of overarching meta-rules that govern the complex polycentric
order within it.
Although a constitutional order of rules will be morally important, it is
not dependent on moral authorization. Again, this distinguishes it from con-
temporary contractual theories focusing on justice as the fount of legitimacy.
Justice in a polycentric society will be largely determined by the constitutional

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 Polycentric Justice 79

structure and the institutions it makes possible. However, the constitutional

order does not implement some prior notions of justice. Given the abstraction
and generality of the basic secondary rules of society, there is good reason to
think that any contractual model of justification would employ a robust “veil
of uncertainty” since the link between general secondary rules and outcomes
will not be direct or foreseeable (Brennan and Buchanan 1985, 33–36). Our
model agents in the contractual model will come with their various moral,
religious, and practical worldviews. Since they are not directly choosing a
conception of justice or moral constitution to govern them, diversity among
these views should not make agreement on a basic set of constitutional rules
impossible or create the need for robust insulation that we see in contempo-
rary, justice-centric, contractual theories.
In this sense, public justification of a constitutional order in a polycentric
system is best seen in a realist light. Normative and moral concerns are rel-
evant to the choice of basic rules, but those considerations come into play
within the contractual test. This form of realism allows for normative consid-
erations to count but does not require a unified moral or normative standard
(Hankins and Thrasher 2022). Contractual public justification in this frame-
work doesn’t happen in a vacuum; existing norms and conventions of society
will be crucial inputs in the contractual model.

CONCLUSION

Polycentric governance poses unique problems for contemporary political

theory in ways that neither the political philosophers nor the polycentric
theorists have fully reckoned with. I have tried to isolate the main problem
as I see it and show how many of the proposed solutions seem inadequate for
the task. The problem arises from the justificatory strategy that contemporary
political contractualist theories have taken to solve the fundamental question
of legitimacy in a free society. Their solution, as we saw, was to use a tool for
authorizing a sovereign—the social contract—and use it to authorize justice,
which would then play the role of the sovereign. Justice becomes the main
tool of legitimacy, and contractualism becomes the method for identifying
justice. The problem that polycentricity highlights is that the more diversity
and dynamism there is in a society, the harder it is to see how a contractual
model can identify any clear and stable conception of justice. The dilemma
becomes either reducing diversity and dynamism to secure a clear conception
of justice, or rejecting the justice-based approach to legitimacy.
I have argued that the second option is plausible and especially well-suited
for polycentric systems. Political contractualism as a method of justification
can be unmoored from justice and used to evaluate basic constitutional rules

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 80 John Thrasher

that structure the polycentric order directly. In this approach, contractual

public justification can serve as the basis of a realist political contractualist
theory that outputs constitutional secondary rules rather than justice or rules
of morality. This makes the task of justification less fraught and more robust
in the face of diversity. Different kinds of societies will authorize different
constitutional orders, given their histories, conventions, and norms. Since
the rules for changing the constitutional structure are embedded in the basic
secondary rules, there is no expectation that a constitutional order should be
static. Rather, the process of self-governance within those rules should be
dynamic and allow for change in the face of changing circumstances.
The proposal here is a considerable departure from the alternatives on offer
(see also Paniagua and Pourvand 2024). It rejects a form of ideal theory in
favor of realism and deprioritizes justice as the goal of all social institutions.
Public justification in the form of contractual agreement is still central, but
it takes on a different form with a different goal than in other theories. The
move to direct rather than indirect political authorization makes it possible to
move to an institutional conception of justice, but it also raises other issues.
The main appeal of this approach is that it incorporates diversity into its
model of public justification and governance by assuming polycentricity. This
shows that the importance of polycentricity in political philosophy cannot be
ignored. It is not merely an institutional structure that can be used as a module
in, for instance, justice-centric political theories. As I have tried to show, the
appeal and necessity of polycentricity as a governance structure reframe the
entire political project at the highest level.

NOTES

1. Rawls, Gauthier, and their followers do this most clearly, but it is common
in most contractual theories. Elsewhere, I have argued that the attempt to justify a
unique, determinate conception of justice creates serious problems for both rational
choice, bargaining contract theories (Thrasher 2014), as well as Rawlsian theories
(Thrasher 2019a). James Buchanan develops a contract theory that focuses on the
justification of rules, not a determinate conception of justice (Buchanan and Tull-
ock 1962; Buchanan 1975; Brennan and Buchanan 1985) and largely avoids this
problem. His contractual theory is different from Rawls’s in many respects, though,
especially in its emphasis on the role of democracy and individualism (on this point,
see Thrasher 2019b).
2. Robert Nozick (1974) uses a different procedural approach in the first part of
Anarchy, State, and Utopia. Although similar in overall form to modern contractual
theories, Nozick’s approach is methodologically and substantively different. We can
see his thought experiment of the creation of a minimal state without violating any-
one’s rights as both a possible proof of such a society and as a standard of legitimacy

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 Polycentric Justice 81

or justice from which to judge our own. Although both Nozick’s model and contrac-
tual theories are counterfactual, they differ in that modern contractual theories are
concerned with assessing the reasons we have now for endorsing and complying with
social rules and use a counterfactual model to test those. For more on the counterfac-
tual status of contract theories, see D’Agostino, Gaus, and Thrasher, (2021).
3. Whether it is a drawback for justice to be a moving target is open to dispute.
Muldoon (2017) sees his dynamic conception of justice as a benefit, not a drawback,
of his theory. Alex Schaefer (2023) has argued that focusing on determinate concep-
tions of justice is a vestige of using fixed-point theorems in economics, and a dynamic
conception of justice is preferable. This may be correct; the point here is just that no
dynamic theory has reckoned with the problem of publicity. Perhaps, as Brian Kogel-
mann (2021) argues, publicity is overrated. In any case, it is a lacuna in contemporary
dynamic accounts of justice.
4. It is important to note that I am speaking here of “social” justice used to evaluate
institutions, not justice as it is treated in the criminal law or as applied to individuals.
Individuals will, of course, continue to have and use those conceptions of justice.
5. An earlier precedent can be found in the work of James Buchanan, specifically in
the model of constitutional choice developed in The Calculus of Consent (Buchanan
and Tullock 1962). On the relation of this work to the kind of contractualism dis-
cussed here, see (Thrasher and Gaus 2017).

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———. 2013. “Moral Constitutions.” Harvard Review of Philosophy XIX: 4–22.
———. 2021. The Open Society and Its Complexities. Oxford: Oxford University
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Kelsen, Hans. 1934. Pure Theory of Law. Clark, N.J. The Lawbook Exchange, Ltd.
Kogelmann, Brian. 2017. “Justice, Diversity, and the Well-Ordered Society.”
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———. 2021. Secret Government: The Pathologies of Publicity. Cambridge, UK;
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Müller, Julian. 2019. Political Pluralism, Disagreement and Justice: The Case
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———. 2023. “Is Justice a Fixed Point?” American Journal of Political Science 67
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Thrasher, John, and Gerald Gaus. 2017. “On the Calculus of Consent.” In Oxford
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 PART II

The Feasibility of
Polycentric Orders

85

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&DSDUW3DJH 6WDJH'UDIW
 Chapter 4

The Problem of Complexity

and the Emergence of
Polycentric Political Order1

Dries Daems and Alexander Schaefer

This chapter proposes an explanation of polycentric state emergence. Despite

a rich body of work on polycentricity—work that clarifies our conceptual
understanding (Ostrom 2014; Polanyi 1951; Aligica and Tarko 2012), iden-
tifies the special functionality of polycentric systems (Ostrom et al. 1961;
Aligica and Tarko 2013; Thiel et al. 2019), analyzes extant polycentric
governance structures (Vogler 2020), and examines the normative properties
of polycentric systems (Gaus 2016, 2021; Kogelmann 2017; Müller 2019;
Schaefer 2022)—there is no theory of how such polycentric governance
structures first emerged. We argue, on both theoretical and empirical grounds,
that the emergence of polycentric political systems can be partly explained by
their greater ability to govern complex social systems effectively.
We begin by carefully defining polycentric political systems and describ-
ing some of their functional properties. We then proceed, in the following sec-
tion, to present the key concept of our theoretical framework: the complexity
problem. As societies increase in scale and diversify their productive activi-
ties, governors face increasingly high information-processing demands. This
presents a governance dilemma: the State can either maintain direct control
at the cost of increased complexity or it can embrace increasing complexity
by allowing multiple, semi-autonomous centers of power to arise.2 Through
a variety of possible mechanisms, we argue, societies tend to drift toward
one of two basins of attraction: low complexity/high control or high com-
plexity/low control.3 Having explained the logic of our model, we develop
a detailed case study that compares the governance structures of Han China

87

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and ancient Rome. We opt for a case study since even the best cross-cultural
historical data available is rather sparse and unsuitable for thorough testing
or for illustrating the finer details of our account.4 To conclude, we discuss an
important implication of our theory for the prospects of centralized control
in the near future.

1. POLYCENTRIC POLITICAL ORDERS

At its most abstract, the concept of polycentricity can describe systems

as disparate as scientific inquiry (Polanyi 1951; Tarko 2015), democracy
(V. Ostrom 2014), markets (Boettke and Candela 2015), and the common
law (Hayek 1973). In all these realms, a network of connected agents inde-
pendently seeks out solutions to pressing problems. Through an evolutionary
process of trial and error, ever-better solutions come to replace dysfunctional
and outdated ones.
To elucidate the concept of polycentricity, Paul Dragos Aligica and Vlad
Tarko have isolated three essential features (2012, 252–53; 2013, 737):

1. several centers for decision-making that act with relative autonomy

within their (possibly) overlapping jurisdictions,
2. a single overarching system of rules (formally or informally
enforced), and
3. the emergence of a spontaneous social order as the outcome of an evo-
lutionary competition between different governance units.5

Illustrative examples of polycentric political orders include metropolitan

governance, American federalism (Candela 2021; V. Ostrom 2014), and
the European Union (Vogler 2020). Considering the last example, decision
centers include the municipal governments of European states, the national
governments, regional coalitions, as well as the European council, commis-
sion, and parliament. The jurisdictions of these decision centers clearly over-
lap: cities can pass ordinances, even while the laws passed at the highest level
of the European government, the overarching system of rules, will also apply
to those cities. This overarching system of rules regulates how citizens and
governments of various nations interact with one another. A key feature of
this system of rules is that it permits the free movement of goods and people
between European nations, allowing for both market competition as well as
“Tiebout competition,” i.e., voting with one’s feet, both of which support
spontaneous legal and economic orders (Mueller 2003, 187; Tiebout 1957).
One variable related to spontaneous order identified by Aligica and Tarko
is of particular relevance to the present argument. Polycentric political orders

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 The Problem of Complexity and the Emergence of Polycentric Political Order 89

permit the flow and aggregation of information in a way that monocentric

states cannot.6 As Hayek (1945) argued in the economic context, rivalrous
competition facilitates the use of vast quantities of tacit, dispersed, and
inarticulable information. To find the cheapest methods of production, for
example, several firms must engage in small-scale experiments, trying out
different combinations of inputs and producing slightly different products.
The emergent prices, which provide an interface between consumer demand
and factor supply, determine which firm has successfully met consumer needs
at the lowest cost. This firm will enjoy profits, while other firms will experi-
ence losses, reducing their market share over time unless they self-correct.
Without the process of experimental entrepreneurship, information about the
best and least costly production methods would remain underutilized or even
undiscovered (Paniagua 2018).7
In the same way, individuals within a political unit possess knowledge that
a central government does not. Polycentric political orders permit the use
of this information through horizontal and vertical competition. Horizontal
competition occurs between political units on the same level, often those with
non-overlapping geographical jurisdictions. Tiebout competition facilitates
horizontal competition, and thus provides information about the desirability
of different laws and policies. Vertical competition occurs as citizens opt
to organize the provision of governmental services on different scales. For
instance, policing services can be administered by the municipality or at the
federal level. When democratic choice procedures are in place, different lev-
els will compete for voter support. More generally, democratic institutions,
which grant decision-making power to the lowest-level units and the indi-
viduals, aim to aggregate information about voters’ preferences and beliefs.
This information is harnessed to provide feedback for political leaders who
are experimenting with different policy solutions (Barrett 2020). Citizens
who are unhappy with a regime can contest it by rallying political support in
its opposition. In its ideal form, democracy thus exhibits impressive epistemic
properties (Cohen 1986; Estlund 1997; Landermore and Page 2015).8 By
incorporating contestation, experimentation, and competition, this polycen-
tric paradigm is able to utilize dispersed and tacit knowledge in a manner
analogous to the market-price system.9
By contrast, a monocentric state, relying on the direct control paradigm,
possesses much less information about the conditions “on the ground.” To
some extent, this is an issue with any attempt to manage a situation from the
top of a hierarchical bureaucracy. As James Scott explains, “Officials of the
modern state are, of necessity, at least one step—and often several steps—
removed from the society they are charged with governing. They assess the
life of their society by a series of typifications that are always some distance
from the full reality these abstractions are meant to capture” (1998, 76).

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 90 Dries Daems and Alexander Schaefer

The monocentric state faces especially severe informational limits in this

respect: they lack the bottom-up feedback of the democratic process, as well
as any process of internal Tiebout competition to signal the success and fail-
ure of heterogeneous policy regimes. The direct control paradigm prevents
the endogenous emergence of policy decisions, instead attempting to govern
in a top-down fashion. The result is informational poverty.

2. THE COMPLEXITY PROBLEM

What Is Complexity?
Intuitively, many contemporary societies exhibit unprecedented levels of
complexity. To take one illustration, Eric Beinhocker has noted that the num-
ber of different goods currently for sale in New York City far exceeds the
number of species on the planet. This is not the case, not even remotely so,
for simpler societies such as the Yanomanö (Beinhocker 2006, 9). Although
the types of goods and services exchanged in an economy is a sign of social
complexity, it is merely a proxy. What fundamentally distinguishes a simpler
society from a complex one?
Social scientists have addressed this question both conceptually and empir-
ically. Scott Page (2015) characterizes complexity in terms of five properties.
A system is complex when it comprises:

1. a large number of entities,

2. a network structure that links these entities,
3. high levels of interdependence between these entities,
4. adaptive behavior on the part of these agents, and
5. diversity or heterogeneity of these agents.

In light of these properties, complex systems exhibit emergent proper-

ties, nonlinear dynamics, and constant novelty (see also Paniagua 2023).
As a result, intervening in complex systems often produces unforeseen yet
significant effects. This places severe limitations on long-term prediction
and control.
It is important to point out that when discussing social complexity and
societies that are more or less complex, we do not refer to outdated modes
of social evolutionary thinking with their Eurocentric and modern-centric
overtones. These modes of thinking presuppose a constant and irresistible
trajectory toward modern, Western nation-states as paragons of complexity,
civilization, and morality (Pluciennik 2005). In fact, all human societies can
be thought of as complex social systems aggregating or dispersing flows of

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energy, resources, and information to sustain their population and maintain

or expand their organizational structures (Daems 2021). Although societies
do vary in the size and density of their populations, and these populations
are more interdependent and diverse in some societies than in others, this has
nothing to do with their degree of “civilization” or moral status.
The empirical approach to analyzing complexity supports our conceptual
analysis. Many of the features identified by Page have been associated with
empirical indicators such as the total population and the availability of com-
munication technologies (Turchin et al. 2018). When large numbers of het-
erogeneous individuals interact, social complexity ensues.

Social Complexity and Direct Control

Social complexity is highly significant when considering the scope and
limitations of political actors. To begin our analysis, consider a State that
operates in accordance with the direct control paradigm. Such a State has
three key features. First, it issues commands unilaterally from higher levels
to lower levels of political administration; the direction of command is from
the head of the State to its subordinates. The subjects do not issue commands
to the State. Second, it actively opposes alternative centers of power, be these
other semi-independent governing units or autonomous, private corpora-
tions. Finally, power is organized in a vertical fashion, with few horizontal
connections.
In a highly complex society, this sort of state faces severe informational
challenges of two types. The first is the bottom-up challenge, alluded to
above, namely, that of apprehending vast amounts of dispersed and tacit
information, while the second is a top-down challenge, namely, that of pre-
dicting the important, long-term effects of policy interventions.
James Scott (1998) expertly analyzes the bottom-up challenge of state
administration. According to Scott, the statistical aggregates used by central
planners often abstract away crucial details. Public administrators of states
that govern complex societies cannot possibly access, document, and digest
the heterogeneous vernaculars of their myriad sub-communities. They have
difficulty perceiving complex patterns that individuals on the ground are
highly adept at utilizing. Consequently, administrators must rely upon “typi-
fications” that offer, at best, rough summaries of the true state of the world.
Relying on such “synoptic facts” is indispensable to statecraft (77). Yet, doing
so comes at a cost:

These state simplifications, like all state simplifications, are always far more
static and schematic that the actual social phenomena they presume to typify.

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The farmer rarely experiences an average crop, an average rainfall, or an aver-

age price for his crops. (46)

Each time a complete state of the world is distilled into a simple, abstract sta-
tistic for use at a higher level of administration, information is lost. Often, this
information is more than a distracting detail. As Scott shows, it is impossible
to know which pieces of information will be crucial for achieving desirable
outcomes and which can be safely set aside. This issue is less severe when
the governing unit is closer to the subjects being governed, when the subjects
being governed are homogeneous, and when these subjects inhabit relatively
predictable and uniform environments. However, upon introducing diversity,
interdependence, and larger populations—i.e., upon increasing complex-
ity—the loss of information becomes increasingly severe. In short, in the
absence of institutional solutions, bottom-up information loss is an increasing
function of social complexity. And, without adequate information about local
conditions, the effectiveness of State interventions becomes highly suspect.
Success will be evaluated according to abstract metrics that fail to capture
crucially important details about the true state of the world.
The second, top-down informational challenge also threatens to undermine
the effectiveness of State interventions into society. When systems become
complex, they defy prediction. Simple models assuming either a small num-
ber of elements or homogeneity fail to provide insight into the dynamics of
complex systems (Weaver 1948; Paniagua 2023). The impossibility of using
the experimental method to determine predictive laws for society has been
recognized at least since Mill (1836/2007). At its most basic, the difficulty of
prediction is a result of the combinatorics involved in systematic attempts to
determine predictive laws. As Page has pointed out, even if society were to
possess only ten relevant variables that could take on three possible values,
social scientists would need to run 59,049 separate experiments to determine
the effects of changing the values of these variables (2018, 5). If there were
a mere one hundred relevant variables, we would require 5.15 x 1047 separate
experiments. Although we’re often capable of making predictions with respect
to a narrow set of proximate effects of a particular intervention—increase the
money supply and inflation will go up—we can rarely predict its full social
ramifications, especially in the long term (Gaus 2021). This lack of precise
predictability impedes control. As a consequence, we observe, once again, an
inverse relationship between state effectiveness and social complexity.
Both of these informational challenges point toward a fundamental prob-
lem that political institutions face when confronted by an increasingly com-
plex society.

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 The Problem of Complexity and the Emergence of Polycentric Political Order 93

The Complexity Problem: The ability to understand and control social outcomes,
that is, to effectively intervene into society, decreases as social complexity
increases.

At some point, the complexity problem becomes so severe that the direct
control paradigm is no longer workable. In such a situation, the State faces
a “choice” between two options. First, it can fight against complexity, which
entails restricting the diversity and spontaneity of actors in its society. Scott
notes that all States, to some extent, engage in simplifying practices; they
attempt “with varying success to create a terrain and a population with pre-
cisely those standardized characteristics that will be easiest to monitor, count,
assess, and manage” (1998, 81–2). Attempts at social simplification become
especially critical for states organized around the direct control paradigm.
If they succeed at holding social complexity at bay, then the direct control
paradigm may remain workable. Otherwise, they must opt for the second
option: shifting to a new governance paradigm, which we call the polycentric
paradigm. Like the direct control paradigm, the polycentric paradigm is an
ideal type, approximated to different extents by various real-world States. We
now turn to the characterization and examination of this paradigm.

3. SOCIAL COMPLEXITY AND POLYCENTRICITY

The polycentric State differs from the direct control State in several key ways.
First, polycentric governance requires that services be provided on multiple
scales (Aligica and Tarko 2012, 257; V. Ostrom 2014; Stephan et al. 2019,
41). While a direct control State may establish a hierarchy with unidirectional
authority (lower levels answer to higher ones), polycentricity requires that
these layers exhibit some degree of autonomy and that lower levels exert
some influence on higher levels. The subjects, mid-level functionaries, and
high public officials answer to one another.
Second, the polycentric State permits competition between administra-
tive layers (V. Ostrom 1972). If local efforts fail to adequately defend the
local populace, defense services can be organized at a higher level, such
as a confederation of cities, or a nation. This may be undertaken through a
“quasimarket” arrangement, where local governance structures purchase such
services from larger providers who reap the advantages of economies of scale
(Boettke et al. 2011).
Third, the polycentric state supports alternative centers of power within
each scale, be these other governing units or semi-autonomous, private
organizations. For instance, in the United States, a national government pro-
vides services to state governments. In the European Union, the European

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government supports national governments in various ways. These states

(in the United States) or nations (in the E.U.) offer alternative governance
schemes to a population of citizens who select their jurisdiction partially on
the basis of their governance competency. In sum, polycentric governance
entails a multitude of levels, and competition occurs both vertically and
horizontally.
In situations of low complexity, it is unclear whether the polycentric
paradigm has any advantages over the direct control paradigm. If citizens are
homogeneous in their values/preferences, low in number, relatively autarkic,
and reside in stable, uniform environments, then the informational problems
noted above will be minimal. In fact, in such a scenario, the polycentric
paradigm seems to engender unnecessary costs. Polycentric governance
involves a larger, less streamlined government. The various nodes of power
must negotiate before many resolutions can pass. This often takes the form
of competition among elites vying for power, which can produce collective
action problems and suboptimal outcomes (Fukuyama 2011, 431). As more
and more agents can contest decisions, reform becomes more difficult. Direct
control avoids all these additional costs, since a single individual or small
group determines the social choice and hands it down without unnecessary
delay or bargaining. Direct control, in other words, exhibits low transaction
costs compared to polycentricity.
As social complexity increases, however, informational problems come to
the fore. In the direct control paradigm, detailed information on the ground
struggles to reach high public officials. Polycentricity alleviates this prob-
lem in various ways. First, much governance is undertaken by lower-level
political units. Because these units have smaller constituencies as well as
more lines of communication between their officials and their citizens, the
officials and citizens enjoy much greater proximity. Second, insofar as lower
administrative levels can affect higher ones, the authority between various
levels is bidirectional, allowing citizens or small organizations to directly and
indirectly register their preferences and beliefs. For instance, in the United
States, citizens at the lowest level of organization select the president directly,
but they also choose senators, representatives, and governors who influence
the president in various ways. This provides a bottom-up source of informa-
tion. Historically, of course, few if any societies have been democratic in the
sense of granting universal suffrage and holding referenda to directly deter-
mine government policies. However, polycentric political structures need
not be democratic in this sense. Polycentricity, as we have defined it, mainly
requires that lower levels of political structure exert power or influence on
higher levels.10
Competition is also paramount to generating usable information. Vertical
competition occurs when citizens decide whether local, regional, or federal

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 The Problem of Complexity and the Emergence of Polycentric Political Order 95

governments best provide public goods and services. This information guides
the State in determining the best level at which to provide a public good or
service. Horizontal competition occurs as polities strive to attract citizens.
Due to high transaction costs, horizontal competition is typically less effec-
tive than market competition. Nevertheless, when a governing unit is suffi-
ciently ineffective, citizens will emigrate or, at least, decide not to immigrate.
Horizontal competition thus facilitates the exercise of exit power and permits
the flow of information from citizens on the ground to higher-level political
units (Aligica and Tarko 2013; V. Ostrom 2014).
At the same time, polycentricity can be viewed as a partial solution to the
top-down information problem. Most obviously, shifting governance respon-
sibilities to lower-level units will reduce the average complexity of the prob-
lems that a government must solve. Within lower-level units, constituencies
will be smaller and more homogeneous. Consequently, policy interventions
are more predictable, and collective goals are better defined. In addition,
processes of competition provide informational feedback by directing power
and resources toward political units that engage in successful experimenta-
tion. Political units that stagnate or engage in unsuccessful experimentation
will, correspondingly, shrink in relative size and power. As a result, even if
the effect of policy interventions is impossible to predict ex ante, the process
of competition will scale up ex post successful interventions, while unsuc-
cessful policies will diminish in prevalence. Both vertical and horizontal
competition thus contribute to an evolutionary search algorithm that identifies
effective reforms.

4. A SIMPLE MODEL OF GOVERNING COMPLEXITY

In light of the difficulties faced by direct control and the advantages of the
polycentric paradigm in coping with increasing complexity, we can posit a
rough relationship between social complexity and government effectiveness
(Figure 1). Direct control (blue curve), we have argued, is a low-cost technol-
ogy for governing low-complexity societies, at least with respect to gathering
and utilizing pertinent information. Accordingly, the marginal value of gover-
nance is quite high when social complexity is low. However, the effectiveness
of governance begins to decrease as social complexity increases. Perhaps the
strains of complexity are not felt at first, but beyond some point, the func-
tion will be strictly decreasing. By contrast, the polycentric paradigm (red
curve) generates unnecessary transaction costs at low levels of complexity.
The elaborate processes of competition, preference aggregation, and service
duplication are wasteful in the absence of informational challenges. However,
polycentric governance, largely due to its decentralized structure, scales far

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more gracefully than direct control. As complexity increases, polycentric

governance is able to access and utilize ever more information at a relatively
constant marginal cost.11 Eventually, there comes a threshold of complex-
ity at which polycentric governance yields higher marginal benefits for the
society it governs. That is, it better enables relevant information to determine
decision-making.
Beyond a certain point of complexity, a direct control paradigm may stifle
information flows rather than help to gather and utilize them. This occurs
at the point c1, where the blue curve intersects with the abscissa. There also
exists a point where governance itself, including a polycentric approach, may
simply become difficult or impossible (Gaus 2021, 122), so even the polycen-
tric governance curve will likely decrease beyond a certain point. However,
we restrict ourselves to intermediate levels of complexity, where the relative
effectiveness of polycentric governance can be represented by an increasing
function of social complexity.
Given these two functional forms, there will exist a critical threshold of
complexity, c*, at which point the polycentric paradigm becomes a more
effective governance form than direct control. This is the point at which the
complexity problem becomes acute: to remain effective, the state must either
embrace polycentricity or combat the trend of increasing complexity.
So far, this story has not specified the precise mechanism by which a
society chooses its political structure. We have avoided doing so because the
model we propose is compatible with a number of mechanisms, several of
which may be operative at any given time. For example, elites may have an
interest in adopting the most effective political structure. Perhaps they see
the value of increasing the wealth and power of their society, or perhaps, as
Ahmed and Stasavage (2020) suggest, poor policy choices threaten to spark
rebellions. A second and probably more important mechanism involves
inter-societal competition. When societies coexist under competitive condi-
tions, those that adopt effective governance structures gain an advantage and
are thus more likely to subsist and expand than societies that fail to adopt
such structures. Assuming competitive conditions, then, we would predict
a positive correlation between complexity and polycentricity and a negative
correlation between complexity and direct control. These correlations will
hold even in the absence of conscious forethought or deliberate design.
This formalistic description is not a historical narrative. We are not claim-
ing that States first arise as examples of direct control before deciding, in the
face of increasing complexity, whether or not to become more polycentric.
In fact, some modern States have been polycentric from their conception
(Hall 1985). What this analysis does suggest, however, is that polycentric
States generally better accommodate social complexity, while direct control
States face strong pressure to either drift toward more polycentric forms of

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 The Problem of Complexity and the Emergence of Polycentric Political Order 97

Figure 4.1. Comparative Effectiveness of Monocentric and Polycentric Governance.

Source: One of the authors.

governance or to actively combat the growth of complexity. The direct con-

trol State, in other words, must strive to maintain a level of complexity below
c*, lest its power should become clumsy and ineffective.
Can the theoretical apparatus developed thus far shed light on
real-world political development? In the next section, we draw on histori-
cal work that compares ancient Rome to Han China. The theory developed
above allows us to understand better some of the stark differences between
the political structures of these two empires.

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5. ANCIENT ROME AND HAN CHINA

In this section, we draw on a body of recent work in archaeology and political

history that compares Han China to ancient Rome (see, among others, Beck
and Vankeerberghen 2021; Scheidel 2016, 2014, 2009; Mutschler and Mittag
2008). The comparison between Han China and Rome illuminates our study
for various reasons. First, these two empires were contemporaneous and of
roughly equal sizes during the period of comparison (200 BCE–200 CE).
Second, hardly any direct interaction existed between the two empires,
which resulted in a somewhat clean natural experiment. While goods from
China, such as silk garments, were highly sought after by the Roman elite,
they mainly reached the Mediterranean through intermediaries operating on
the outskirts of the Silk Road (Thorley 1971). While Chinese sources report
Roman ambassadors to have visited the Han capital in 166 CE (Leslie and
Gardiner 1996), these visits occurred sufficiently late in our temporal win-
dow of comparison. For our purposes here, we can consider both polities
as only minimally interacting on a restricted scale and in an intermittent
fashion. Finally, both states had differing levels of complexity. If we take the
composite metric of social complexity developed by the Seshat team (see
Turchin et al. 2018 for more details) for China and Rome from 200 BCE to
200 CE, we see the former going from a value of 2.97 to 2.24 and the latter
from 1.72 to 3.26. In other words, whereas China started out as more complex
at the start of our case study, it was unable to sustain this level, recording a
slight decrease in overall complexity, whereas the Roman Empire managed to
increase its complexity to a level even higher than Han China’s starting value.
Ian Morris (2010) corroborates this conclusion with a newly developed mea-
sure he calls “social development.” Morris used this index to compare Han
China to its Western counterpart, attributing higher scores to ancient Rome
than to ancient China (100 BCE–500 CE) for three complexity-tracking vari-
ables: energy extraction, social organization (i.e., the size of settlements), and
communication technology.
Given this disparity in social complexity, the theory laid out above would
predict higher levels of polycentricity in the Roman Empire than in the Han
Empire. This divergence in level of complexity is important given that we
aim to examine the causal relationship between social complexity and poly-
centric political organization. We wish to know whether polycentric states
support higher levels of social complexity and whether monocentric states
tend to pursue policies of social simplification.
The roots of Chinese imperialism, as well as the origins of Rome, lie
shrouded in myth. We focus on a period in which both empires exhibited
a high degree of unity. In China, the Qin emperor’s unification of seven

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 The Problem of Complexity and the Emergence of Polycentric Political Order 99

regional polities in 221 BCE laid the foundations for the Han Dynasty
(202 BCE–220 CE) considered here. In 220 CE, imperial rule under the Han
Dynasty came to an end after civil unrest resulted in centuries of disunion
and conflict between rival fiefdoms. Although Rome began as a republic,
elite rivalries slowly eroded institutional structures from the second century
BCE onward (Lintott 2013), culminating in a civil war during the first century
BCE. Civil order was restored by Emperor Augustus, setting the scene for
imperial rule during the first and second centuries CE.
Recall that the hypothesis we defend here asserts that, at least under com-
petitive conditions, higher social complexity should induce either greater
polycentricity or provoke reactionary attempts to stifle that complexity.
Examining various aspects of state administration in ancient Rome and Han
China confirms this prediction. One preliminary observation is quite strik-
ing: while Han China’s population was slightly less than that of the Roman
empire, the Han state employed more than ten times as many public officials
(Noreña 2015, 196–97; Scheidel 2015, 167). The reason for this, we argue, is
that the Roman Empire relied on municipal governance headed by local elites
rather than centrally appointed officials (Noreña 2015, 201). This reflects a
massive difference in state organization.
Especially in the eastern Mediterranean, a long tradition of local civic
autonomy can be traced back at least to the early Hellenistic period (350–
200 BCE), resulting in an intensive competitive interaction space between
cities and kings (Ma 1999; Strootman 2011). Within this interaction space,
cities competed for favors from the royal courts but also used the constant
strife and warfare between the various Hellenistic kingdoms vying for control
over the eastern Mediterranean and Near East to gain benefits for themselves,
including monetary gifts, tax exemptions, and land donations (Ma 2013).
Moreover, the Hellenistic world was one of unprecedented social and geo-
graphical mobility, as specialists, artisans, traders, mercenaries, scholars, and
fortune-seekers increasingly roamed from city to city, from court to court, and
from festival to festival, throughout the Hellenistic world in search of profes-
sional opportunities (Chaniotis 2018, 291–95). Increasing opportunities in the
urban centers, along with the normalization of social and geographical mobil-
ity, offered genuine alternatives to agriculture and provided real possibilities
for the dispossessed to seek employment elsewhere, effectively engendering
a Tiebout competition process. The political dominance of the Roman Empire
reduced the effectiveness of the competitive interaction space between the
local and imperial levels. Still, the Romans maintained many of the existing
interaction mechanisms (Colvin 2004). Moreover, the social and geographi-
cal mobility, which facilitated Tiebout competition, remained in force as the
Roman oecumene offered ever-increasing social and economic opportunities
in the first two centuries CE (Verboven 2021; Willet 2021).

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In contrast to the ancient Roman state, the Han Empire selected its own
officials and appointed them to manage the local affairs of its towns. They
even had strict rules against assigning officials to towns where they had
local connections or preexisting influence (Lewis 2015, 205–06). As Noreña
explains, “Throughout the Han Empire . . . the central regime managed to
administer its territories and to govern its subjects directly via centrally
appointed imperial officials. There is no real parallel in any other premodern
empire” (2015, 198).
This stark difference in urban administration reflects very different his-
tories. While large parts of the Roman Empire emerged from a context of
self-governing city-states during the preceding Iron Age and Hellenistic
period (Boehm 2018; Dimitriev 2005), China’s land-owning elites were
stripped of power fairly early. Already during the Warring States period,
municipal governments were swallowed up by ambitious state-builders
(Noreña 2015, 201). Just before the onset of Han rule, during the Qin
dynasty, 120,000 of the wealthiest and most powerful families were report-
edly relocated to settlements near the capital where they could be more easily
surveilled. The relocation process continued during the Han dynasty (Noreña
2014, 194), and within the first hundred years of Han rule, any vestige of
feudal institutions had been eradicated (Fukuyama 2011, 132). The power
of local elites and the sense of autonomy of cities within the Roman Empire
were too great to have permitted the Roman government to achieve such a
feat on a grand scale.
Especially in its early years, Han China was ruled by a strong centralized
government, exercising strict control over a series of provinces (San 2014,
73). As time went on, the central government weakened and lost its grip over
the increasingly powerful elite families. The Han government would eventu-
ally come to face major rebellions from regional warlords, resulting in the
establishment of a series of regional polities that were only nominally paying
homage to the emperor. This decentralization process should not be conflated
with the emergence of polycentricity, as the effective transmission of infor-
mation was cut off in favor of, at best, mere nominal interactions between the
centralized government and regional warlords.
The Roman Empire’s relative decentralization of political power appears
starkly in its relatively distributed population. Urban centers in Rome were
smattered across the Mediterranean region, while Chinese urban centers
clustered tightly around the capital city (see Figures 2 and 3). This dispersal
of towns in imperial Rome is all the more critical when we consider their
relative autonomy.
The decentralization of power in the Roman Empire produced several
important effects. First, and especially crucial for an empire that relied upon
a massive army to maintain control over its provinces, taxation was assessed

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 The Problem of Complexity and the Emergence of Polycentric Political Order 101

Figure 4.2. Urban sites in Han China.

Source: One of the authors using data from Berman (2017).

and collected at a local and regional level before being passed to the impe-
rial state. This constituted one part of a power-sharing outcome that Walter
Scheidel has called “the great bargain” (2014, 164). Under this arrangement,
local elites were granted autonomy in exchange for their cooperation in
providing the imperial state with tax payments used to support the military
and the metropolitan populace of Rome. This arrangement left considerable
discretion in the hands of local elites. By contrast, the Han Chinese state was
able to undertake direct taxation on land output through the use of its own
officials (Scheidel 2015, 164).
Second, local autonomy meant that political organization varied across
the Roman Empire, with some provinces or municipalities exhibiting more
and some less economic and individual freedom (Eich 2014). Although the
evidence does not permit any definitive statements, institutional diversity
may have promoted competition between cities and provinces. As noted
above, there was a high level of individual mobility between Roman cit-
ies. At the same time, Roman elites made massive voluntary investments in
public works, perhaps to appease and attract citizens (Lewis 2015, 205). In
Han China, by contrast, investments in public buildings were restricted to
state officials: “the sanctioned public realm was formally identical with the
sites of state activity” (Lewis 2015, 218). The average citizen could not enter
nor utilize public buildings. This discrepancy between Roman public works
and Chinese state buildings is quite predictable from the perspective of basic

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Figure 4.3. Urban sites in the Roman Empire.

Source: One of the authors using data from Hanson (2017).

economic theory: cities within competitive frameworks will offer a greater

quantity and quality of services than cities within a monopolistic framework.
A third effect of decentralized political power was a diminished ability to
control economic activity. Markets did, of course, exist in Han China, but
they were a unique exception to the general lack of public spaces the state
provided or permitted. Moreover, markets did not, as in Rome, support a
sphere of non-public social activity. As Carlos Noreña explains . . .

The one exception to [the] general ban on crowds were the official, urban mar-
kets. These areas were marked as public spaces through two forms of construc-
tion: a central, multistory tower that housed the officials in charge and a grid
of stalls in which shops were arranged by the category of goods that they sold.
They also followed the pattern of Han public spaces in that they were placed
behind walls and open only at stipulated times that were signaled by banners and
drums. The beating of drums to signal the opening of the market in the morn-
ing and its closing in the evening provided the earliest known form of a major
feature of imperial Chinese urban spaces in that a “soundscape” fashioned by
the government marked the rhythms of the day. According to Qin law, records
of all transactions were to be submitted to officials, so commercial interactions
all brought the participants into regular contact with the agents of the govern-
ment. (2014, 213–14)

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Thus, the sole public space in which commoners were permitted to congregate
became, in Han China, a platform for social and economic control. In con-
trast, while still governed by institutional rules, Roman marketplaces appear
to be less regulated, less regimented, and often spontaneous (McMullen
1970).12 It has been noted that the imperial administration lacked the neces-
sary resources to impose new formal institutions and needed local elites to
enforce them (Verboven 2021). In a similar vein, Carlos Noreña explains
how towns spontaneously formed near the perimeter of the Roman empire in
order to exchange goods with soldiers in possession of gold (Noreña 2015,
195). Marketplaces in the Roman Empire were not theaters for state power,
as in Han China, but spontaneously emerging centers for capitalist exchange
(Runciman 1983; Temin 2013).
In addition to exercising tight control over the venue of exchange, the
Chinese imperial state also controlled the price and quantity of goods
exchanged by monopolizing most of the relevant industries: salt, iron, tea,
wines, and spirits, as well as a monopoly in waterways, foreign trade, and
real estate. By contrast, state monopolies in the Roman Empire, though some-
times granted to private merchants, were less extensive and direct than those
of the Han State. In its earlier phases, the Roman Empire had very few such
monopolies (Broekaert 2019).
For example, consider the market for real estate in ancient towns. Éteinne
Balazs reports the stark difference in how this commodity was managed in
Rome versus Han China: “Whereas in the West . . . it was the urban patri-
cian class that sold or let sites, premises, workshops, and other commercial
or industrial establishments to the artisans and merchants, in China it was the
state that was the ground landlord, the state and the officials that built and let
shops, warehouses, and other commercial buildings” (1964, 77). According
to recent studies, property in ancient Rome was owned primarily by private
individuals, priced and distributed by market mechanisms (Temin 2001, 178–
79). There are many accounts of Roman citizens who gained or lost fortunes
through the private sale or acquisition of property.13
A similar contrast between Han China and ancient Rome could be drawn
for other crucial commodities, such as cereals, cloth, and iron. These indus-
tries were dominated and controlled by the Han State in a way that makes
the ancient Roman State, despite its many incursions, look like a laissez-faire
pseudo-state. There are, therefore, several examples of how the Han State
targeted and crushed rival centers of power. In contrast, the Roman State
allowed power, both political and economic, to emerge outside of its ambit.
To underline the main point, it was not merely that the Han Chinese State
accidentally hampered economic activities through their interventionist poli-
cies. For our purposes, the most important fact is that the State actively and

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intentionally hindered entrepreneurship and innovation in order to maintain

control. As Balazs writes,

every means of keeping the merchant class down and holding it in subjection
seemed permissible. Compromises, exceptions, favors, pardons—all were
allowed so long as they were retracted at the earliest opportunity. Claims, titles,
privileges, immunities, deeds, charters were never granted. Any sign of initia-
tive in the other camp was usually strangled at birth, or if it had reached a state
when it could no longer be suppressed, the state laid hands on it, took it under
control, and appropriated the resultant profits. (41)

The contrast with early imperial Rome is stark. As Michael Rostovtzeff tells us:

[t]he period of Augustus and of his immediate successors was a time of almost
complete freedom for trade and of splendid opportunities for private initiative.
Neither as a republic nor under the guidance of Augustus and his successors did
Rome adopt the policy . . . of nationalizing trade and industry, of making them
more or less a monopoly of the state as represented by the king. Everything was
left to private management. (Rostovtzeff 1926, 54)

While some have accused Rostovtzeff of exaggeration (Finley 1973), more

recent work has vindicated his analysis of Roman economic organization
(Temin 2013, 2001). Market mechanisms played a very important role in
determining the distribution of resources. In China, by contrast, private initia-
tives outside of State institutions were not viable strategies for accumulating
wealth; economic power was far more concentrated in the hands of the central
State and was largely acquired through State activity. A key consequence of
this disparity, as Balazs explains, is that “while the Western town was the
seed-bed and after the bulwark of the bourgeoisie, the Chinese town was
primarily the seat of government, the residence of officials who were perma-
nently hostile to the bourgeoisie, and thus always under the domination of
the state” (44).
An important caveat to the contrast presented here—a contrast between
a powerful and centralized Chinese State and a decentralized Roman one—
concerns the military. Rome’s military was highly centralized and much
larger than that of Han China’s. During the same period, Rome spent roughly
three times more on military expenditures than Han China (Scheidel 2014,
174). However, the vast majority of military affairs were conducted at the
periphery of the empire. For this reason, controlling military power did not
entail control over cities or towns of the interior. In fact, the need to con-
stantly focus on the perimeters of the empire may help to account for their
relative lack of control over the interior.

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 The Problem of Complexity and the Emergence of Polycentric Political Order 105

A second caveat concerns the mechanism at play in determining these dis-

parate political structures. As mentioned above, historical contingency played
a significant role in determining the centralized structure of the Han State, as
it did in determining the decentralized structure of the Roman counterpart.
Many interacting variables were at play in determining these trajectories.
The hypothesis we defend here seeks to elucidate a natural affinity between
social complexity and polycentricity. Our hypothesis predicts that when
effective governance is required for maintaining a society, high complexity
will correlate with higher levels of polycentricity. In the case study under
consideration, the Roman Empire was committed, even prior to their rapid
increase in social complexity, to a form of polycentric governance. This com-
mitment was due to factors that had little to do with social complexity, but
they did, nevertheless, permit a flourishing of social complexity without the
need for drastic changes in political structure. By contrast, due to the efforts
of their Qin forebears, the officials of Han China operated a highly central-
ized bureaucracy that viewed social complexity as a subversive threat to State
control. Consequently, they combatted many of its manifestations.
Our hypothesis is compatible with the observation that historical processes
can push societies into suboptimal governance structures, especially in the
short run and when competitive pressures are low. Nevertheless, we predict
a positive correlation between complexity and polycentric governance due
to the greater effectiveness of polycentric governance under conditions of
complexity. The comparison between Han China and ancient Rome provides
insight into one possible mechanism linking greater governance effective-
ness to a greater likelihood of implementation: centralized States have both
a capacity and an interest in combating the emergence of complexity, as the
Han Chinese State so vigorously did. Polycentric States, on the other hand,
are unable to resist social complexity, especially under competitive condi-
tions. All in all, the comparison between Han China and ancient Rome sup-
ports our hypothesis.

CONCLUSION

The model developed earlier in this paper offers an information-theoretic,

functionalist explanation of the emergence of polycentric governance struc-
tures. It identifies a critical force that could drive a State toward a decentral-
ized set of competing jurisdictions, namely the difficulty of governing an
increasingly complex society. The same model explains why centralized
states might resist increasing complexity by suppressing entrepreneurial
activity, technological progress, and cultural diversity. The direct control

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 106 Dries Daems and Alexander Schaefer

paradigm can only be maintained when such sources of complexity are

kept in check.
However, this is a highly abstract model that identifies only one funda-
mental relationship that affects governance institutions: complexity and
polycentricity. Is this relationship strong enough to make a difference amidst
a host of other causal factors? Does this highly abstract model aptly describe
real-world processes? Our analysis, supported by a comparative case study
of ancient Rome and Han China, suggests an affirmative answer to these
questions. The Han Chinese State actively suppressed private concentrations
of power and new technologies that might have disrupted the balance of
power. By curtailing social complexity, the central State was able to reduce
unpredictable dynamism, which might force a delegation of power to local
leaders. The ancient Roman State, by contrast, lacked the capacity to suppress
sources of complexity and, consequently, was unable to achieve or maintain
the degree of centralized power exhibited by the Han State.14
An important point has been neglected throughout this chapter, namely
the dual role of technology as an impetus to greater social complexity and a
tool for increasing State capacity. Communication technologies, for instance,
increase the interconnectedness of various nodes in a society, and this, in
turn, increases the dynamism and volatility of social activity. At the same
time, such technologies make it far easier for a centralized State to receive
and transmit information. Some technologies, such as facial recognition
technology, will likely enhance the capacity of States to acquire information
and thus manage their populations. Others—for instance, social media or
cryptocurrencies—will have the opposite effect, contributing more to social
complexity than State capacity. The overwhelming trend, some suggest, is
for social complexity to grow faster than State capacity (van Creveld 1999,
377–94). If this is correct, our theory has a clear prediction: States seeking to
maintain or reprise centralized control will suppress economic, technological,
and cultural dynamism.

NOTES

1. We would like to thank David Schmidtz, Vlad Tarko, Justin Bruner, and Thomas
Christiano for their comments on the chapter. In addition, the chapter took shape with
the help of feedback from Pablo Paniagua, Matthew Jeffers, Mario Juárez García,
Jan Vogler, Abigail Devereaux, Cameron Harwick, and Anthony Gill. We also thank
Danai Kafetzaki for help with the analysis and figures.
2. Importantly, while it is convenient to anthropomorphize the State and describe
this dilemma as a choice faced by some unitary actor, unconscious forces and his-
torical contingency are often more important than deliberate choice. Although it is

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 The Problem of Complexity and the Emergence of Polycentric Political Order 107

consistent with our model for a political leader to consciously choose between control
and complexity, we do not claim this is the primary mechanism by which polycentric-
ity typically emerges.
3. We elaborate on two possible mechanisms below (16–17).
4. We do, however, leverage the limited data available to provide a robustness
check on our empirical case study. In particular, we’ve relied upon the Seshat data set.
We use some of the indicators identified in the data set as proxies for polycentricity,
while others explicitly measure social complexity. Our hypothesis is that these indica-
tors should correlate, which is, indeed, what we find. More details on this large-scale
data analysis can be found at: https://zenodo.org/records/10526926.
5. See also Stephan, Marshall, and McGinnis (2019, 41).
6. Ahmed and Stasavage (2020) make a similar point about information flows, but
instead of highlighting polycentricity, they emphasize representative or council-based
governance. Similarly, Vogler (2023) analyzes the effectiveness of imperial rule in
terms of informational asymmetries that exist between local and centralized gover-
nance units.
7. The idea of discovering new information rather than merely utilizing extant
information is an animating idea in recent work on experimentalist governance (Sabel
and Zeitlin 2012; Eckert and Börzel 2012). On the relationship between interactions
and knowledge, see also Paniagua (2018).
8. Some are far less sanguine about the epistemic value of democracy (Brennan
2017; Somin 2013). But see Christiano (2015).
9. The two processes outlined in this paragraph—Tiebout competition and demo-
cratic choice—align with Hirschman’s (1970) two famous modes of organizational
reform: exit and voice. The competitive, polycentric view of democracy outlined here
also coheres nicely with Robert Dahl’s concept of “polyarchy,” though Dahl mentions
its competitive or epistemic properties only in passing (e.g., Dahl 1984, 230).
10. In this sense, polycentricity is closer to Dahl’s “polyarchy” than it is to pure
democracy (Dahl 1984).
11. It is quite possible, in fact, that the polycentric governance technology exhibits
increasing effectiveness as complexity increases.
12. See also Dio Chryostomum 35.15 2006, 35.15, 405–07.
13. For example, according to Pliny the Elder, L. Tarius Rufus lost a sizeable
fortune in his property dealings. See Pliny the Elder’s Natural History 33.135 and
18.7 (discussed in Morris 2015, 57). Marcus Licinius Crassus acquired much of his
fortune through the provision of firefighting services. His tactic was to arrive with
his brigade at buildings already ablaze and offer to extinguish the fire only under the
condition that the owner would sell him the property at a rock-bottom price (Plutarch
and Perrin 1916, 317–19).
14. It’s worth noting that our story further corroborates a documented empiri-
cal connection between social complexity and higher levels of local or individual
autonomy (Maurya and Sahu 2022; Ahmed and Stasavage 2020).

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 108 Dries Daems and Alexander Schaefer

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 Chapter 5

Whither Stability? Polycentric

Democracy and Social Order

Pablo Paniagua and Kaveh Pourvand

INTRODUCTION: THE TWILIGHT

OF LIBERAL DEMOCRACY

Since Aristotle (1984) warned that a republic could degenerate into a democ-
racy, which, in turn, could degenerate into despotism, political philosophy
has been concerned with the issue of institutional and political stability. In
simple terms, the challenge of political stability relates to the notion of hold-
ing a society or a political order together, with some degree of cohesion and
coherence, concerning significant collective action challenges despite com-
plexity and diversity (Enroth 2022; North et al. 2009). In other words, “the
problem of social order arises from a recognition of societal complexity and
diversity, whence the question of what makes complex and diverse societies
hold together” (Enroth 2022, 1–2). This problem “is tied to an awareness of
a seemingly new kind of society characterized by irreducible heterogeneity”
(2). This perennial question of how to stabilize a just regime has been height-
ened with the emergence of the Weberian State that monopolizes the power
of legitimate coercion and thus anchors society under a single, bureaucratic
structure of governance—which we shall call a form of “monocentric” gov-
ernance (Buchanan 2000; Weber 2019/1920; 1994).1
The great power of the contemporary state means it may be a vehicle for
great good if governed by a just regime, but it also may be hugely dangerous
if its power is abused (Acemoglu and Robinson 2019; V. Ostrom 2007/1974;
Tocqueville 2012/1835). As a political form in practice, the nation-state has
given us both liberal democracy and fascist and communist totalitarianism
(Hayek 2011/1960; 2007/1944). These political risks and dangers concerning

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the concentration of political power for the sake of stability have been high-
lighted neatly by J.R.R. Tolkien’s famous quote from his celebrated novel
The Lord of the Rings: “One Ring to rule them all, One Ring to find them,
One ring to bring them all, and in the darkness bind them.” The stakes, then,
couldn’t be higher in ensuring that the power of the contemporary State is
used justly.
Many political philosophers stress that the solution to the “stability prob-
lem” is socializing and coalescing citizens into strongly affirming liberal
democratic values (Rawls 1996; Macedo 1990; Guttmann and Thompson
1998). Virtuous citizens will then maintain a just democratic state. However,
this raises the problem of achieving and maintaining de facto consensus in
dynamic societies characterized by profound heterogeneity and changing
beliefs (Gaus 2011; Sen 2009; Weingast 1997). The probability of stabilizing
democracy today via consensus on a substantive set of liberal democratic
values seems low in hyperconnected and globalized modern societies.
The stability question has become pressing, particularly in recent years, as
liberal democracy has been threatened by the “illiberal populisms” of both left
and right (Mudde 2021; c.f. Abts and Rummens 2007; Eatwell and Goodwin
2018; Levitsky and Ziblatt 2019; Paniagua and Vergara 2022). These “illib-
eral democratic” tendencies question whether a liberal social order governed
by a monocentric State will endure over the long run (De la Torre and Srisa-
nga 2021). Anne Applebaum (2020) has even suggested that we face the “twi-
light of democracy,” under which democratic and self-governing practices are
deteriorating, giving rise to authoritarian and despotic regimes worldwide.
As we can see, recent events point to the inherent difficulty of relying on
citizen virtue to stabilize centralized, liberal nation-states: it is a high-risk
and fragile strategy. If, for whatever reason, a significant portion of the
electorate—which need not be more than a numerical minority of the popu-
lation—embrace some variant of “illiberal democracy,” then the stability of
the whole regime is put into doubt. Consider, for instance, the case of Italy
during the rise of fascism (1919–1922), in which a minority—but vociferous
and violent—group of the population helped pave the way toward an illiberal
and populist dictatorship (Scurati 2021).
Moreover, two other considerations suggest that socializing the citizenry
into a homogenous set of values would be an undesirable solution to the
homogeneity problem, even if it were feasible. First, there are epistemic
benefits to diversity. Pluralism and contestation about the good life and jus-
tice—including liberal conceptions of these values—allow us to discover
valuable social practices and doctrines. If a diverse social order is analogized
to a laboratory, then competing conceptions of the good and right may be
seen as falsifiable hypotheses that are subjected to testing (Gaus 2021; Hayek
2011/1960; Mill 2006/1859; Muldoon 2016). Second, the only feasible ways

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of engendering such consensus may be oppressive to those experimental

groups outside it. Even liberal states have a poor record of trying to integrate
minorities and diversity.2
We propose a different institutional solution to the stability problem—poly-
centric democracy. Such a regime is characterized by plural and overlapping
decision-making centers, each of which has some degree of autonomy from
the others and none of which reigns supreme over all the others. We argue
that such a novel form of democracy might prove more stable amidst deep
disagreement, including on liberal and democratic values. Here is our essen-
tial claim: polycentric democracy is a better risk management strategy than
a monocentric State. Suppose the citizens of one particular “decision-making
node” adopt “non-liberal” or “undemocratic” values. In that case, that gov-
ernance challenge does not threaten the stability of the whole system, whose
institutional support comes from multiple governance centers. This renders
a polycentric system more resilient to diversity and changing views than a
monocentric one, just as a variegated ecology is more robust than a mono-
culture (Ostrom 2012a). Such a regime can then afford to be more flexible
and tolerant of diversity and heterogeneity than a monocentric one. Greater
toleration allows for more “experiments” in forms of life and solutions to
social problems, facilitating social learning from which the whole regime
can benefit. It also avoids the domination and suppression required to ensure
all citizens conform to a particular set of liberal-democratic values. This, we
argue, ultimately helps social orders attain dynamic flexibility and political
resilience through time, which might be a better form of political stability
than non-dynamic ones.
The rest of this chapter will proceed as follows: Section 2 draws on Max
Weber and Alexis de Tocqueville to highlight two critical features of the
monocentric contemporary state: its drive for uniform and hegemonic legis-
lation and its displacement of intermediate associations (i.e., civil society).
We argue that these two features of the contemporary state greatly heighten
the risk of political instability, particularly in light of the deep and pervasive
disagreement that affects contemporary societies. Section 3 outlines our poly-
centric alternative. It demonstrates how the “nested resilience” of polycentric
democracy makes it more robust in the face of disagreement and strengthens
anti-fragile system stability by exposure to disagreement and low-intensity
conflict. Section 4 reflects on the broader benefits of polycentric democracy,
particularly concerning the experimentation of utopian ideas. Section 5 con-
tains concluding remarks.

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1. ONE SOLUTION TO RULE THEM ALL? A WEBERIAN

AND TOCQUEVILLIAN CHARACTERIZATION
OF THE MONOCENTRIC STATE

The theoretical focus of contemporary philosophers has been principally, if

not exclusively, on the monocentric State. They have been concerned with
either legitimizing the activities of a centralized State or offering normative
prescriptions that such a State is supposed to implement. There has been
a general neglect of other forms of political authority, particularly local
self-governance (Brennan 2017). Naturally, the monocentric State has domi-
nated intellectual reflections on the question of stability (e.g., Rawls 1999, pt.
III). Political philosophy has fallen into a conceptual mistake of conflating
the idea of government with the governance challenge. Government, in the
conventional liberal sense of a centralized nation-state, is only one of a range
of possible institutional solutions to the challenge of governance.3
If we are to outline an alternative to an institution, it is helpful first to
define that institution properly. Our definition of the institution we seek to
improve can then be used to formulate our desired alternative. That is the
purpose of this initial section. Drawing on Weber and Tocqueville, we iden-
tify two critical features of the monocentric state: legal uniformity and a ten-
dency to displace intermediate associations. We will then outline how these
monocentric State features combined with contemporary societies’ pervasive
disagreement could produce institutional fragility and, ultimately, political
instability, given irreducible disagreement. Our definition of the monocentric
State and diagnosis of its problems will then act as a point of contrast for our
description of a polycentric alternative in the subsequent sections.

1.1. Weber on the State: Uniformity and Rationalization

Max Weber (2019/1922; 1994) recognized that modernity ignited a process
of rationalization under which different fields of human life become domi-
nated by standardization, impersonality, specialization, and enhanced social
control (Brubaker 1991, 32–35). The quintessential process of rationalization
was the rise of the monocentric nation-state and its bureaucratic apparatus
(Weber 1994). The contemporary State, according to Weber, has the follow-
ing characteristics: (i) the claim to a monopoly of the legitimate use of force
within a given territory; (ii) centralization of the material and conceptual
means of rule; (iii) planned distribution of the powers of command among
various entities; (iv) an administrative and legal order that claims binding
authority, and (v) a bureaucratic apparatus—with an administrative staff—
oriented to the enforcement and achievement of the political order.4 This

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hierarchical structure allows the state to bring uniformity to social life based
on formal-procedural rationality (Zweckrationalität).
Weber believed this rationalization was necessary to bring predictabil-
ity and standardization to our social interactions. He sided with Hobbes in
recognizing that the nation-state was required to impose order on the social
world (Weber 2019/1922).5 Indeed, our contemporary ideal of equality under
the law arose against the background of a Weberian State with the capacity to
legislate and enforce the law uniformly in a territory.

1.2 Tocqueville on the State: The Crowding Out of

Intermediary Associations
Like Weber, Alexis de Tocqueville (2002/1835) stressed uniformity of leg-
islation as a critical feature of the contemporary State. For Tocqueville,
the demand for uniformity was part of the demand for civic equality under
democracy. If all citizens had the same standing before the State, they
should be treated uniformly. In a democratic age, any legal polycentricity
would constitute either privilege for some or neglect of others and would be
unacceptable.
Tocqueville stressed that the democratic State’s drive for legal uniformity
would likely displace or subsume all independent intermediary associations
between itself and the citizenry (V. Ostrom 2007/1974). To the extent that
intermediary associations were self-governing associations that could adopt
differing governance rules, they threatened legal uniformity. Tocqueville
famously worried that this displacement would result in “soft despotism.”
Stripped of the ability to solve their own problems through intermediary
associations and bottom-up collective action, citizens would lose their capac-
ity for personal and associational agency, becoming passively reliant on the
State, thus eroding citizens’ democratic and political skills.6
What is essential for this chapter is that the displacement of intermedi-
ate association by the State heightens the risks of political instability in two
senses. First, to the extent that the central State subsumes all other sources
of authority, the health of all other local authorities and institutions depends
on the health of the overarching institution. If the central State is captured
by bad actors or a poorly motivated electoral coalition, this threatens to sink
the whole ship of the political and social order as they were. This looks to be
unwise risk management, a case of putting all the proverbial eggs into one
basket. It is also worth stressing that, in the case of an electoral coalition, it
doesn’t require more than a minority of the electorate to take the whole polity
in an undesirable direction.
Let us assume, at least for the sake of argument, that in the United States,
there is a future vote for a presidential candidate with significantly less

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respect for democratic and liberal institutions that might endanger liberal
democracy in America; similarly, imagine a future referendum in Europe
in which some European voters decide to leave the European Union, which
might constitute a potential defection from any reasonable interpretation of
liberal democratic and free trade economic values. In the hypothetical case
of the United States, you need only 25 percent of U.S. citizens of voting age
to opt for an authoritarian candidate to endanger the system.7 In comparison,
in the case of Europe, you might need a meager 37 percent of voters to chal-
lenge the existing political order.8 Second, how citizens engage with politics
changes under a monocentric state. Politics has become more of a spectator
sport. As Elinor Ostrom puts it:

Citizens are effectively told that they should be passive observers in the process
of design and implementation of effective public policy. The role of citizenship
is reduced to voting every few years between competing teams of political lead-
ers. Citizens are then supposed to sit back and leave the driving of the political
system to the experts hired by these political leaders. (E. Ostrom 2000, 12)

But this has the following important implications. Demands that may have
been met at the local or associational level under a more decentralized social
order are now placed at the feet of the monolithic central State. This raises
the stakes, particularly in a diverse society, since stability now depends on
the central State’s capacity to meet heterogeneous political demands at differ-
ent scales and sizes, not all of which may be reconcilable with one another.
In other words, the monocentric State has the potential risk of severely
marginalizing citizens’ efforts and collaboration at better solving their collec-
tive action problems at the local level, thus “crowding out” civil society and
other forms of local governance that might fit better the size and scale of the
problem at hand (Ostrom 2000; Paniagua 2022). To make this point in more
concrete terms, consider some contemporary and debated issues in which
monocentric States and monocentric forms of policymaking have crowded
out (or marginalized) efforts of citizens in crucial areas such as education and
school choices environmental policy, pandemic governance, and the defini-
tion of marriage, to mention a few.
This marginalization explains at least part of the distrust, polarization, and
populism we see in liberal democracies today (Paniagua and Vergara 2022;
Rajan 2019). Even a well-meaning centralized State can please only some of
its myriad constituencies, leading to resentment and populist pushback from
those who feel their demands are unmet or unrepresented. These weaknesses
imply that the monocentric State is poorly placed to deal with today’s primary
source of political instability: deep and pervasive disagreement, which we
shall discuss in the following sub-section.

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1.3 Deep and Pervasive Disagreement

In the latter part of his career, John Rawls’s signature contribution to political
philosophy was to lay stress on the problem of deep disagreement. The bur-
dens of judgment involved in considering the truth of complex matters, such
as religion, ethics, the good life, and justice, imply that even good-faith actors
will disagree fundamentally over these core matters.9 Furthermore, this is not
merely an incidental or contingent feature of liberal democratic societies. It
is the “natural outcome of the activities of human reason under enduring free
institutions” (Rawls 1996, xxvi). The freedom of expression and association
protected by liberal societies give rise to this diversity. This, Rawls saw, poses
a profound challenge in terms of stability: How could liberal democracies
endure given this deep disagreement, especially when some citizens come to
reject cardinal liberal values, such as individual autonomy?
Rawls’s initial response was to refashion his theory of justice as a political
principle that citizens could affirm for diverse reasons as part of an overlap-
ping consensus (Rawls 1985). However, by the end of his career, Rawls
stressed that disagreement extended to justice itself, and the consensus of
citizens should be limited to a commitment to public reason, the notion
that coercive laws should be justified with reasons all citizens could accept
(Rawls 1997). However, as the recent decade has shown us, it is hard to see
why we will agree on how to conduct politics if we disagree on practically
everything else. Indeed, many philosophers have objected to Rawls’s pub-
lic reason proposal (Muldoon 2016; Thunder 2006).10 Many contemporary
political philosophers stress that disagreement is pervasive and extends to all
domains, including the basic conceptual categories we use to understand the
world (Thrasher and Vallier 2018; Muldoon 2021). The search for underlying
consensus amidst this diversity looks quixotic at best; thus, “looking for a
hidden consensus behind the curtain of reasonable disagreement might be a
dead end” (Müller 2019, 85).
Moreover, the challenge is even more profound if the stability problem
is viewed in diachronic or dynamic rather than static terms. From a static
perspective, the challenge is to find some underlying consensus between a
diverse citizenry. Even if those challenges were met, the consensus must
maintain itself over time, given changing beliefs and circumstances, includ-
ing unforeseeable and unpredictable new forms of disagreements.11 Such
a “static” fixed-point stability would look mightily fragile in the face of
change (Thrasher 2020).12 Hence, these crucial considerations suggest it is
hard to see how we could form and maintain a consensus on moral values,
even liberal-democratic ones, without the “oppressive use of state power”
(Rawls 1996, 37).13 In other words, the social order seems to face a critical
tradeoff: either we attain static stability at the expense of coercively reducing

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disagreement and diversity, or we give up on large consensus and fix stability

by allowing deep disagreement and diversity to persist.
As the recent political events from 2016 to 2021 worldwide have shown
us, deep disagreement combined with the two risks inherent in monocen-
tric regimes do not bode well for the liberal-democratic state. Suppose the
health of a liberal-democratic polity depends on the central State remaining
liberal-democratic because it subsumes other associations, but deep disagree-
ment extends to liberal-democratic values. In that case, there is always the
possibility that a minority of “illiberal” voters capture the State and take it in
an illiberal direction. Suppose deep disagreement leads to a radical diversity
of often mutually exclusive political demands pressed against a central State.
In that case, it is almost certainly the case that many constituencies in society
will be deeply disappointed by the outcomes of the political process. Either
quarrels, disputes, and deep disagreements will constantly arise amongst
voters, expressing themselves in polarization, fragmentation, deep dissatis-
faction with the monocentric state, and eventually, a crisis of legitimacy and
political disaffection that could take society down the path of volatile forms
of populism, violence, and civil unrest.
In other words, deep disagreement plus a political system requiring uniform
“one-size-fits-all” solutions is a recipe for political fragility. This fragility has
arguably exhibited itself in practice in the recent decade, as liberal democra-
cies struggle to respond to polarization among their populace (Paniagua and
Vergara 2022), which might explain why some scholars are concerned that we
might be reaching the “twilight of democracy” (Applebaum 2020). Having
defined the constitutive features (and significant risks) of the monocentric
State and its fragility in the face of deep disagreement, we now turn to outline
our polycentric democratic alternative.

2. THE IDEAL OF POLYCENTRIC DEMOCRACY

Following the insights of Elinor and Vincent Ostrom (E. Ostrom 1972;
V. Ostrom 2010), M. Polanyi (1951), and Aligica and Tarko (2012), we can
conceive of polycentric democracy (hereafter: PD) as a political system or
arrangement that possesses the following properties: (i) an overarching and
abstract system of rules (i.e., a constitution); (ii) multiple governing authori-
ties at different scales; (iii) processes that allow for competition, cooperation,
exit and entry procedures, and conflict resolution among the decision centers;
and (iv) considerable autonomy for each decision-making center to make and
enforce rules within a circumscribed domain of authority (see also Ostrom
2005).14 Thus, polycentric democracy is one instance of a broader genus

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of polycentric systems. The market economy and the scientific process are
other examples.
In the previous section, drawing on Weber and Tocqueville, we identified
legal uniformity and the displacement of intermediate associations as the hall-
marks of the contemporary monocentric state. Polycentric democracy does
not represent so much a repudiation of the modern state as a reconceptualiza-
tion of it away from monocentricity (Thiel et al. 2021). The equality-driven
demand for legal uniformity now finds expression at the “meta” level in the
abstract rules that govern the interaction between decision-making centers
and resolve their disputes. However, legal polycentricity is given significant
latitude over uniformity within the constraint of these meta-rules. In what fol-
lows, we argue that such a decentralized state regime is robust and anti-fragile
in the face of deep disagreement. That is to say, it can not only withstand
deep political contestation and disagreement, but it can also potentially be
strengthened by it (Ostrom 2012a; Taleb 2012; Taleb and Douady 2013).15

2.1 Wither Stability? Political Stability as

Nested Resilience
One reason to think that polycentric democracy can be anti-fragile in the face
of deep disagreement and diversity is that this is true of polycentric systems
more generally. Even though political theorists treat diversity and disagree-
ment as problems, contemporary social science and epistemology have
shown that diversity and polycentricity can fruitfully combine to produce
various benefits. These include practical problem-solving (Hayek 2011/1960;
Page 2007), moral innovation and progress (Gaus 2017), resilient ecosystems
(Ostrom 2012a), and radical freedom of association (Kukathas 2003), to
mention a few. The critical feature of polycentric democracy, which makes
it amenable to stability amidst diversity, is its nested resilience, to which
we now turn.
Polycentric systems can generate nested arrangements and emergent
properties rather than forming just decentralized or fragmented arrangements
that solve only small but separate problems (Ostrom 2012b; Paniagua 2022).
Simply, “nestedness” or “nested structures” could be interpreted figuratively
as Russian dolls. There are small social or political orders within other larger
ones, such that each local set of rules and incentives aligns with the rules and
objectives of other larger scales. For example, Marshall (2008, 77) concep-
tualizes “nested arrangements” as cooperative systems that encourage the
autonomous functioning of smaller, more exclusive units operating within
broadly agreed-upon principles.
“Nestedness,” then, is an institutional property in which essential gov-
ernance functions—like monitoring, sanctioning, and the enforcement of

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rules—are organized into multiple and overlapping layers of governance,

enabling the system to generate either emergent properties or a nested solu-
tion to complex (multilayered) problems (Paniagua 2022; Paniagua and
Rayamajhee 2023). Consider, for example, how the coordinative capacity
of the market and its ability to generate social prosperity are emergent and
unintended properties of the system (Hayek 2011/1960; Lewis 2012) and how
the possibility of local self-governance is an emergent property of polycentric
systems that follow certain design principles (Lewis 2021; Ostrom 1990).
E. Ostrom recognized that some complex externalities—such as climate
change—could only be managed through a bottom-up and concerted effort at
multiple scales of governance and, thus, in a “nested” manner (Ostrom 2012;
Paniagua and Rayamajhee 2023).
Under a polycentric democracy, we do not try to deliberately stabilize the
whole system through an ex-nihilo conscious, rational consensus on our pre-
ferred conception of liberal-democratic values. Macro-level political stability
is achieved indirectly as a side effect of the efforts of many different (and
decentralized) political units, each seeking to maintain their political stabil-
ity at lesser levels. In other words, overarching stability is the changing and
emergent product of myriad micro-level adjustments by the many different
decision-making centers to the stability challenges they face. This “diffuses”
the macro-level stability challenge by solving it not as a single, unitary
problem but as a “nested” problem from the bottom-up. Hence, multi-level
flexibility, adaptation, and competition are crucial for systemic-level stability
(Ostrom 2012).
For example, consider the restaurant industry. Such an industry looks sta-
ble and thriving at the systemic level. However, this higher-level stability is
attained through instability at smaller scales (such as regional, local, or street
levels), where millions of restaurants go bankrupt monthly (Taleb 2012).
Similarly, the aviation industry becomes ever more stable at the systemic
level, thanks to the risk of airplane crashes. Airplane crashes are catastrophic
and undesirable events that can bring entire companies to bankruptcy. Yet
when they occur, they are leveraged as “vital information” at the systemic
level, becoming the “epistemic fuel” that ignites the industry’s adaptation
and improvement process. The aviation industry has successfully used data
about actual failures to improve flight safety 139-fold over the last sixty
years (Johnson and Gheorghe 2013). Again, industry-level stability is attained
thanks to the dynamic adaptation of different units at multiple scales and by
fragmenting and tackling other aspects of the problem at various levels.
The principle applies as well with buildings that can attain dynamic stabil-
ity in the face of earthquakes and other shocks (e.g., wind) by the fact that
there are minor micro-movements and oscillations at different scales that help
diffuse the shock throughout different and decentralized areas (Reitherman

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2012). Dampers are strategically placed in the building structure to control

floor vibrations and displacement, mitigating systemic failure risk. To further
enhance the building’s systemic stability, engineers use clusters of various
seismic vibration control technologies at different scales (ibid., chapter 9).
Forest fires serve similar purposes in biology and ecosystems. By destroying
some trees (local-level damage), other trees and desirable vegetation flourish
better, thus increasing systemic stability (Certini 2005).
It has been recently argued that complex externalities, such as mod-
ern pandemics, banking instability, and climate change, are complex and
multi-layered challenges that could be better managed through nested and
polycentric arrangements (Paniagua 2022; Paniagua 2020; Paniagua and
Rayamajhee 2023). In all these examples, we can see different ways of apply-
ing the principle of “nestedness” or “nested governance” (Ostrom 2012b;
Paniagua 2022; Walloth 2016).16 Moreover, “nestedness” allows management
or governance systems to be constantly scaled up (or scaled down) appropri-
ately to better deal with and “match” the scale of the problems they aim to
solve, enhancing efficiency (Tarko 2017).
Nestedness then unpacks apparently unitary and complex problems into
multi-level smaller problems to tackle the differing aspects of the issue at the
most appropriate scale of collective action (V. Ostrom 1994). This helps to
solve complex problems from the bottom up in an ascending matter, tackling
different aspects and fragments of problems according to their scale and size
(Paniagua 2020). Nested governance, then, in the polycentric democratic
system, can be explained as “the eventual result of larger, more inclusive
organizational [political] units emerging from, and then ‘nesting’ . . . [within]
smaller, more exclusive units that manage to self-organize sooner. Smaller
organizations thus become part of a more inclusive system without giving up
their essential autonomy” (Marshall 2005, 47).
Let us now consider how nested resilience responds to the challenge of
deep disagreement. The most obvious way it does this is by lowering the
political stakes. No longer is it the case that one central authority subsumes
all others. An “illiberal” turn by a portion of the population does not threaten
to “sink the whole ship,” as it were. Furthermore, political demands now
find expression in multiple jurisdictions rather than solely or mainly in the
central state. Politics thus becomes less of a zero-sum, “winner-takes-all”
game. My faction attaining a political victory does not imply your faction
having to lose since you can still win in another political jurisdiction. One of
the key causes of polarization and hostility in politics is at least diminished.
As Muller puts it:

[Polycentric democracy] has the advantage that, in letting different polities fol-
low their own evaluative standards, it also succeeds in defusing disagreement

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on a macro-level. Defusing “deep disagreement” is again a side effect of letting

polities discover new “ways of living” [in a nested manner]. . . . Giving (deeply)
diverse room for testing their ideas should considerably relax the tensions of
society and thus lead to more harmony within society (Müller 2019, 141, 147).

An additional benefit of polycentric democracy, particularly for liberal demo-

cratic political elites, is that it is more likely to provide prompt signals of
disaffection and discontent with, or otherwise rejection of, liberal-democratic
values from the citizenry since these sentiments can be expressed forthrightly
at myriad local levels. Many more potential canaries exist in the political and
social coal mine under a polycentric democracy. This is beneficial because
elites will be able to respond sooner to discontent if they become aware of it
sooner. Consider what a shock both the Brexit vote and the election of Donald
Trump in 2016 were for the Anglo-American political class. Arguably, these
landslide results occurred not so much because elites ignored discontent, but
because they were unaware of it locally.
Additionally, under a polycentric democracy, there are multiple jurisdic-
tional flora to experiment with potential policy solutions that could alleviate
the grievances of the dissatisfied segments of the population. Others can later
adopt a successful resolution of the issue in one jurisdiction. Just as local fires
strengthen a forest’s systemic resilience to fire and plane crashes make the
air transportation system safer, so would allowing disagreement to destabilize
micro-level jurisdictions improve, through time, the system-level stability of
a polycentric democracy. In this sense, a polycentric democracy is anti-fragile
through a process of nested governance (Paniagua 2020, 2022).

3. THE SYSTEMIC BENEFITS OF

POLYCENTRIC DEMOCRACY

Leveraging diversity and nestedness under a polycentric democracy to

achieve stability has more comprehensive benefits. First, it avoids assimila-
tion. A polycentric democracy can allow considerable heterogeneity on sev-
eral important dimensions, including education, religion, social organization
forms (consider how the Amish society differs socioeconomically from the
broader U.S. population), and language. It thus avoids the repression and
social tension accompanying attempts to assimilate the whole population into
a moral and cultural consensus. Additionally, under a polycentric democracy,
political units can enable experimentation with different normative visions
and conceptions of the good life. These can be tried on a small scale or at
local levels and, after that, be copied, contested, improved, or scaled up if
other people desire them after they see them in action. This system of “small

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scale bets” and “small scale prototypes” helps us explore what institutions
work in practice and reduces the significant risk accompanying system-wide
social engineering.
Consider, for example, three famous normative institutional propos-
als: Rawls’s (1999a) notion of “property-owning democracy,” Nozick’s
(2013) “libertarian utopia,” and Habermas’s (1996) proposal for “deliberative
democracy.” These three proposed systems would require substantial changes
to the prevailing institutional regime in liberal democracies—welfare state
capitalism. They thus involve very high risks and irreducible uncertainties
by tweaking a significant portion of existing socioeconomic regimes. The
problem is not simply that these proposals may turn out to be less just than
anticipated, but that they might be significantly worse than the status quo, as
attested to by the many failures in radical social engineering in the twentieth
century.17
The advantage of polycentric democracy resides precisely in minimiz-
ing these “normative risks.” Radical normative visions can be subject to
experimentation at more minor scales, in which we can later see their real
consequences at lower political and social costs. Political entrepreneurs and
philosophers will deploy their own (and no one else’s) human capital, money,
effort, and intellect to make their socioeconomic plans work and demonstrate
their desirability to the rest of the citizenry. Under these circumstances, failure
neither imperils the whole system nor undermines or threatens the lives and
well-being of a large portion of the population. Mistakes are comparatively
small and contained. Thus, they generate vital information and evidence to
learn from, so their damage is mitigated while social learning is maximized.
Only in such a manner can radical political and economic ideas be tried and
tested in practice while protecting the entire system from downside risk and
systemic failure.
Consequently, under a polycentric democracy, we could gradually and
slowly alter our existing institutions and socioeconomic systems according to
how experiments have worked out in practice and the various revealed prefer-
ences of citizens and their changes in the face of new proposals. In Popperian
terms, polycentric democracy constrains the utopians to engage in piecemeal
social engineering (Popper, 2002). This minimizes the risk of moral, popu-
list, and political catastrophe, a vital risk that nation-states have often failed
to contain in the last centuries (Mudde 2021; Rummel 1997; Scurati 2021).18

4. CONCLUDING REMARKS

We noted that the monocentric liberal-democratic state’s drive for legal uni-
formity and its displacement of intermediate associations mean its long-run

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 128 Pablo Paniagua and Kaveh Pourvand

stability is a static and high-risk affair. The health of the whole society depends
on the health of one overarching institution, which would be the site of many
political demands, often incompatible ones because these demands could not
find expression at lower institutional levels. Once we additionally consider
the problem of deep disagreement, then the monocentric liberal-democratic
state looks much more fragile than many have assumed. This is how we have
diagnosed the problem of populism and polarization affecting contemporary
liberal democracies.
We then outlined our alternative: polycentric democracy. The great advan-
tage of this approach is that decentralizing political power is a better risk
management strategy. We are no longer betting the health of the whole society
on one highly important institution in the central state. Dynamic stability is
the function of the operation of plural and overlapping institutions. This is
not only more robust to an “illiberal” turn among segments of the popula-
tion. Additionally, by allowing a more significant expression of political
discontent at multiple levels, this system gives many more advance warnings
of discontent and political dissatisfaction, and by allowing multiple jurisdic-
tions, it will enable more variegated attempts to reformulate policies to try to
resolve this discontent at their proper size and scale.
We propose polycentric democracy as a reasonable and pragmatic solution
to the challenges of polarization and populism. It would prove helpful to con-
clude by making some remarks as to how this solution may be implemented.
We do not conceive of polycentric democracy as an institutional blueprint
to be realized wholesale. The question, then, becomes one of which changes
would count as a marginal move toward such a polycentric regime. The
institutions that come closest to a polycentric democracy today are federal
systems, such as Swiss institutions. However, existing federal institutions
fall short of a polycentric democracy for two key reasons. One, jurisdictional
boundaries are usually fixed, or significant restrictions exist on creating
new jurisdictions. Therefore, desirable policy changes would make it easier
for citizens to develop new jurisdictions, outline conditions under which
those jurisdictions can deviate from the central state’s rules, and provide
conflict-resolution guidelines.
Finally, the hope is that others will follow one set of policy changes in
this direction in an iterative fashion. After some new jurisdictions form, an
unanticipated conflict between them and the state might arise, creating the
opportunity to clarify conflict resolution procedures further. Greater clarity
might incentivize the creation of more jurisdictions, which would create
further challenges that need resolving. Still, successfully resolving those chal-
lenges would make the creation of new jurisdictions even more accessible,
and a positive cycle would ensue. This gradual transition toward polycentric
democracy might be the most reasonable and resilient way forward to save

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 Whither Stability? Polycentric Democracy and Social Order 129

liberal democracies from polarization, political disaffection, deep disagree-

ment, and their catastrophic demise.

NOTES

1. “Monocentrism” or “monocentricity” is understood here in a Hobbesian manner

as the form of governance in which there is a single consolidated decision-making
center that has the ultimate authority over all important decisions related to a commu-
nity or group (V. Ostrom 1994). Thus, polycentric governance is distinguished from
monocentric governance by the fact that it lacks a uniquely designated final author-
ity over all important decisions related to the governance of a group or community.
In such an arrangement, the overarching and shared rules can be agreed upon and
enforced by the different decision-making centers themselves, “without an ultimate
center for decision-making” (Thiel et al. 2021, 26).
2. Consider, for example, the Australian state’s policy of forcibly taking aboriginal
children away from their natural-born parents into adoption by white couples. For a
brief discussion, see Kukathas (2003,193).
3. Governance is not government, but rather a process that needs to be maintained
by sets of rules and institutional arrangements so as to achieve certain political and
social goals such as order. Thus, governance is here defined as a “process by which
the repertoire of rules, norms, and strategies that guide behavior within a given realm
of policy interactions are formed, applied, interpreted, and reformed. A useful short-
hand expression . . . is that ‘governance determines who can do what to whom, and
on whose authority’” (McGinnis 2011, 171).
4. We here follow Dusza’s account (1989, 75–76).
5. Though it is worth noting that Weber was famously ambivalent on this issue,
expressing fear that the “iron cage” of bureaucracy would also be a threat to certain
expressive forms of individuality. Under this “authoritative power of the State . . .
the performance of each individual is mathematically measured, each man becomes a
little cog in the machine and, aware of this, his one preoccupation is whether he can
become a bigger cog. . . . This passion for bureaucracy, as we have heard it expressed
here, is enough to drive one to despair. . . . The great question is therefore not how
we can promote and hasten it, but what can we oppose to this machinery in order to
keep a portion of mankind free from this parceling-out of the soul, from this supreme
mastery of the bureaucratic way of life” (Weber 1924/1909, 412–13).
6. Hence his famous lament at the end of Democracy in America: “an immense
tutelary power is elevated, which alone takes charge of assuring their enjoyments and
watching over their fate. . . . It would resemble paternal power if, like that, it had for
its object to prepare men for manhood; but on the contrary, it seeks only to keep them
fixed irrevocably in childhood. . . . It willingly works for their happiness; but it wants
to be the unique agent and sole arbiter of that; it provides for their security, foresees
and secures their needs, facilitates their pleasures, conducts their principal affairs,
directs their industry, regulates their estates, divides their inheritances; can it not take

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 130 Pablo Paniagua and Kaveh Pourvand

away from them entirely the trouble of thinking and the pain of living?” (Tocqueville
2002/1835, Volume 2, Part IV, Chapter 6, 663).
7. To put things in perspective, only 25 percent of U.S. citizens of voting age
opted for Donald Trump: only sixty-two million voters opted for Donald Trump, out
of 245 million Americans of voting age. Total voter turnout was 138 million. Trump
famously lost the popular vote to Hillary Clinton, he but won overall because of insti-
tutional quirks of the electoral system in the United States.
8. Similarly, only 37 percent of the registered British voters opted to leave: the
Brexit vote was seventeen million. This was 52 percent of those who voted in the
referendum but only 37 percent of registered voters (turnout among registered voters
was 70 percent.) Note that the 37 percent figure overstates the support for Brexit inso-
far as not all British citizens who are of voting age and eligible to vote are registered
to do so. The percentage would be even lower if the denominator was the number of
citizens eligible to vote rather than those registered to do so.
9. Indeed, they will even disagree on what constitutes “truth.”
10. The literature is now vast. But for one critique, see Enoch (2015) and the lit-
erature cited therein.
11. Consider who, say, fifty years ago could have predicted the disagreements
in the West today over issues such as: the status of gender and sexuality, abortion,
nationality, migration, vaccinations, etc.
12. Tellingly, the original Rawlsian theory conceived of the problem of how to
stabilize a closed society cut off from the rest of the world. But this stipulation simply
defines away—or assumes a way by mere definition—much of the real-world sources
of instability: immigration, new ideas, international politics, trade, new technol-
ogy, etc.
13. The policies of the Communist Party of China may exemplify this kind of
strategy. They try to maintain political consensus and stability of the social order by
comprehensive state regulation and suppression of news content, internet use, and
cultural content such as films.
14. These decision centers can either be “states within a federal order, free cities—
cities with high degree of municipal autonomy—or special experimental zones. For
lack of a better name, let us call these decision centers ‘polities’” (Müller 2019, 138).
15. A complex adaptive system is anti-fragile when it can not only withstand known
and predictable shocks and stressors, but also learn and improve from unknown
and unpredictable disorders and mistakes, in order to become more malleable, thus
increasing the long-term probability of its survival (Taleb 2012). On the mathematical
definition of anti-fragile consult, see Taleb and Douady (2013).
16. Walloth (2016), for instance, argues that complex systems are nested sys-
tems: systems that enclose other systems and that are simultaneously enclosed by
even other systems at lower scales. According to his theory, each enclosing system
emerges through time from the generative activities of the systems they enclose.
17. The obvious examples of famines in Soviet Russia and Maoist China come to
mind here. But there are many other examples of damaging, though not quite so cata-
strophic, attempts at large-scale social engineering, from authoritarian city planning
to forced villagization. For a series of case studies, see Scott (1998).

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 Whither Stability? Polycentric Democracy and Social Order 131

18. Some readers might object that a monocentric regime with enhanced delibera-
tion is a better way of promoting learning than a polycentric one. Citizens can test
one another’s ideas through deliberation, thereby spotting weaknesses and improv-
ing them. These argumentatively refined normative principles could then be quickly
implemented throughout the whole of society by a monocentric state, without the
messy fragmentation of a polycentric system. While polycentric democracy is open to
deliberation, this is as a complement to jurisdictional variety than a replacement of it.
There are stern epistemic limits to how much we can establish in a priori discourse.
To establish what works, we need to see what works. This requires scope for empiri-
cal experimentation that a polycentric regime can, in fact, provide bountifully but
that a monocentric deliberative regime could do only to a limited degree. To explore
the severe limits of deliberative regimes at promoting factual learning and discovery,
consult Müller (2019, chapters 3 and 7) and Brennan and Landemore (2021).

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&3DJH 6WDJH'UDIW
 Chapter 6

Self-Governance Solutions
to Social Dilemmas
A Polycentric Approach

Vlad Tarko

INTRODUCTION

Tragedies of the commons are the typical example in which self-interested

individual actions do not aggregate into beneficial collective outcomes,
as judged by the community members themselves. They are the main
counter-example to Adam Smith’s logic of the invisible hand, according to
which self-interested consumer and producer behavior in markets leads to
efficient aggregate outcomes (again, as judged by the people themselves).
Gordon Tullock referred to such problems as “social dilemmas,” high-
lighting the prevalence of conflict and the difficulty of solving such issues
purely by means of voluntary cooperation (Tullock 2005). But Tullock also
emphasized that conflict is costly, and “[r]egardless of the outcome . . . the
use of resources for this purpose is offsetting and therefore inherently waste-
ful. Social contrivances for reducing such investment of resources are, on
the whole, desirable” (5). One of the key points made by Vincent and Elinor
Ostrom throughout their work is that self-governance is the fundamental
process by which we can discover such beneficial “social contrivances,”
i.e., institutions for solving social dilemmas.
The reason the invisible hand works in markets but doesn’t in cases
that lead to tragedies of the commons is the lack of capacity to prevent
free-riding.1 In the case of markets, free-riding is unlikely because markets
deal with the exclusion of free riders in private or club goods, i.e., goods
that cannot be obtained without paying. As such, the producers’ incentives
137

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to deliver the goods are aligned with the value of those goods to consumers,
and producers can cover their costs. By contrast, when free-riding is possible,
producers are only paid for a fraction of the value delivered to consumers
(including both paying and free-riding consumers), which lowers the incen-
tives to deliver the goods and often makes it impossible to fully cover the
production costs (leading to reduced supply).
Examples of tragedies of the commons include over-grazing pastures,
ocean over-fishing, depleting groundwater resources, deforestation of com-
munal forests, global warming, under-production of flood protection,
free-riding on public irrigation systems (and lack of contributions to repairs),
traffic jams on public roads with no congestion pricing, shirking and laziness
in worker-managed enterprises (e.g., in universities), under-production in
collectivized communist farms, voter rational ignorance in democracies, the
difficulty of revolutions in autocratic regimes, etc. We can ultimately frame
any social problem as a type of tragedy of the commons in the sense that they
are situations in which it is relatively easy to create the problem (and there
are individual-level incentives to generate the problem), and it isn’t easy to
organize a solution and profit from delivering a solution.
Market failures can also be understood this way because all market failures
have theoretical private solutions: In principle, the involved parties can solve
negative externalities by negotiating the allocation of rights and compensa-
tion schemes (Coase 1960; Paniagua and Rayamajhee 2023). Information
asymmetries can be, in principle, solved by certification markets and repu-
tation mechanisms (Aligica, Boettke, and Tarko 2019; Stringham 2015).
Monopoly power can be, in principle, fought by organizing a countervailing
monopsony power.
In practice, such solutions don’t always work because the transaction costs
involved in organizing on the side of the problem and on the side of the solu-
tion can differ substantially. If it’s easy to pollute but challenging to organize
the Coasean compensation and property rights arrangements that fix pollu-
tion, we end up with an inefficient amount of pollution. If, due to more or less
legitimate privacy and fairness concerns, health insurance companies cannot
discriminate based on various health conditions, we end up with lower-than-
efficient levels of health insurance. If consumers are many, dispersed, and
rationally ignorant, while producers are few and well-organized, we end
up with rent-seeking and regulatory capture that enhances market power.
Furthermore, oligopoly in the product market translates into fewer available
employers, i.e., oligopsony power over their workers. In such circumstances,
if workers can also free-ride on the benefits negotiated by labor unions, the
capacity to fight employer oligopsony with labor union monopoly is dimin-
ished (Olson 1965).

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 Self-Governance Solutions to Social Dilemmas 139

In all such cases, governments appear as a possible solution because (a)

they involve lower organizational costs than the purely private solutions,
and (b) they can eliminate free-riding by forcing compliance. Indeed, in his
“Tragedy of the Commons” paper, Hardin (1969) argued that we only have
two possible solutions: privatization or government control. Considering that
the nature of the examples typically precluded privatization, the argument
was a de facto argument in favor of centralized government control. Vincent
Ostrom was particularly dismayed by Hardin’s paper because it ignored a vast
body of literature created in the 1950s and 1960s on successful communal
(non-state) governance. Nonetheless, Hardin’s paper managed to set the terms
of the debate for decades. The Ostroms would often find themselves in this
kind of battle with simplistic theoretical arguments that ignored the ample
availability of real-world counter-examples (Tarko 2017).
Following the Coasian revolution in law and economics, property rights
economics adopted a more sophisticated argument than Hardin’s (Alchian
and Demsetz 1973; Barzel 2002; Barzel and Allen 2023; Demsetz 1967;
Paniagua and Rayamajhee 2023). At its best, property rights economics opens
the door for explorations of various bottom-up processes by which property
rights regimes are created. At its worst, it is used merely to argue that the task
of government is to set up property rights such that markets can then operate
without free-riding and, hence, solve the problems. This perspective leaves
out the critical political economy question: What incentives and knowledge
does the government have to actually set up a good property rights regime
rather than an exploitative one? Or, in the case of the more simplistic solution
proposed by Hardin, what incentives and knowledge does the government
have to manage a commons properly?
Government solutions of any kind, including setting up property rights
regimes, always come with the danger of government abuse. The concept of
self-governance helps try to pinpoint the conditions under which governments
are more likely to solve problems rather than make matters worse. The insti-
tutions that secure self-governance are expected to provide a general frame-
work for solving any social dilemmas and adapting to changes. As Vincent
Ostrom (1997) has argued, the stakes of this debate are high: “Democratic
societies are necessarily placed at risk when people conceive of their relation-
ships as being grounded on principles of command and control rather than on
principles of self-responsibility in self-governing communities” (4).
Vincent and Elinor Ostrom’s work follows in the footsteps of prop-
erty rights economics but rejects the simple market-versus-government
dichotomy, focusing instead on the concern with self-governance. Elinor
Ostrom titled her Nobel address “Beyond Markets and States: Polycentric
Governance of Complex Economic Systems” (E. Ostrom 2016). What is

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beyond both markets and states? What does “polycentric governance” mean,
and how does it help us better understand complex economic systems?
The “beyond markets and states” idea can be understood in two different
ways, both of which find ample support in Elinor Ostrom’s work. First, civil
society can be understood as a third sector that can play an essential role in
solving various social problems. Alongside her husband, Vincent Ostrom,
and her many collaborators and students, Elinor Ostrom aimed to recap-
ture and reformulate Alexis de Tocqueville’s insights into the role of social
norms, civil society organizations, and informal institutions. In her study of
how communities succeed or fail at governing common property (E. Ostrom
1990), she has found strong support for the idea that informal mechanisms
of monitoring, enforcement, and building trust are essential alongside formal
institutions.
A second meaning of “beyond markets and states” refers to the intellectual
framework that sees markets and governments as distinct and independent of
each other, each having its own separate areas of competence and responsibil-
ity. This is fundamentally at odds with the actual complexity of modern-day
states. As such, the theories that try to understand the operation of markets as
purely economic phenomena or the theories of governments as purely politi-
cal phenomena will have limited applicability. In the words of economist
Richard E. Wagner, our situation is better described as an “entangled politi-
cal economy” (Wagner 2016). This means that profit opportunities are often
related to political actions, and political actions often have private economic
reasons behind them.
In this chapter, I first briefly illustrate how these ideas can be applied
to the problem of water governance. Groundwater governance and irriga-
tion face the potential tragedy of the commons, and worldwide experience
shows that such problems are more likely to be solved in communities with
more significant degrees of self-governance. Next, I delve deeper into the
concept of self-governance, as developed by authors like Robert Dahl and
James Buchanan, then discuss how informal norms fit into a theory of self-
governance. I conclude by discussing how the concepts of polycentricity and
entangled political economy allow us to move from the analysis of small-
scale communities to large-scale federal and international organizations.

1. WATER GOVERNANCE

To illustrate this perspective focused on the importance of self-governance,

let us review the question of water governance, and in particular, groundwa-
ter. This was one of the key areas studied by Elinor Ostrom. This issue is both

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simpler than the big questions in political philosophy and complex enough to
highlight some of the key difficulties.
Aquifers are large, underground supplies of water, which get replenished
by rain at a particular rate. Extracting too much water from them (faster than
their replenishing rate) can lead to disaster, affecting a large number of people
over a large area. The aquifers are fascinating to study precisely because
regular economic theory predicts disaster.
First, their sizeable geographical expanse implies that many people can
independently build wells and extract water. As such, the conditions are ripe
for a tragedy of the commons—everyone takes as much water as they can
before the aquifer dries out. A person acting responsibly would simply harm
themselves, without saving the aquifer. The aquifer is sustainable only if
almost everyone is acting responsibly.
Second, the aquifer is an interesting combination of rival and non-rival
goods. The quantity of water is rivalrous, meaning that if one person extracts
some water, that water is no longer available for someone else. By contrast,
the quality of the water is a non-rival public good. If the water is safe to drink,
everyone benefits, and a person’s benefit does not substract from another
person’s benefit. Another public good element is informational: finding out
exactly how much water actually is in the aquifer is far from trivial and may
require expensive scientific research. Because this information is a public
good, there’s an incentive to free-ride: rather than contribute some money to
sponsor the research, everyone has the incentive to wait for others to do it,
and if not enough contributions are made, not enough resources will be avail-
able for a high-quality study.
What can be done to solve all these problems? Given the very large geo-
graphical expanse of these aquifers, it is not feasible for a single private actor
to own them, which presumably would lead to more careful use. A single
actor with monopoly power over the entire aquifer would also be problem-
atic. For the same reason, it is not feasible for the government to own it, as it
would essentially imply government ownership of all the land in the area. The
best avenue must be some form of regulation, but monitoring will be difficult.
This means that some combination of social norms and formal rules must be
in place. When conflict occurs, which will occasionally happen, a method for
quick and fair resolution must be available. The government will probably be
in the best position to pay for the scientific study of the aquifer and regulate
pollution so that water quality is not affected.
The bottom line here is that this is a highly complex issue, which may
involve the need for cooperation across multiple jurisdictions, and which
involves a combination of several different problems. Each of these prob-
lems requires a different type of approach, and failure in one area will
affect the other areas. In practice, even high-capacity and relatively efficient

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governments often fail in this area. For example, aquifers in both California
and Arizona are poorly managed, with governments allocating water rights
in a way that encourages inefficient agricultural activities, such as grow-
ing crops (like peanuts) that require unusually high amounts of water.
Incentivizing people to grow peanuts in the desert is like encouraging people
to grow bananas in Canada.
This type of complexity is the norm rather than the exception. For example,
forest management, another area studied by Elinor Ostrom, similarly involves
dealing with several different types of goods that must be managed simulta-
neously. While wood is a rivalrous good, the protection trees offer against
mudslides is a public good, as is the environment for hunting and other activi-
ties (Tarko 2017, ch. 3–4).
What about irrigation? At first glance, irrigation systems should be easier
to manage than aquifers. But appearances can be deceiving (Tarko 2017, ch.
3–4). While the size of aquifers is determined by nature, individuals decide
the size of an irrigation system. That adds a layer of complexity because,
ideally, the optimal size should be selected somehow. Furthermore, irrigation
may be an added complication to the aquifer problem if the water for the
aquifer is used in agriculture.
What makes irrigation a commons problem is that (a) they have significant
economies of scale, meaning that many farmers should cooperate to build a
joint irrigation system, and (b) irrigation systems need constant maintenance
and repair, and farmers may be tempted to free-ride on others’ efforts while
reaping the continued benefits from the water system.
How big should the irrigation system be? Self-governing irrigation systems
are built in a bottom-up fashion by farmers cooperating on the initial project,
as well as on the continued maintenance of the system and of monitoring
and enforcing rules against water theft. Such irrigation systems, as found
everywhere worldwide, are expanded until the benefits from the economies
of scale become overwhelmed by the costs of coordinating and cooperating
among too many people. As such, the scale is chosen based on the nature of
the social interactions in that community. In other words, the optimal scale
is not driven just by technology (although technology matters), but also by
social factors such as trust and the available formal and informal institutions
for conflict resolution.
A key source of conflict in irrigation system management is related to
fairness concerns, as the system may deliver unequal amounts of water to
everyone. One key fact discovered by Elinor Ostrom, and which matches the
psychological research on fairness, is that what matters the most is for the
benefits to be proportional to the efforts (Tarko 2017, pp. 121–126). In other
words, fairness does not mean equal outcomes but outcomes proportional to
the contribution. Systems that establish fairness in this sense work with the

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fewest number of conflicts. Also, what counts as “fair” is culturally deter-

mined, and the exact conditions also differ in subtle but important ways. “No
single set of rules defined for all irrigation systems in a region could satisfy
the particular problems in managing each of these broadly similar, but dis-
tinctly different, systems” (E. Ostrom 2009).
In contrast to self-governing irrigation systems, governmental systems tend
to be much larger. Aid agencies and NGOs with a development mission have
often promoted such systems out of honest, good intentions. Unfortunately,
most of them have failed and have universally worked much less efficiently
than the self-governing ones. In her Nobel Prize interview, Elinor Ostrom
noted that after studying “several hundred irrigation systems in Nepal,” they
discovered that “local groups are very effective” and that “farmer-managed
irrigation systems are more effective in terms of getting water to the tail end,
higher productivity, lower cost, than the fancy irrigation systems built with
the help of Asian Development Bank, World Bank, USAID, etc.” (E. Ostrom
1990). The farmers usually had much better knowledge of local conditions
than outside governments and organizations, and they had a strong vested
interest in solving the problem. Well-intentioned outsiders, by contrast,
lack such knowledge, and situations like the following continue to hap-
pen: “Millions of dollars have been poured into the development of irrigation
works in the dry zone of Sri Lanka” (E. Ostrom 1990).
The main reason the top-down irrigation systems tend to fail is ignor-
ing the maintenance problem and the difficulty of monitoring when the
farmers are not co-producers of the system (but instead simply users of the
system).2 Technological considerations usually set the scale of the top-down
systems. As such, the expectation is that these systems would work better
than the self-governing ones because they would take better advantage of
economies of scale. The assumption is that farmers don’t build the larger
systems themselves due to a lack of resources. In reality, the most significant
reason is social—the difficulty of coordinating, building trust, and solving
conflicts among an overly large group of people.
On top of this, in the government systems, the monitoring and enforcement
is supposed to be done by government agents, but such agents need to have
the same vested interests in the system’s success that the local farmers have.
The agents can also be corrupted or self-interested. When this happens, the
trust in the system plummets even more, and the fairness problem is accentu-
ated. Turning the farmers from co-producers into simply system users makes
all the managerial problems more difficult. The possibly more significant
economies of scale and better technology (due to more resources from outside
sources) are not enough to overcome these social-political problems.
From the point of view of economic theory, it is interesting and relevant to
compare co-production to team production (Aligica and Tarko 2013). Alchian

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and Demsetz proposed the concept of team production to explain why firms
have hierarchical structures in which managers monitor workers (Alchian
and Demsetz 1972). The idea is that most goods are produced as part of a
collaborative team, which makes it difficult to measure the labor productiv-
ity of each worker purely based on output (the output involves the combined
efforts of many workers, which masks the individual efforts of each worker).
Such teams face a tragedy of the commons in which each worker is tempted
to shirk, leading to decreased output for the team as a whole. The role of man-
agers is to monitor workers more directly and ensure maximum productivity.
This also explains why worker-owned and worker-managed firms are unusual
or have small sizes. Prominent exceptions include law firms and universi-
ties, both of which are cases in which the productivity of individual workers
(lawyers and professors) is easier to disentangle from the team production.
The key difference between co-production and team production is that
“[w]hereas team production involves cooperation for the goal of producing
something for an outside consumer, in the case of co-production the good is
consumed by the members of the production team. For this reason, the prob-
lem of monitoring can be solved more easily in the case of co-production
because the agents have a vested interest in having the good produced in the
appropriate quantities and qualities” (Aligica and Tarko 2013). For example,
in the case of typical manufacturing, workers are motivated primarily by their
wages and not by benefits from the product. By contrast, in the case of an
irrigation project, the contributors to the project are motivated primarily by
their own use of the irrigation system. This does not eliminate the temptation
for free-riding, but it provides a more substantial reason against it.
One way of understanding the failure of top-down irrigation systems,
as compared to the relative success of the bottom-up systems, is that the
top-down systems are built on the wrong assumptions: “Advocates of cen-
tralization confuse co-production with team production and, consequently,
inappropriately apply the firm model to public administration” (Aligica and
Tarko 2013). The firm model assumes workers have no intrinsic motivations
but need external rewards and/or punishments. In contrast, the managers and
owners of the firm are motivated by the enterprise’s success because they are
residual claimants3 (and hence they have the incentive to monitor the work-
ers properly). This is the exact opposite of the case for co-production. The
top-down managers are not residual claimants of public projects, while the
co-producers do have intrinsic motivations. Consequently, while, in the case
of firms, it is unusual to see successful worker-managed firms, the opposite
holds for public or common projects.
This Ostromian perspective adds an important participatory element to the
concept of self-governance. Citizens are not understood as mere passive con-
sumers of public services provided by governments in a direct analogy to the

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market. In a self-governing system, citizens’ participation in the governance

of various commons and solving multiple social problems involves more than
just voting every few years. Applying models that work well for understand-
ing markets (i.e., governing the production of private and club goods) to the
governing of the commons (i.e., common-pool resources and public goods)
can seriously backfire and lead to what Elinor Ostrom called “crowding out
citizenship” (E. Ostrom 2000). As Vincent Ostrom also put it, “Democratic
societies cannot be fashioned without such roots of self-governance. . . . For
this reason, the basic architecture of modern societies must, as Tocqueville
has argued, draw upon a science of association to fashion rules of social inter-
action that apply from the level of the village to the level of the nation state
and beyond” (Aligica 2003).

2. THE CONCEPT OF SELF-GOVERNANCE4

Robert Dahl has highlighted the fundamental problem of self-governance: “to

live in association with others necessarily requires that [one] must sometimes
obey collective decisions that are binding on all members of the association.
The problem, then, is to discover a way by which the members of an associa-
tion may make decisions binding on all and still govern themselves” (Dahl
1989, 89). Similarly, James Buchanan wrote about the “paradox of ‘being
governed,’” and pointed out that “the individual does not enter into social
contract [with others] for the purpose of imposing constraints on himself,”
but in order to “secure the benefits of behavioral limitations on their part”
(Buchanan 1975, 136; see also Buchanan 1994).
Living with others brings significant benefits, but it requires building
consensus about how to govern collective affairs and about what counts as
a collective or private affair—i.e., about the legitimate scope of collective
decision-making and, conversely, the extent of the private sphere. Building
such a consensus is often far from trivial. It takes time and effort to discuss
matters and to negotiate various possible schemes for compensating losses,
and, ultimately, consensus might still be impossible due to some irreconcil-
able values.
We can define self-governance as “the capacity of a community to live
under rules of its own choice and to produce social-economic outcomes
that most members of the community find desirable” (Tarko 2021b). Self-
governance is valuable because it enables a more economically efficient sys-
tem, i.e., a system that maximizes preference satisfaction not only concerning
the delivery of various private goods and services but also concerning the
overall nature of society. As philosopher Tom Christiano put it, “[t]he citizens
ought to play the role of defining the basic aims the society ought to pursue

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and the legislative institutions ought to be concerned with reconciling the

different aims of citizens and defining broad means for implementing these
aims” (Christiano 2005). In a democratic system, self-governance can be
undermined in several ways:

• External interference: an external party, which may have its own

interests (at odds with the interests of the community), establishes and
enforces some rules upon the community, even if most people in the
community disagree with those rules (e.g., the federal government may
impose various rules upon states and local jurisdictions, or regulatory
agencies establish rules that most people dislike) (Aligica, Boettke,
and Tarko 2019), or it imposes uncompensated costs on the commu-
nity (e.g., a community may be subjected to pollution from a nearby
source or a jurisdiction may be required to provide financial aid to
another) (V. Ostrom, Tiebout, and Warren 1961);
• Internal polarization: the community may suffer from extreme disagree-
ments concerning some public issues, and whatever rules they establish
or decisions they adopt, a significant fraction of the community will end
up subjected to a rule or decision they disagree with (e.g., conflicts in a
local community regarding the use of public property, such as whether
to facilitate industrial development at the expense of the natural environ-
ment; or large-scale conflicts about moral issues like abortion, sexuality,
foreign policy, immigration, or income inequality);
• Special interests: the dilemma of “concentrated benefits and dispersed
costs” is created by the fact that those suffering the dispersed costs find
it more challenging to organize than those enjoying the concentrated
benefits—as a result, well-organized minorities can establish rules that
harm the less-well-organized majorities (Olson 1965, 1982);
• Lack of competence: the community may agree to implement certain
policies that, in fact, lead to the opposite consequences than those
desired. Furthermore, in the aftermath of such errors, the lack of com-
petence may lead the community to misidentify the true causes of the
problem and compound the error by adopting additional failing policies
(Brennan 2016; Caplan 2003, 2008; Somin 2013).

Ideally, all the above self-governance problems would be minimized, but

in practice, trade-offs are present. For example, decentralization allows the
satisfaction of a greater diversity of social preferences (Inman and Rubinfeld
1997; V. Ostrom 1987), but it also generates larger externalities between
jurisdictions, and it makes collective decisions about larger-scale problems
more difficult (Buchanan and Tullock 1999; Tarko and O’Donnell 2018).
Decentralization also doesn’t address some pervasive causes of moral

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polarization, which can occur at all scales rather than clustering geographi-
cally. In such cases, relying on overlapping civil society organizations and
non-territorial governance (Aligica, Boettke, and Tarko 2019; Tucker and de
Bellis 2015) may be better alternatives, but such approaches increase hetero-
geneity and often decrease social trust (Aligica 2013; Gaus 2018). Gerald
Gaus refers to the heterogeneity of values as the “fundamental diversity
dilemma” facing all societies aiming to be self-governing (Gaus 2010; Gaus
and Hankins 2017).
Similar trade-offs affect our reliance on the administrative state. Relying
on experts to devise better policies may improve competence, but it can also
create problems if the experts have their own normative agendas, which may
differ from the values of the community at large or if special interests capture
experts (Aligica, Boettke, and Tarko 2019; Tarko 2021b).
One way of looking at the “paradox of being governed” is by exploring
the relation between self-governance and state capacity. Self-governance
typically enhances political legitimacy, which, in turn, allows the creation of
greater state capacity (Geloso and Salter 2020; Johnson and Koyama 2017).
The question, however, is whether state capacity can also be built in the
absence of self-governance and political legitimacy and used by rulers for
more nefarious purposes. Empirically, there is indeed a positive correlation
between measures of self-governance, like the liberal democracy measure
from the Varieties of Democracy data set, and measures of state capacity
(O’Reilly and Murphy 2020), as shown in Figure 1. However, the relationship
is indeed problematic: The variance in state capacity for low-self-governance
countries is higher than for high-self-governance countries. While no

Figure 6.1. Relationship between liberal democracy and state capacity.

Source: Author calculation using the state capacity index created by O’Reilly and Murphy (2020) and the
liberal democracy index from Varieties of Democracy (Coppedge et al. 2014).

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low-state-capacity countries score well on liberal democracy, there are

undemocratic countries with relatively high state capacity.
A possible explanation of this is as follows: If the community trusts its col-
lective choice institutions, greater state capacity helps solve more problems
more cheaply and with fewer conflicts. As such, self-governance and state
capacity can be seen as part of a positive feedback loop, as the optimistic
picture of state capacity asserts. By contrast, higher state capacity is undesir-
able in the context of low political legitimacy as it would not typically be
used to benefit the regular population. Nonetheless, as shown in Figure 1,
some undemocratic countries can still build state capacity by relying more
on force. The technology of building high state capacity is not restricted to
liberal democratic governments.
This highlights Madison’s fundamental dilemma of government: “In fram-
ing a government which is to be administered by men over men, the great
difficulty lies in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself” (Federalist No. 51).
If a government is strong enough to curb private violence over the territory
it controls, it is also strong enough to abuse its power over those it governs
(Buchanan 1975; North, Wallis, and Weingast 2009).

3. THE IMPORTANCE OF INFORMAL NORMS

The team production hierarchical model, which emphasizes the importance

of top-down monitoring, also goes hand in hand with focusing primarily on
formal rules. This goes back to Hardin’s original account of the tragedy of the
commons, which assumed only two viable solutions (Hardin 1968): privatiza-
tion or government control and monitoring. The general idea is that a tragedy
of the commons is supposed to be solved by implementing certain rules
against free-riding and overuse of resources, and because such rules need
to be imposed on all (regardless of consent), they need to be imposed by a
government. Considering the legalistic nature of government, we’re talking
about formal rules, not informal social norms.
An important observation made by Elinor Ostrom is that the tasks of
monitoring and enforcing rules themselves suffer from a free-riding problem.
These are called nested social dilemmas (McGinnis 2000, ch. 7 and ch. 16).
The original Alchian and Demsetz team production model does not suffer
from a second-order free-riding problem, because the owners of the firm are
residual claimants, and hence they have the proper incentives to monitor and
enforce rules inside the firm. In the public realm, government agents are not
residual claimants and hence face the second-order social dilemma:

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In the currently accepted theory of collective action, the temptation to free

ride—to receive benefits without paying costs—prevents individuals from vol-
untarily contributing to joint efforts in groups without selective benefits. And
creating rules that induce contributions is itself a second-order social dilemma
not likely to be solved by those mired in their inability to solve the first-order
problem. . . . Enforcing these rules would be a third order social dilemma—
costly to those who impose punishments on others and generating benefits of
compliance that everyone, even free riders, would receive. (E. Ostrom 2000)

According to standard theory, “[t]he predicted outcome of any effort to

solve a second-order dilemma is failure. Yet, participants in many field set-
tings and experiments do exactly this” (E. Ostrom 1998). Ostrom’s point
here is to argue for a more complex model of rational choice in which we
don’t rely exclusively on external punishments and rewards. People have
other-regarding preferences to some extent, and they also internalize various
social values. These are essential for solving second-order (and higher-order)
social dilemmas, assuming only external punishments and rewards lead to an
infinite regress of nested social dilemmas. The role of intrinsic preferences
and beliefs about rules’ legitimacy is essential. The nested social dilemmas
could not be solved without these: “Without individuals viewing rules as
appropriate mechanisms to enhance reciprocal relationships, no police force
and court system on earth can monitor and enforce all the needed rules on
its own. Nor would most of us want to live in a society in which police were
really the thin blue line enforcing all rules” (E. Ostrom 1998). Elinor Ostrom
noted that

(a)t least some individuals in social dilemma situations follow norms of behav-
ior—such as those of reciprocity, fairness, and trustworthiness—that lead them
to take actions that are directly contrary to those predicted by contemporary
rational choice theory. In other words, the behavior of many individuals is based
on intrinsic preferences related to how they prefer to behave (and would like
others to behave) in situations requiring collective action to achieve benefits or
avoid harms. Intrinsic preferences lead some individual to be conditional coop-
erators—willing to contribute to collective action as long as others also contrib-
ute. Intrinsic preferences transform some dilemmas into assurance games where
there are two equilibria and not just one [emphasis added]. (E. Ostrom 2000)

This is a familiar idea, but it has become neglected in modern economic lit-
erature. It overly narrows the range of rational choice to focus exclusively on
external material incentives.

All long-enduring political philosophies have recognized human nature to be

complex mixtures of the pursuit of self-interest combined with the capacity of

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acquiring internal norms of behavior and following enforced rules when under-
stood and perceived to be legitimate. Our evolutionary heritage has hard-wired
us to be boundedly self-seeking at the same time that we are capable of learning
heuristics and norms, such as reciprocity, that help achieve successful collective
action [emphasis added]. (E. Ostrom 1998)

Recognizing the reality of other-regarding preferences and social norms like

fairness is important for understanding both collective action and the results
of lab experiments. For example, a puzzling observation is that people coop-
erate to some extent, even in anonymous one-shot Prisoners’ Dilemmas. A
common interpretation is that people are irrational—they either don’t under-
stand the game or have difficulty calculating the Nash equilibrium.5 But a dif-
ferent interpretation is that people maximize subjective utility, not objective
payoffs (like monetary gains). For example, if maximizing strictly your per-
sonal monetary gains while disregarding what happens to other people makes
you feel bad in various ways (because of internalizing various norms against
selfishness), you are less likely to make that purely selfish choice. People
have a certain degree of generosity and fairness and expect the other person
to have this as well. As such, cooperation can be rational, i.e., the choice that
maximizes people’s expected subjective utilities (Tarko 2021a).
The idea that tragedies of the commons can be solved only by adjusting
the objective payoffs neglects these powerful mechanisms for enabling coop-
eration and can interfere with it, leading to what Ostrom calls “crowding out
citizenship.” Changing the payoffs can help: “External interventions crowd
in intrinsic motivation if the individuals concerned perceive it as supportive.”
However, the opposite happens too often: “External interventions crowd out
intrinsic motivation if the individuals affected perceive them to be control-
ling” (E. Ostrom 2000). The bottom line is that “[w]hen intrinsic motivations
are crowded out, substantially more resources are required to induce effort
than when incentives support a sense of control and reliance on intrinsic as
well as material incentives” (E. Ostrom 2000). As such, neglecting the par-
ticipatory aspect of self-governance leads to higher costs and public sector
inefficiencies.
To return to Madison’s paradox of government, Elinor Ostrom has simi-
larly warned that:

officials and policy analysts who presume that they have the right design can be
dangerous. They are likely to assume that citizens are short-sighted and moti-
vated only by extrinsic benefits and costs. Somehow, the officials and policy
analysts assume that they have different motivations and can find optimal policy
because they are not directly involved in the problem. . . . They are indeed
isolated from the problems. This leaves them with little capability to adapt and
learn in light of information about outcomes resulting from their policies. All

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too often, these “optimal” policies have Leviathan-like characteristics to them.

(E. Ostrom 2005, 256)

It is important to understand the reasons we have these two distinct types of

institutions, both formal rules and informal social norms (Leeson and Coyne
2012). A common misconception is that informal norms are just an imperfect
version of formal rules. Rules are clear; norms are vague. However, norms
and rules have distinct strengths and weaknesses, and they work best when
they form a complementary institutional package. Elinor Ostrom distin-
guishes formal rules from informal social norms by noting that the latter lack
clear predefined explicit penalties (Crawford and Ostrom 1995). This gives
credence to the claim that informal norms are just vague rules. But the key
idea is that, by lacking predefined penalties, norms are better suited to take
context into account. Furthermore, because penalties can differ from person
to person, they are better suited to make room for personal interactions (as
opposed to one-size-fits-all rules).
Human interactions are generally too complex for us to be able to write
down all the possible situations, and formalize the proper behavior for each
situation. Moreover, overly formalizing things backfires, both by making it
harder to respond to new challenges and by creating unnecessary delays for
regular activities. This being said, under-formalizing things can also be a
mistake: It gives too much discretionary power to various individuals or to
traditions and can make it too dangerous for minority positions to express
themselves.
Leeson and Coyne (2012) argue that laws, norms, and contracts have dif-
ferent use cases, which we can identify by looking at their typical costs and
benefits. Norms have the greatest accumulated “wisdom” but also the greatest
production costs, and they offer the least amount of freedom of choice, par-
tially due to the difficulty of changing norms. Contracts offer some degree of
wisdom as a consequence of being based on the mutual agreement between
parties (although less than norms, as they embed less experience), and they
also offer the greatest flexibility and choice and the lowest production costs.

Table 6.1. Costs and benefits of contracts, norms, and laws. Source: Author, as an
interpretation of Leeson and Coyne (2012).
Contracts Norms Laws
Benefits Wisdom Medium High Low
Alterability Easy Hard Medium
Freedom of choice High Low Medium
Costs Production costs Low High Medium
Heterogeneity costs High Medium Low

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However, they create significant heterogeneity, which can create problems

when social expectations are essential.
Laws offer relatively little “wisdom” as compared to norms or contracts
because they allow one group to create rules for others. Nonetheless, they
have their advantages, especially in terms of low heterogeneity costs (creat-
ing explicit expectations about the rules), and in offering greater freedom of
choice than norms. The process of changing laws involves various forms of
deliberation and compromise, while norms change via an evolutionary pro-
cess that is less reflective (E. Ostrom 2014). Even in the case of beneficial
norms, people often don’t understand the true reasons norms benefit them
(Boettke 1996; Henrich 2015). Furthermore, norms typically change more
slowly than laws (Williamson 2010).

4. HETEROGENEOUS VALUES, POLYCENTRICITY,

AND ENTANGLED POLITICAL ECONOMY

What happens when we move our attention from relatively small-scale issues
to larger political problems? The other sense in which we can go beyond the
simple dichotomy of markets and states is to recognize the entangled nature
of state and private sector. In a paper published as early as 1977, Vincent and
Elinor Ostrom tried to highlight the complexity of the relationships between
markets and states by pointing out that public goods are, in fact, commonly
provided by governments by a variety of methods such as:

(1) Operating its own production unit. E.g., a city with its own fire or police
department. (2) Contracting with a private firm. E.g., a city that contracts with
a private firm for snow removal, street repair, or traffic light maintenance. (3)
Establishing standards of service and leaving it up to each consumer to select
a private vendor and to purchase service. E.g., a city that licenses taxis to pro-
vide service, refuse collection firms to remove trash. (4) Issuing vouchers to
families and permitting them to purchase service from any authorized supplier.
E.g., a jurisdiction that issues food stamps, rent vouchers, or education vouch-
ers, or operates a Medicaid program. (5) Contracting with another government
unit. E.g., a city that purchases tax assessment and collection services from a
county government unit, sewage treatment from a special sanitary district, and
special vocational education services from a school board in an adjacent city.
(6) Producing some services with its own unit, and purchasing other services
from other jurisdictions and from private firms. E.g., a city with its own police
patrol force, which purchases laboratory services from the county sheriff, joins
with several adjacent communities to pay for a joint dispatching service, and
pays a private ambulance firm to provide emergency medical transportation.
(E. Ostrom and V. Ostrom 1977)

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 Self-Governance Solutions to Social Dilemmas 153

One may notice here that some of these methods involve (a) the entanglement
between government and market actors, while others involve (b) interac-
tions between different government units. The first situation does not fit well
with the simple theories assuming clear distinctions between private goods
and public goods, markets, and governments. The second also considers
the importance of polycentricity, the phenomenon of having multiple deci-
sion centers that overlap, interact, cooperate, and/or compete (Aligica and
Tarko 2012).
Polycentricity is generally contrasted with both hierarchical organiza-
tion and mere fragmentation (Fig. 3) (Aligica and Tarko 2012). In a merely
fragmented system, the different decision centers are not embedded in an
overarching system of institutions that enables them to solve conflicts, build
trust, etc. A polycentric system, by contrast, has avenues for conflict resolu-
tion and common norms that establish expectations. Polycentricity is often
confused with mere fragmentation because both enable competition, but they
are fundamentally different. A key component of Elinor Ostrom’s research is
concerned with understanding the nature of those overarching institutions that
set up a polycentric system and understanding which institutions are likely to
lead to resilience and productivity (Aligica and Tarko 2014).
Another common error is to assume there is a hierarchical organization
where, in fact, we have a polycentric system. This confusion is due to the
fact that both types of systems provide coordination. But they do so in very
different ways. For example, Vincent and Elinor Ostrom have highlighted

Figure 6.2. Distinction between polycentricity and fragmentation.

Source: Author.

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 154 Vlad Tarko

the idea that American federalism is not hierarchical because U.S. states
can have state laws that contradict federal laws (e.g., marijuana is legalized
in many U.S. states, although it remains against federal law) (Bish 2014;
V. Ostrom 1991; Wagner 2005). The assumption of hierarchical organization
makes things look simpler and easier to control than they are. Once again,
we see a case in which the team production hierarchical model is applied to
the public realm instead of a co-production model. An essential fact about
polycentric systems is that their social-economic-political order and coordi-
nation is emergent—meaning that no single actor has complete control over
it, but instead, it is the result of many interactions, adjustments, conflicts, and
negotiations. As such, seeing the world through the lens of polycentricity is
the first step toward understanding its complexity.
Recognizing the importance of polycentricity as a tool for understanding
complex social orders has two important origins: (a) James Buchanan’s cri-
tique of the use of the social welfare function in welfare economics, and (b)
Vincent Ostrom’s critique of anthropomorphizing states and governments,
assigning goals to them instead of recognizing their internal structures and
complexity. An earlier, imperfect version of these critiques can be found in
John Dewey’s The Public and Its Problems, in which he noted:

(t)he moment we utter the words “The State” a score of intellectual ghosts rise to
obscure our vision. Without our intention and without our notice, the notion of
“The State” draws us imperceptibly into a consideration of the logical relation-
ship of various ideas to one another, and away from facts of human activity. It is
better, if possible, to start from the latter and see if we are not led thereby into
an idea of something which will turn out to implicate the marks and signs which
characterize political behavior. (Cited by V. Ostrom 1997, 40)

We are used to describing collective entities as if they are individuals. We

talk about “firms” and “organizations” as having goals. We discuss “states”
as having “national interests” and describe international relations as relations
between states. We even talk about “society” as if it’s an individual—for
instance, we are concerned about promoting “general welfare,” and we may
speak of “national character.” It may seem a tedious point to make, but none
of these entities have interests—only the individual people within these orga-
nizations have goals and beliefs. Is this just a pedantic and useless point?
(Tarko 2017, ch. 5).
Vincent Ostrom stressed that “[m]yths and the misplaced use of abstrac-
tions to apply to Societies as a Whole need to be recognized for what they
are—less than empirically warrantable assertions” (V. Ostrom 1997, 60), and
he complained that “[t]he overwhelming amount of political discourse in
the mass media, among students and faculty on university campuses, and in

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casual discussions contains references to ‘America,’ ‘Society,’ ‘the Nation,’

and ‘the Government’” (70). He thought that “as intellectual constructs, they
are too gross to be useful; they run the risk of being misleading and are the
source of serious forms of deception and misconceptions” (111).
Similarly, for Buchanan, “the economy and the government are parallel
sets of institutions, similar in many respects, and, of course, intersecting at
many separate points” (Buchanan 1979, 146). On the one hand, “‘govern-
ment’ is simply that complex of institutions through which individuals make
collective decisions, and through which they carry out collective as opposed
to private activities” (144). On the other hand, the economy is “that complex
of institutions that emerges as the result of the behavior of individual per-
sons who organize themselves to satisfy their various objectives privately, as
opposed to collectively” (146).
From this perspective, which refuses to model government as a single,
unitary, goal-driven entity, the concept of a social welfare function becomes
problematic. In the standard cost-benefit analysis, once the expert “has
defined his social welfare function, his public interest, he can advance solu-
tions to all of society’s economic ills, solutions that government, as deus ex
machina, is, of course, expected to implement” (145). When a social welfare
function is defined, government is by necessity understood as a goal-driven
entity, but then one hampers the analysis of the processes by which poli-
cies are actually created and implemented. Government becomes a deus ex
machina fantasy that fulfills its assigned purpose.
By contrast, when we focus on the political and public administration
mechanisms at work, we are led to conceptualize “the government” as a com-
plex polycentric structure comprised of many decision centers rather than a
single entity with one goal, i.e., a polycentric system. “The government” no
longer has a goal but is an emergent phenomenon.
But if this is so, the role of the economist also changes: “It is wholly beyond
his task for the economist to define goals or objectives of the economy or of
the government and then to propose measures designed to implement these
goals” (Buchanan 1979, 146). Buchanan complains that “[m]ost economists,
and, I suspect, most political scientists, view government as a potentially
benevolent despot, making decisions in the ‘general’ or the ‘public’ interest,
and they deem it their own social function to advise and counsel this despot
on, first, the definition of this general interest, and, second, the means of fur-
thering it” (145). By contrast, his advice is quite different:

The role of the social scientist who adopts broadly democratic models of gov-
ernment process . . . [is] to explain and to understand how people do, in fact,
govern themselves. . . . The social function is not of improving anything directly;

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instead, it is that of explaining behavior of a certain sort which, only remotely

and indirectly, can lead to improvements in the political process itself, (145)

The self-governance perspective is also justified pragmatically. Elinor and

Vincent Ostrom have noted that Buchanan and Tullock’s “principle of con-
ceptual unanimity gave meaning to what [we] had observed and what was
accomplished” (E. Ostrom and Ostrom 2004). In a nutshell, the “principle
of conceptual unanimity” can be understood as the idea that self-governing
groups create institutions in an inclusive fashion, avoiding inflicting severe
external costs on some members of their community. Self-organizing groups
invent collective choice institutions that lower their decision-making costs
to feasibly increase inclusion and reduce the inflicted harm to various com-
munity members.
For example, when Elinor Ostrom studied water management in West
Basin, California, she found that adjudicating water rights was driven by
intuitive considerations of “equity jurisprudence,” which can be understood
as seeking “to achieve conceptual unanimity in establishing the nature of the
problem, in adjudicating water rights, in formulating the rules that were con-
stitutive of water user associations, the way they related to one another, and
in monitoring performance” (E. Ostrom and Ostrom 2004). Numerous other
studies followed very similar lines and reached similar conclusions (Dietz,
Ostrom, and Stern 2003; E. Ostrom 1990; E. Ostrom et al. 1999). The bottom
line is that a focus on self-governance is trying to achieve the same thing as
an honest cost-benefit analysis. Still, self-governance provides a better and
more reliable policy guideline because it has more realistic political economy
assumptions. It addresses Gaus’s “fundamental diversity dilemma” head-on
rather than pretending there are predefined objective criteria about what a
society should maximize.

CONCLUSION

Elinor Ostrom addressed some of the biggest questions in political economy,

such as the nature of self-governance and the conditions for sustainable devel-
opment. Part of what makes her work unique is the combination between
game theoretical models and extensive empirical fieldwork. Her method of
approaching big questions was to find and study in detail specific instances
of these big questions, particularly cases in which communities behaved in
ways in which theory said it was impossible. The detailed empirical analy-
sis allowed her to gain new insights about why and how self-governance
was possible and suggested important changes to our models of economic

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 Self-Governance Solutions to Social Dilemmas 157

behavior, such as the necessity of including social norms and other-regarding

preferences within our analyses.
As Robert Bish noted, the Ostroms’ project tried to respond to two forms
of pessimism, one from Max Weber about the inevitability of hierarchical
bureaucratic organizations and one from Alexis de Tocqueville about the
collapse of democracies due to the gradual loss of civic virtues (see also
the chapter by Paniagua and Pourvand [2024] in this volume). Weber “was
pessimistic about large-scale bureaucracies, but did not believe there was an
alternative. Weber did not seem to have contemplated Vincent’s polycentric-
ity, or federalism, as the way to govern a large society” (Bish 2014). The
whole point of the research on polycentricity was, indeed, to show, first,
that, empirically speaking, large-scale governments are not hierarchical, but
polycentric, and, second, that, from a normative point of view, we should
not try to turn them into hierarchical organizations (Tarko 2017). Although
this point is still not widely understood, the Ostroms did, indeed, success-
fully counter Weber’s pessimism. The bureaucratic administration is not an
inevitability but a choice made due to a misunderstanding of the nature of
complex institutions.
This brings us to the second issue, namely, citizens’ uncritical faith in
single-sovereign, mono-centric solutions to social problems, as eloquently
articulated by Bish: “Tocqueville did not believe citizens understand how
democratic administration and multicentered systems work; hence, citizens
seek solutions to problems with a single-sovereign bureaucratic approach.
Tocqueville believed that the faith in single-sovereign solutions would even-
tually suffocate the energy of citizens and destroy democratic administration”
(Bish 2014).
The Ostroms, indeed, took this possibility very seriously (V. Ostrom
1997; Vincent and Elinor Ostrom, interviewed by Aligica 2003). Bish recalls
that: “Vincent was concerned with what he perceived to be a decline in public
participation in civic life, something that went beyond simply participation in
governance, and the increasing nationalization of activities that had formerly
been left to civic associations or state and local government where citizen
participation was much more likely” (Bish 2014). Their attempt to counter-
act this tendency ranged from their police and water management studies in
the United States to the management of common-pool resources worldwide.
The study of common-pool resources was part of this broader concern with
Tocquevillian self-governance: “My hope is . . . that the examination and
analysis of common-pool resources in the field, in the experimental labora-
tory, and in theory, contribute to the development of an empirically valid the-
ory of self-organization and self- governance” (Elinor Ostrom, interviewed
by Aligica 2003).

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 158 Vlad Tarko

As the Bloomington School continues after Elinor and Vincent Ostrom’s

departure, the major challenge, as articulated by Vincent in an interview with
Paul Aligica, still continues: “A Tocquevillian science of association—a body
of knowledge that helps us to understand the nature of social order, and the
forms of social interaction that lead to mutual advantage—is the foundation
for choosing among the institutional alternatives open to us. Now, it remains to
be determined whether human beings can actually use such methods of discus-
sion, reflection, and choice to fashion the future course of human civilization”
(Vincent Ostrom, interviewed by Aligica 2003).

NOTES

1. The free-rider problem is a type of social or coordination failure that occurs when
those who benefit directly from resources, public goods, and common-pool resources
do not pay for them or underpay. Examples of such goods are public transportation,
public services, or other goods of a communal nature. Free-riders are a crucial prob-
lem for common-pool resources because they may overuse it by not paying for the
good (either directly through fees or tolls or indirectly through taxes). Consequently,
common-pool resources may be underproduced, overused, or degraded.
2. Co-production refers to the notion that many services are produced by both
the producer (regular producer) and the client (consumer-producer). In other words,
inputs from both regular producers and consumer-producers are essential. A good
example of this is education.
3. The “residual claimants” are the people who capture the profit of an enterprise
after all factors of production have been paid, which include: wages paid to workers;
rent paid for land, buildings, and other forms of rented capital; interest paid to lend-
ers; and various repairs and current expenses. The residual claimants have a vested
interest in running the enterprise as efficiently as possible (i.e., produce the highest
value to paying customers with as few resources as possible) because they capture
the profits.
4. This section is adapted and expanded from Tarko (2021b).
5. The Nash equilibrium is a situation in which none of the game participants
wants to change their decisions—i.e., no one can gain more by individually switching
their choice while assuming everyone else’s choices remain fixed. A game can have
more than one Nash equilibrium. Nash equilibria can also capture the reality of bad
equilibria, in which people are stuck in situations no one particularly likes. Prison-
ers’ Dilemma is one such example. Nash equilibria are used to predict the possible
outcomes of a game.

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 Self-Governance Solutions to Social Dilemmas 159

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 PART III

Principles of Polycentric
Law and Statecraft

163

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&DSDUW3DJH 6WDJH'UDIW
 Chapter 7

Panarchy
Non-Territorial Polycentricity1

Aviezer Tucker

Much of the history of political philosophy consists of attempts to design

the best state. Though all states must satisfy certain basic necessary require-
ments—like protection against force, collection and disposal of funds, and
adjudication of disputes—there is no one and only “best state” that fulfills all
these functions optimally under different circumstances and meets the expec-
tations of people with different needs, values, ideas, traditions, and tastes.
As many of the contributors to this volume on polycentricity argue, the
very idea of the design of a state that can be implemented from the top down
is self-defeating. The attempts of political powers to impose designs against
the creative plurality of conflicting views, ideas, interests, and values neces-
sitates the use of force, which undermined most designs because the state is
forced to add powerful coercive institutions to the design, and these institu-
tions would be able and interested in gaining independence from any design
to undermine it and rule themselves (Nozick 1974, 313–14; Narveson 1988,
139–40; Tucker et al. 2004; Paniagua and Pourvand 2024). Instead of design-
ing a “best state,” normative political philosophy may explicate conditions
under which personal and institutional choices are likely to lead to the emer-
gence of what different people may consider the best states for them.
Panarchy is such a contractarian political theory. It suggests that people
and non-territorial states negotiate their relationships and formalize them in
explicit and voluntary social contracts. Different states may offer varying
levels of services in areas such as public services and security for different
prices. Non-territorial states reduce to insignificant the costs of mobility
between states, thereby maximizing competition between states that offer ser-
vices to citizens instead of ruling a territory. Non-territorial states are founded
165

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 166 Aviezer Tucker

on explicit social contracts (constitutions and law codes) rather than on

monopoly over territory—sovereignty (Tucker 2016). Panarchic ideas have
been invented, reinvented, and developed independently by thinkers from dif-
ferent places and times who mostly were unaware of each other. I co-edited
an anthology that collected their writings (Tucker and Bellis 2016). The term
panarchy was introduced by Paul Emil de Puydt in an article he published
in Brussels in 1860 (Puydt 2016/1860). Puydt (1810–1891) was a Belgian
polymath who is perhaps best known today as a botanist. He asked how
very different kinds of people—conservative monarchists and Republican
liberals, Catholics and Protestants, Flemish and Walloons—can co-exist in
the same demographically mixed territory. He proposed that they can belong
to different, parallel, non-territorial states. Globalization has made much
of the world as diverse as Belgium, and the radicalization of politics in the
twenty-first century has made compromise as difficult as in 1860 Belgium.
Puydt’s ideas have, therefore, become even timelier today.
In this chapter, I will build a case for panarchy as an attractive alterna-
tive to the modern sovereign State with a territorially defined monopoly of
power. I begin by assessing the meaning and potential advantages of the core
proposition of panarchy—namely, that citizens and states base their mutual
relations on explicit, voluntary, and limited social contracts. I argue that this
type of social contract theory is better than contractarian alternatives in the
history of political philosophy because it maximizes possibilities for exit and
competition between states over services to their customers. Second, I sug-
gest that panarchy could be thought of as belonging to a family of polycentric
theories of politics and draw attention to important similarities and differ-
ences between panarchy and other polycentric theories of political order.
Third, I examine the problem of political monopoly, specifically, the tendency
of States to monopolize the production and/or supply of goods and services,
resulting in inefficient uses of taxpayers’ money; and I argue that by reducing
the costs of political exit to close to nothing, panarchy could eliminate the
problem of political monopoly. Fourth, I anticipate the Nozickean claim that
the State constitutes a sort of natural monopoly, making the case that from a
historical perspective, states are not, in fact, natural monopolies. Fifth, I high-
light ways in which panarchy could improve the moral quality of the present
world order. Finally, I round out the chapter by suggesting that as much as the
Westphalian order fitted seventeenth-century technology, recent innovations
like information technology, cryptocurrencies, remote work, virtual reality,
smart contracts, and the startup are all not-territorial, and they fit panarchy
much better than seventeenth-century politics.

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1. EXPLICIT SOCIAL CONTRACTS

In panarchy, citizens and States base their mutual relations on explicit, vol-
untary, and limited social contracts. Political agents choose among states, for
example, according to their social contracts (law codes) and their reputations
for good service. Political agents literally sign social contracts with States
for set durations. Citizens may change their States, just as customers can
change their insurance policies. States are founded on social contracts rather
than sovereignty and service to citizens instead of monopoly over the use of
violence in a territory. Explicit social contracts are voluntary and may have
exit clauses. Persons and States are not forced to commit themselves to a
social contract they did not sign or see, compose or agree to. Political mis-
takes and experiments become reversible. The State bases its right to coerce
its citizens on their consent formalized in an explicit contract, a law code
specifying permissible coercion conditions, just as citizens base their rights to
services and protections from the State on the same contract. Voluntary social
contracts omit the “original sin–like” character of social contracts that are
“accepted” or “approved” hypothetically and implicitly “once and for all,”
either according to a social origin myth or in a hypothetical, otherworldly
thought experiment whose results may well represent mutually inconsistent
subjective intuitions. Explicit and voluntary social contracts are better than
social contracts in the standard theories of Hobbes’s Leviathan, Locke’s
Second Treatise of Government, Kant’s The Foundations of the Metaphysics
of Morals, Rousseau’s The Social Contract, Rawls’s A T,heory of Justice, and
Nozick’s Anarchy, State, and Utopia: They are neither mythical, nor hypo-
thetical, but explicit and actual, voluntary, and reversible. It is unnecessary to
speculate on what would have been an all-important original, once-and-for-all
agreement in a hypothetical situation based on what rational and free hypo-
thetical agents would have agreed on in otherworldly circumstances as the
fundamental principles of any political association, irrespective of the differ-
ent values and tastes that real, concrete people have here and now.
Panarchy allows political agents to make reversible political mistakes and
then exit and contract another State. In panarchy, the incentive for political
innovation and improvement comes from competition between States over
citizens-customers. One State may offer different social contracts and dif-
ferent policies, just like insurance companies. Socialist social contracts and
State models may be expensive, but they provide extensive safety nets. More
libertarian social contracts may be more affordable, but they offer limited
coverage. States that promote conflicting value systems and traditions may
co-exist in the same territory. States with non-competitive social contracts,
or whose management is corrupt or incompetent, would go bankrupt or be

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taken over by more successful ones, by States that wish to save a reformed
version of the unsuccessful State, or disperse themselves, just as corpora-
tions do. Enterprising and innovative new States would constantly appear
spontaneously.
Panarchy has several advantages over democratic territorial monopolies
(let alone non-democratic ones). Traditional democracies can function only
based on a broad, overlapping consensus when elections decide only a few
controversial issues. Any likely result of democratic elections may not sat-
isfy the libertarian French or the socialist American. The costs of migrating
from one sovereign State to another, such as giving up on attachments to a
geographical region where the emigrant may have family, friends, or a local
source of income, are usually high and unaffordable to many.

2. PANARCHY AND POLYCENTRICITY

There are apparent similarities between panarchy and polycentricity, con-

ceived as “a social system of many decision centers having limited and auton-
omous prerogatives and operating under an overarching set of rules” (Aligica
and Tarko 2012, 237). In greater detail: “many centers of decision making,
ordered relationships that persist in time; many legitimate rules enforcers,
single system of rules, centers of power at different organizational levels,
spontaneous order resulting from free entry and exit, the alignment between
rules and incentives (rules are considered useful), and the public involvement
in rule design (rules about changing rules, connection between rules and con-
sequences relatively transparent)” (253). Both systems reject the monocentric
“Westphalian” sovereign nation-state model as neither natural, nor inevitable,
and the homogenization of political society as neither possible, nor desirable.
Both encourage and endorse overlapping political centers, “competition,
cooperation, exit and entry procedures, and conflict resolution among the
decision centres” (Paniagua and Pourvand 2024, 11). Both consider freedom
of political entry and exit essential, especially for the generation of competi-
tion between political units (Aligica and Tarko 2012, 247).
Polycentrism is vaguer, is more complex and general, and has a broader
scope than panarchism: “[I]n some cases the decision centers are nonterrito-
rial (they have overlapping jurisdiction), in some cases they are territorially
delimitated, and some cases can be in both ways. Hence, the underlying cru-
cial question: Do indeed all those phenomena share something?” (Aligica and
Tarko 2012, 249). The broader concept of polycentricity may include much of
panarchy as a special case, except for a few properties of panarchy not shared
by polycentricity: First, advocates of polycentricity are often committed to
some form of democracy (Paniagua and Pourvand 2024). Panarchy makes

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no commitment to democracy or any other form of government, as long as

citizens can enter and exit formal and rule-governed relations in the forms of
contracts with any type of government with which they wish to experiment,
including unelected technocracy, philosophical aristocracy, hereditary mon-
archy, or, for that matter, the rule of holy fools and councils of astrologers.
Others may wish to live under one of the many types of dictatorships that
have proven popular in history. Panarchy is fine with such choices as long as
they are voluntary and reversible by allowing exit. Second, panarchy, unlike
polycentricity, does not insist on multi-scale decentralization. Non-territorial
States may experiment with large and central States and balance economies
of scale against difficulties in obtaining sufficient information for effective
policymaking, or they may prefer small boutique States with a lot of informa-
tion but high sunk costs without economies of scale. Empirical trial and error
would sort out the successful from the unsuccessful forms of government (cf.
Baldwin et al. 2023).
Polycentrism emphasizes that government centers should operate and
overlap on different scales, generating multilayered, nested structures with
emergent properties and unintended solutions (Paniagua and Pourvand 2024).
An obviously possible, though unnecessary, interpretation of “scale” is ter-
ritorial, considering the governing of a geographical region as the overlap-
ping intersections of local, regional, national, and global governments. This
interpretation preserves the historical origins of the idea of polycentricity in
the Ostroms’ analysis of metropolitan governance (Aligica and Tarko 2012,
241–44). Panarchy, by contrast, does not prescribe political scales, leaving
the optimal scales of political units to experimental discovery (cf. Baldwin
et al. 2023). Panarchism doubts that local administration of public goods—
such as garbage collection, sewage treatment, and the construction and main-
tenance of roads—has to be political, though some panarchic thinkers have
considered political hybrids that have local territorial elements combined
with non-territorial panarchy (Long 2016; Frey 2016). Kneitschel (2016)
presented panarchy as a solution for situations where regional autonomy in
a federated system is impossible because different political populations are
territorially intermingled and dispersed within each other. In complex demo-
graphics, there can be an infinite regress of minority discrimination as each
minority on a higher political level becomes a majority on a lower autono-
mous scale and proceeds to discriminate against minorities on that scale. If
those minorities win autonomy on that level, they may proceed to discrimi-
nate against minorities on that scale almost ad infinitum. Distinguishing poli-
ties from territoriality and basing politics on contractual relations between
non-territorial states and their citizens who are free to exit makes such regress
of discrimination avoidable.

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3. EXIT VERSUS MONOPOLY

The current post-Westphalian international political system is based on

regional territorial monopolies and nation-states. Each state (except for the
Knights of Malta and governments in exile) has a monopoly over a territory
and its inhabitants. The definition of a monopoly is “a situation in which a
seller is the sole source of supply for a good that has no significant substi-
tutes, when the behavior of sellers is less than competitive [and] the seller has
significant discretion over the price and whose quantity sold varies inversely
with the price” (Bishop 1968). This is an apt description of many territorial
governments. Monopolies allow price discrimination, providing an identi-
cal product for different prices to different groups, to maximize profits. A
monopoly can capture, through price discrimination, the whole market for
a product. The state territorial monopoly separates groups of constituents
and charges them different prices (taxes) to maximize its revenue (North
1986, 251).
Territorial political monopolies supply goods—like security, adjudica-
tion of disputes, etc.—that have a limited number of substitutes. In other
words, “the degree of monopoly power of the ruler . . . is a function of the
closeness of substitutes for the various groups of constituents” (North 1986,
251). North suggests two possible sources of competition: other states and
alternative elites. The fewer the substitutes, the more freedom the State has
to become despotic and the more income it is able to extract from society.
The State provides greater services for those sections of society with greater
access to substitutes such as emigration or competitors within the State. “The
former alternative depends upon the structure of competitive political units.
The more geographically proximate ones of course have an advantage. The
ruler’s efforts to gain or keep constituents will be determined by the supply
curve of protection and the marginal benefits to be derived from additional
constituents” (North 1986, 254).
Immigration opportunities and democracy decrease the monopoly power
of the State and increase competition. However, immigration is limited by
territorial monopolies that cannot handle the increasing demand for their
services. A democratic change of government does not necessarily change
policies, control the elected elite, or increase the efficiency of the State. As
North noted, the supply curve of the State, like that of all monopolies, is
U-shaped. Beyond a certain level of output, the marginal cost of production
begins to rise, and the monopoly is unable to meet the increase in demand
without a marginal increase in price. “Stagnant states can survive as long as
there is no change in the opportunity cost of the constituents at home or in the
relative strength of competitor states. This last condition usually implies that

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the state approaches the status of monopoly” (North 1986, 255–56). Modern
nation-states face increases in demand for public services: welfare, educa-
tion, urban development, crime fighting, health services, and so on. Facing
this increased demand, States behave as monopolies that cannot supply an
increase in demand without an increase in marginal price (as expressed, in
many cases, in higher taxes or debt) because their production power is lim-
ited, as expressed in their U-shaped supply curves. Hence, for the monopolist
sovereign State, more people are a problem because they generate more
demand for more services. Instead, for a service-providing firm, like the
States in panarchy, more people are a solution because they generate more
demand for services. The modern nation-state is stagnant and inefficient.
It has too few competitors or substitutes, which forces it to either find new
solutions or supply the increase in demand themselves. Instead, some “live
on credit,” borrowing capital for operational costs.
From the consumer’s perspective, the degree of monopoly is inversely
related to the degree of consumer mobility. The existing degree of immigra-
tion from one territorial monopoly to another is the actual degree of consumer
mobility in the political marketplace. Territorial monopolies that may come
under increased demand under conditions of increased consumer mobility
move to limit such mobility or elasticity in demand through immigration
controls. States, oddly in comparison to firms, reject most of their prospective
new customers. For a typical company that mass-produces products, marginal
customers are cheaper because of economies of scale that generate profit.
A different intellectual route that leads to similar conclusions is through
Albert Hirschman’s (1970) exit and voice dichotomy. Exiting from all
political associations in a world of territorial sovereign States is difficult and
expensive, even when possible. Only a small, often privileged, minority is
able to exit. As Hirschman analyzed in his famous Exit, Voice, and Loyalty,
when the quality of service of an organization like a State deteriorates, man-
agers are under pressure to improve it when faced with massive exit of their
customers. They can also attempt to dissuade exit by branding it as “deser-
tion, defection and treason” (Hirschman 1970, 17), or in politics, as seces-
sionism (cf. Buchanan 2012). Alternatively, they may be forced to listen to
the voice of the disgruntled customers. However, if there is no exit option,
or it is difficult or expensive, there is no incentive for managers to improve
service or give voice to their customers.
Limited exit possibilities, emigration, and immigration opportunities
strengthen bad States because they deprive the opposition of its most vocal
voices (Hirschman 1970, 55). As in Hirschman’s favorite example, the bad
management of the Nigerian railways, poorly managed States can withstand
the loss of revenue from the small minority that can exit because their rev-
enue is based on involuntary taxes, on exports of natural resources, or on

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selling debt. Such regimes even encourage and facilitate exit for their elite
opponents; for example, Latin American authoritarian regimes helped their
critics move to neighboring States, and the Communist Czechoslovak regime
pressured Charter 77 signatories to emigrate to the West while preventing
the vast majority of its subjects from leaving. To bring down or reform such
low-quality States, massive exit must be possible, as in 1989, when Hungary
effectively brought down the Iron Curtain by dismantling its border with
Austria and allowing massive emigration to the West from the Soviet bloc.
Had there been no regime change in East Germany, massive exit to West
Germany would have emptied East Germany of its economically active
population, leaving behind only the leaders of the Communist Party and
pensioners.
From this perspective, panarchy is a radical facilitator of exit. The possibil-
ity of a massive, costless, or very cheap exit would pressure rulers to listen
to their political customers. Even democracies can benefit from enhanced
exit options for their citizens. As Hirschman noted, when all competing firms
provide the same lousy quality products, there is no genuine exit option for
the consumer. Exit is particularly useful for victims of conflicts in places like
the Middle East. Irrespective of how such conflicts begin, they are sustained
by the absence of mass exit options.

4. NATURAL MONOPOLY? THE

TERRITORIAL FALLACY

A standard definition of State as “the political organization of a body of

people for the maintenance of order within its territory by coercion” (Gilbert
1995, 850; cf. Weber 1948, 78) assumes the State is a natural territorial
monopoly and excludes the possibility of non-territorial States. The idea of
a State monopoly over territory and a group of people who reside there has
become so entrenched that even philosophers who attempt to defend a mini-
mal State assume, unimaginatively, the territorial definition of the State; for
example: “The dominant protective association within a territory satisfies
two crucial necessary conditions for being a state: that it had the requisite
sort of monopoly over the use of force in the territory, even if this universal
protection could be provided only in a ‘redistributive fashion’” (Nozick 1974,
113). Similarly, “I use ‘the state’ to refer, roughly, to the final civil authority
(or claimant thereof) in a given geographical domain” (Schmidtz 1991, xvi).
As Wolff (1996, 56–59) noted, Nozick’s argument for statist natural ter-
ritorial monopoly is odd for a libertarian. Nozick argued that when several
proto-State protective associations compete, territorial monopolies emerge
as a result of contradictions between the regulations of different protective

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associations: when a citizen of one State or protective association acts toward

a citizen of another in a way that constitutes a crime according to the laws of
the second State, but not according to the laws of the first State (Nozick 1974,
10–25). Machan agreed with Nozick that a political monopoly is necessary
for resolving conflicts of jurisdiction about rights: “a good human community
can have only one final authority, having jurisdiction over a homogeneous
sphere of human occupancy, and commanding an enforcement agency with
loyalty to no other final authority” (Machan 1983, 513).
In Nozick’s opinion, conflicts over jurisdiction between mutual protective
associations can be resolved only in three possible ways that all lead to the
establishment of political monopoly over a territory: First, protective agen-
cies may engage in a war of annihilation in which only one agency survives
and establishes sovereignty. Second, the battle may result in a geographi-
cal division in which clients of conflicting States concentrate around their
centers of power. “In either of these two cases does there remain very much
geographical interspersal. Only one protective agency operates over a given
geographical area” (Nozick 1974, 16). Thirdly, the conflicting agencies may
reach an agreement, refer all disputes to a third authority, or divide the juris-
diction to create a federal structure. “In each of these cases, almost all the
persons in a geographical area are under some common system that judges
between their competing claims and enforces their rights” (Nozick 1974, 16).
Nozick made several unwarranted assumptions:

1. If protective associations cannot agree, they resolve their disputes

violently.
2. War is over territory.
3. Arbitration between States is necessarily federal.
4. Sovereignty resolves the problem of relations between citizens of
States with inconsistent laws.

Actually, States and protective associations rarely go to war over jurisdic-

tion. Had Nozick been right, Britain would have gone to war against Brazil
over the extradition of the “Great Train” robbers. States do not go to war over
conflicts of jurisdiction because the prospective losses considerably outweigh
the expected gains. This has been recognized since Aeschylus, Euripides, and
Lucretius, who ridiculed Agamemnon for joining the Trojan War, a war of
jurisdiction over Helen. David Friedman (1973) suggested in his account of
private protective associations a more plausible scenario of jurisdiction con-
flict resolution between protective associations that involves neither war nor
federal arrangement but voluntary arbitration:

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Whoever wins, by the time the conflict is over it will be expensive for both
sides. They might even have to start paying their employees higher wages to
make up for the risk. Then both firms will be forced to raise their rates. If they
do, . . . an aggressive new firm . . . will undercut their prices and steal their
customers. There must be a better solution . . . arbitration. In practice, once [free
market] institutions were well established, protection agencies would anticipate
such difficulties and arrange contracts in advance, before specific conflicts
occurred, specifying the arbitrator who would settle them. (Friedman 1973,
157–58. Cf. Rothbard 1996, 221–27)

War, then, is not necessarily over territory, and it does not result inevitably
in regional territorial monopolies. Economic and technological progress has
made territorial wars increasingly obsolete. When humans were pastoral-
ists, cows and goats were more important than land, and wars took the form
of raids for stealing cattle and livestock (oxen were particularly popular).
After the Neolithic Revolutions, when people developed agriculture and
came to live on and from the land, territory became the most common and
non-perishable (but illiquid) form of wealth. Then, war over it made sense.
In today’s world, the most important forms of wealth are information and
capital, not territory. The mobility and liquidity of information and capital
following the communication revolution made territorial wars as increasingly
obsolete as cattle raids. Conquering a territory makes nobody smarter, but it
makes investors withdraw capital and invest it somewhere else; for example,
Russia’s invasion of Ukraine not only made Russia’s position much worse in
the world, but even if Putin had achieved his goals, it would have done noth-
ing for improving Russia’s position in relation to the American and Chinese
superpowers. Accordingly, if war results in a division of power, this division
is not necessarily territorial.
Most importantly—and this goes to the heart of what I find wrongheaded
about much of contemporary political philosophy—Nozick, like Rawls,
attempted to support his conclusions with thought experiments when the his-
torical record not only showed that the results he reported were wrong, but
it also made such thought experiments redundant. Thought experiments are
poor and sometimes lazy substitutes for real experiments, evidence, and read-
ing history because they leave too much for intuition and implicit background
assumptions. When rich historical records and “natural experiments” are
available, relying on thought experiments is neither necessary nor desirable.
There have been many historically functioning models of mixed, overlap-
ping, and extraterritorial jurisdictions (cf. Tucker and Bellis 2016). Tribal
societies of hunters and gatherers and pastoralists based their political orga-
nization on kinship, not territory. The Greek polis was essentially a structure
of people united by law, not by a relation to a territory. When the Greeks

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colonized, the future State, the polis, its hierarchical political structure, had
already existed on the ship, before a territory was chosen. Plato represented
this political worldview in The Laws, suggesting a constitution for a colony
that had no territory. The first Puritan New England communities were based
on an explicit covenant, agreed on by the settlers irrespective of the actual
site of their settlement. The feudal state system was based on territorial ambi-
guity. The hierarchical-personal feudal relationships overlapped and were
more essential than accidental territories. The division of power between the
church, the king, and the vassals was at odds with the modern idea of a single
sovereign ruling over a single territory.
The subjugation of society, territory, and nation to a single political monop-
oly has been historically recent. An international system based on sovereignty
became dominant in Europe only following the Westphalian settlement of the
Thirty Years’ War in 1648 (Held 1997, 86–89). Outside of Europe, various
extraterritorial arrangements of mixed sovereignty existed in the Ottoman and
Chinese empires. Today, citizens of different States do business with each
other and live together in large global hubs. Following the recent invention of
decentralized contracts, the adjudication process may be automated in whole
or in part without involving any adjudication, jurisdiction, or sovereignty.
In sum, there is plenty of historical evidence that the State is not a natural
monopoly, and the Westphalian order is nothing more than an episode in
political history.

5. MORALITY AND PANARCHY

Current immigration restrictions unbalance the world economy. We live in

a world where ideas can travel freely and instantly, and censorship is chal-
lenged by technology. The movement of capital across borders has also been
liberalized. The movement of goods and trade is not nearly as free as that
of ideas, but the trend, especially since the end of the Cold War, has been
toward greater liberalization of trade despite the populist rhetoric of the last
few years. Political barriers to the movement of people and to their ability
to work in multiple geographical locations originated in the destructive and
pathological era following the First World War. They contributed to the Great
Depression of the thirties, the rise of Nazism, and the Holocaust. Though
human and labor movement has become both faster and cheaper than in any
other historical period, many of these barriers remain in place. Political bar-
riers to migration create global imbalances when people cannot chase capital
and production where they are, though they know where the capital is and
have a good idea about the benefits that geographical movement may bestow

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on them. For example, capital flows often move from riskier to less risky,
first-world environments. But workers cannot follow the capital. Vice versa,
production shifts to areas with lower labor costs, often from the first to the
third world. But first-world workers cannot follow production processes.
Barriers to human movement generate imbalances, unemployment, low
returns on investment, and scarcity of qualified labor.
Immigration restrictions in the last one hundred years have contributed to
ethical catastrophes, most notably genocide, by trapping victims in territories
they urgently needed to exit. Without immigration restrictions before and dur-
ing the Second World War, the scope of the Holocaust would have been far
more limited. The current political international system of sovereign States
is responsible for global poverty that could have been prevented had people
been able to move according to their economic interests. The misery of a
great number of people who would have had happier, more decent, and more
fulfilling lives had they been able to migrate to better places has political
rather than economic roots. The history of immigration to the United States
indicates just how much innovation, economic progress, scientific discover-
ies, and cultural contributions are prevented today by closed or impermeable
borders. Heroic, brave, and entrepreneurial individuals, a vanguard of eco-
nomic rationality and prosperity, who attempt to cross borders to improve
their lives and the lives of others, are prevented from realizing their potential
by political borders.
Thousands of migrants who die every year of drowning, thirst, and expo-
sure crossing the Mediterranean in rickety boats or the deserts into Texas and
Arizona in the United States, and the women who are trafficked into the first
world would have had decent lives if sovereign States did not prevent them
from simply walking over and finding a job. Emigrants fall prey to smuggling
gangs and traffickers who exploit them and sometimes torture and kill them
because they cannot legally take a ferry or a bus to where they have reason
to believe their fates would be better (Stevis 2015). The Economist (2015)
described this as “a moral and political disgrace.” Yet the same magazine,
in the same issue, while calling to accept political refugees from civil wars,
also called for separating them from economic migrants, ignoring the obvious
utility of economic migrants who come to work and improve the global as
well as their household income. The Economist presented people who want
to work, exactly the kind of immigrants who can create value for others, as
criminals who need to be distinguished from refugees, who are not necessar-
ily as economically valuable. The moral case for open borders is compelling
(Carens 2013, chapters 11–12).
Apart from irrational atavistic xenophobia, one reason for politically block-
ing migration is the fear that migrants may make demands on the welfare sys-
tem that would reduce its quantity as well as quality for current beneficiaries.

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Panarchy can eliminate such fears because geographical migrants are not
political migrants in a world without sovereignty: their domicile does not
affect their access to welfare, and because States that are not territorial
monopolies would react to increases in demand as commercial companies
do by expanding production and supply to maximize profits, or by creating
franchises.
Another reason often mentioned for immigration restrictions is the right of
political self-determination. Arguably, nations may lose their fragile identities
if people with different languages, cultures, and culinary habits can immi-
grate (cf. Carens 2013). By separating political affiliation from geographic
location and States from territories, panarchy allows open borders without
forcing any State to accept anybody as its citizen.
Foreign direct investment in underdeveloped, poorer parts of the world is
currently limited by insecurity and corruption. Had investors been able to
secure their investments with their own security forces and legal and judi-
cial institutions and frameworks, there would have been far more develop-
ment and less poverty throughout modern history. A world of competing
non-territorial States would lift current sovereign barriers to development.
Currently, middle-class pensioners from the north can move to many warmer
and more affordable global neighborhoods, but they cannot bring their State
services with them, especially personal security and medical benefits. Non-
territorial States may be able to offer such services globally. Panarchy would
not be heaven on earth, but from a moral perspective, it would create a
world considerably better than anything we have had so far in human history.

6. TECHNOLOGICAL AND SOCIAL PREREQUISITES

Political territorialism and sovereignty are necessary in agrarian societies

where land is limited and exit is difficult, both because the “pharaoh” has an
interest in not letting his people go and because to exit, they have to cross nat-
ural barriers like sea and desert. The old empires were based on caging popu-
lations who could not leave or could only leave at great peril and expense
(Fukuyama 2012). The rise of the nation-state in the nineteenth century coin-
cided with and was facilitated by several technological and business innova-
tions: canals and railways united national territories; the post office and the
telegraph united the national territory through information transmission; and
universal basic education united the various dialects of national languages
and allowed a unified national bureaucracy, education system, and newspa-
pers. Today, airplanes are faster, cheaper, and safer (if less convenient and
glamorous) than trains, creating a global transportation system. Electronic
communications have been replacing letters and have not just made the post

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office obsolete, but also unified the globe through the internet and satellite
communication, which are immediate and do not distinguish between the
geographically distant and the proximate. English has become the universal
language of science, the internet, and global television channels. Apart from a
thin global elite of polyglots, native English speakers tend to be monolingual,
while everybody else speaks their mother tongue and learns English.
The rise of global mega-cities and regions—like the Northeast of the
United States, from Washington, D.C., to Boston; Northern California;
London; Paris; Berlin; and Hong Kong—where many people with diverse
origins, political identities, and allegiances live and work together, have
made the nation-state obsolete in the sense that New York and London
communicate with, and are affected by, each other, far more than, say,
London and Newcastle or New York and West Virginia. People who live in
mega-cities have more in common with each other than with rural compatri-
ots. Consequently, territoriality and geographical location matters much less
than at any other time in history, as supply chains and commercial networks
span the globe irrespective of geography (Friedman 2007). The non-territorial
and global communities of inventors, entrepreneurs, and futurist visionaries,
who are used to innovation and its implementation, naturally expand their
horizons to the political realm and come up with innovative political ideas
that come close to panarchy (Frank 2015; Tucker and Bellis 2016; Srinivasan
2022; Rothblatt 2003).
The fact that technological and social prerequisites for panarchy have
been accumulating does not imply that they amount to sufficient conditions.
A hundred years ago, the steam engine and the telegraph also facilitated the
globalization of the world. Still, these inventions were followed by the most
horrendous and murderous anti-global phase in human history, which left
global trade disrupted, parts of the globe isolated, and the worst territorial
wars and destruction of human life in European history, with effects that have
lasted for seventy years. From a contemporary perspective, but also from a
nineteenth-century liberal perspective, the two world wars of the twentieth
century seem anachronistic and pointless since land matters little for pros-
perity, and natural resources can be a curse for other sectors of the economy
and for the democratic accountability of States. The fact that technological
facilitators and prerequisites for panarchy have accumulated does not imply
that the potential will be actualized, only that it can be actualized.
The growing capacity of the internet to transmit information, and of com-
puters to process it, reduces the cost and difficulties of running global enter-
prises such as States. Computers can fulfill some of the traditional functions
of government to the extent that they coincide with the operations of credit
card and insurance companies; they collect and distribute resources accord-
ing to a contract. The latest innovations allow computers to enforce contracts

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 Panarchy 179

through decentralized agreements and payments, issue currency, and set mon-
etary policy through cryptocurrencies.
Estonia has been at the forefront of the digitalization of government,
allowing it to be as ex-territorial as the internet. Estonia offers anybody in
the world the option of becoming an Estonian “e-resident.” In return for pay-
ing taxes to Estonia, its e-residents can register their companies there and
execute contracts through e-signatures according to Estonian and EU laws
and regulations. Estonia pioneered the digitalization of government, whereby
much of the interaction between citizens and the State is electronic and can
take place anywhere. Two innovations facilitate this process: e-signatures that
are safer than ink on paper and electronic identity cards. Estonia, a country
of little more than a million residents, expects a tenfold e-residency. Whether
or not ten million global citizens become virtual residents of Estonia is not
as important as the ability, through computerization, to increase exponen-
tially the number of citizens without significantly increasing the number of
government employees. Schnurer (2015) reports that Estonia plans to move
its entire government into the cloud, thus making it immune to any physical
seizure either by an invading army or by cyberattacks on its computer servers
on Estonian territory. Such entrepreneurial governments can become more
productive and profitable. In other words:

The Internet makes the potential scope of this market for extraterritorial ser-
vices infinitely broad. Governments can now offer different kinds of services
to customers located just about anywhere in the world—if only these services
can somehow be put online. . . . The more a state goes virtual, and the less its
government depends on territory and other physical resources, the more smaller,
more nimble competitors such as Estonia would be able to innovate and com-
pete for new customers. Most of the world’s governments might not be at this
point yet, but Estonia offers an indication of things to come. (Schnurer 2015)

Generally, public services and relations that involve funds and informa-
tion can be transmitted and exchanged electronically; other services can be
ordered locally via the internet, like concierge services offered by major
credit cards. Health and education could be supplied locally by contractors,
but more significantly and controversially, so could security. The last couple
of decades have witnessed a rise of private security companies and the his-
torical return of mercenary armies. Conventional states like the United States
and Nigeria hire private armies to fight their wars. More interestingly, corpo-
rations and NGOs like World Vision and Save the Children hire security firms
to protect their employees (Kinzer 2015; McFate 2014). Such security com-
panies can have the same corporate structure as any service company with
local branches. If a State does not have its own security services in a location,

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it can contract one of those companies. Historically, mercenary armies did

not offer reliable services because they could break contracts and work for
themselves against their customers or even work for the adversaries of their
customers if they outbid them. This problem is likely to be just as relevant if
States wage war. But if non-territorial States need to get small security jobs
done locally, like escort a citizen out of a danger zone or enforce a contract, a
security company will have an incentive to provide a good service rather than
sell loyalty to the highest bidder (as long as it is not a monopoly like modern
nation-states). Political services attached to social contracts can be bought
and sold on internet platforms like insurance, with “likes,” customer reviews,
and so on to help customers decide.
The emergence of global social media networks like Facebook has led
Balaji Srinivasan (2013, 2022) to suggest that political communities are los-
ing their geographical characteristics by migrating to the cloud. The relevant
distance between people is no longer geographical, but geodesic, the number
of degrees of separation on a social network. Cloud formations can lead later
to the foundation of communities and then to political formations:

Emigrants would be moving within or between nation states to become part of

a community, not to strike out on their own. . . . Unlike so-called secessionists,
the specific site of physical concentration would be a matter of convenience, not
passion; the geography incidental and not worth fighting over. Today, one of the
first and largest international reverse diasporas has assembled in Silicon Valley,
drawn by the internet to the cloud capital of technology; in fact, an incredible
64% of the Valley’s scientists and engineers hail from outside the U.S., with
43.9% of its technology companies founded by emigrants. (Srinivasan 2013)

Srinivasan, a Silicon Valley academic, entrepreneur, and investor, outlined

the political implications of the new technologies in an online bestseller
(Srinivasan 2022; cf. Tucker 2022). Facebook has far more nodes at more
places than any historical empire has ever had. Remote work is becoming
normal: “during the pandemic, every sector that had previously been socially
resistant to the internet (healthcare, education, law, finance, government
. . .) capitulated.” In the future, virtual reality may enable distant physical
work through robotic avatars. Cryptocurrencies shift monetary policies from
central banks to the diffused net. The invention of smart contracts that act
automatically when set conditions are satisfied (for example, when a property
is listed publicly as owned by a buyer, a bank account automatically sends
funds to the seller) may eliminate the need for national sovereign adjudica-
tion, laws, and enforcement.
Blockchain technology may record all financial transactions and smart
contracts publicly in a ledger to form a grand archive of humanity (Borges’s

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 Panarchy 181

Library of Babel comes to mind). “The first draft of history will be the raw
on-chain event feed, written directly to the ledger of record by billions of
writers and sensors around the world.” Some States and municipalities have
already transferred many functions to digital platforms. El Salvador uses a
cryptocurrency. Estonia offers e-citizenship; British journalist and Lib-Dem
parliamentary candidate Edward Lucas became its first e-citizen. Technology
initially facilitated the nation-state. Srinivasan points out that mapmaking
clarified fuzzy borders, printing established national tongues, and firearms
redistributed power from elites to ordinary people. One may add that canals
and railroads, the telegraph, the radio, television, and national mass media
built centralized nations. Since the middle of the last century, Srinivasan
emphasizes that technology has been decentralized and fragmented. The
internet unbundles society into its constituent parts and then re-bundles them,
like playlists in music-streaming services, by connecting peers to peers.
Migration to the web has resulted in better products that cost less, from
the post office to electronic mail, from taxis to Uber and Lyft, from maps
to GPS. Srinivasan recommends a similar migration of States to the cloud.
Srinivasan admires the founder of Zionism, Theodore Herzl, not as a nation-
alist who obsessively sought a territory to found a nation-state (he thought of
parts of Latin America or a part of present-day Kenya before being compelled
by his more romantic Zionist colleagues to settle on a return to Zion), but as
a political entrepreneur whose vision led to a (indeed, the) startup nation.
Similarly, Srinivasan wants to found political startups on the basis of preex-
isting geographically distributed communities. Cloud communities should
share common goals or an innovative moral principle. Unlike philosophical
liberals, Srinivasan does not want to construct states from abstract individu-
als according to universal constitutions. Like communitarians, he wants laws
to represent preexisting communal values: “We can apply all the techniques
of startup companies to startup societies. Financing, attracting subscribers,
calculating churn, doing customer support.” The networked community, like
Zionism, would start with crowdfunding (Herzl preferred “angel investors,”
like the Rothchilds and Hirschs, but they turned him down), followed by the
creation of a cryptocurrency, electronic passports, encrypted keys for the
citizens to access their State, and blockchains that register the State’s data:

In practice, we say that a user has consented to be governed by a startup society

if he has signed a social smart contract that gives a system administrator limited
privileges over that user’s digital life in return for admission to the startup soci-
ety. . . . Signing the social smart contract is . . . taking conscious risk with an
on-chain asset in return for admission to a digital ecosystem. (Ibid.)

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 182 Aviezer Tucker

The sovereignty of network states is the cryptographic private keys of the

administrators. Hacking those codes would constitute a political invasion.
Diplomatic relations between networked States are mutual recognitions of
protocols and formats. Networked States may have different regimes, such as
democratic, corporate, theocratic or dictatorial, if a right to exit and take one’s
cryptocurrency is respected in a prospective age of “pax Bitcoinica.” “Post-
Satoshian network states will be limited in control to people who’ve opted
into their networks” (Srinivasan 2022).Political competition will encourage
diversification and innovative experimentation. To borrow a phrase from
insurance law, networked States and their citizens may be “alluring hazards”
for legacy States and “Neolithic” populations. They may find it irresistible to
do to them what China is doing to Hong Kong or what majorities have been
doing to commercially successful minorities throughout history. Visibility
can be a vulnerability. Invasions and theft may be legitimized by accusing
network States of colonialism, money laundering, tax evasion, or narco-
trafficking. Srinivasan considers two solutions: The classical panarchist
“nonviolent digital defense through secrecy, pseudonymity, decentralization,
and encryption,” or alliances with nation-states. But historically, such alli-
ances required either a common enemy or money-laundering and tax-evasion
services for foreign elites.
Like others who developed panarchic ideas, Srinivasan wrote in ignorance
of the previous formulation of non-territorial, contractually founded states.
Lack of familiarity with the tradition that started at least in 1860 with Puydt
(2016) is hardly unusual. Even an accomplished philosopher like Moritz
Schlick, the Viennese philosopher founder of logical-positivism who came
to similar conclusions in his posthumously published book Natur und Kultur
(1952), was inspired by late-Habsburg ideas for non-territorial national auton-
omies and Augustine’s City of God, but was unaware of Puydt. The Czech
dissident Václav Benda envisioned in 1978 a “parallel polis” (Benda 1988)
of dissident communities to the late totalitarian state, again without reference
to other political theorists. More poetically, China Miéville (2009) published
a science fiction novel about two cities (reminiscent of Augustine’s City of
Man and City of God) that coexist in the same geographical space but whose
residents learn to “unsee” each other in shared “crosshatching” streets. Most
recently, the political economist and data scientist Trent MacDonald (2019)
examined non-territorial States with a thorough knowledge of the panarchic
literature. He examined non-territorial States as efficient forms of economic
unbundling, like switching from paying cable companies for bundles to pay-
ing for individual streaming services.
Less promising, in my opinion, is “seasteading,” the creation of floating
towns off the territorial waters of California, as a recent attempt to create new
States with freer entry and exit regulations. If creative political entrepreneurs

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 Panarchy 183

could not find a territory on earth, they could move to the sea and allow there,
away from any sovereignty, free immigration, labor, and trade. However,
such communities would still be territorial. Without a military, they would
be easy targets for nation-states who could occupy them merely by blocking
the shipping lanes, which would be their lifeline. The excuse for such action
could be anything from alleged drug production and dealing to tax evasion.
The American government went after banks and exchanges of cryptocurren-
cies outside of the United States because they operated without a U.S. license
and allegedly helped criminals and terrorists to move money across territorial
borders, as well as honest businessmen (Halpern 2015). Going after a territo-
rially defined and fully dependent territory is likely to be considerably easier.
Panarchy would offer all the benefits of such new States, without having to
move anywhere, let alone to the sea or to Mars.

CONCLUSION

A political free market is not heaven on earth. It will not eliminate human
misery or generate universal justice. It is simply the best procedure for select-
ing which States are the best. Panarchy offers a political mechanism for the
selection of best States that is absent from all other normative political theo-
ries, such as (i) anarchism, which seeks to avoid erecting States altogether,
(ii) certain versions of cosmopolitanism, which seek to create a world-state,
and (iii) internationalism, which reaffirms the present “Westphalian Order”
of nation-states. Unlike a universal world monopoly State, States in free com-
petition are incentivized to reform and improve while their customers gain
strong exit and voice options. Unlike present-day nation-states, non-territorial
States can offer a greater choice and variety of services, likely curtail mass
warfare, and have considerable positive effects on economic growth and
rationalization in the world economy.
Some libertarians and anarchists suggest that in a universal free market, the
State would be redundant because people could purchase from various firms
the services that single States provide today (Rothbard 1996; Sanders 1980).
But as Trent Macdonald (2019) argued convincingly, the optimal forms of
political bundling and unbundling would be experimented with and discov-
ered rather than inferred abstractly. Panarchy, unlike anarchy, allows persons
to voluntarily purchase the kind of political services they desire from a single
provider, thus exploring bundling options and reaping economies of scale.
A free and regulated political market is possible because the State is not a
natural monopoly and a regulated market can function without a monopolist
State. Is panarchy practical or otherworldly, if not a utopia? I do not have
sufficient information to answer this question. It is possible to consider where

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 184 Aviezer Tucker

there may be the demand for such States. People who currently are citizens
of weak, ineffective, or corrupt States may want to contract a supplementary
non-territorial State for higher-quality services. Citizens of relatively effec-
tive States that are small may want to contract with a non-territorial State that
offers more extensive and global services as a kind of supplementary insur-
ance. An American may purchase a Scandinavian level of welfare coverage.
With enough such non-territorial States, it may be possible to chip away at the
limits of sovereignty and eventually abolish it altogether. To quote Theodore
Herzl out of context, “If you will it, it is not a dream.”

NOTES

1. This article is based partly on Tucker (2016b and 2022). Its present composition
benefited from support from the European Union under the REFRESH—Research
Excellence for Regional Sustainability and High-Tech Industries—project number
CZ.10.03.01/00/22_003/0000048 via the Operational Programme Just Transition.

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 Chapter 8

Polycentricism, the Rule of

Law, and the Intelligibility
of Human Rights Law1

Pilar Zambrano

Opponents of “monocentric governance” frequently view polycentric struc-

tures of governance as a pragmatic solution to the inefficient way in which
modern constitutional state institutions cope with diversity (see, for example,
Müller 2019; Aligica and Tarko 2013; Paniagua and Pourvand’s discussion of
polycentric democracy and stability in chapter 5 of this volume; and Tucker’s
defense in chapter 7 of non-territorial contracts as a better way to tailor policy
solutions to citizens’ preferences). Other advocates of polycentrism are con-
cerned to promote political legitimacy (e.g., Stringham 2015; Benson 2011;
and Auerbach 1984) or else better respond to the requirements of true human
flourishing (see, for example, Thunder’s arguments in chapter 1).
In this chapter, I will build a case against monocentric paradigms of legal
order by showing that they are so far removed from the complexity and
pluralism of real legal practices that they are completely unrealistic, even if
we consider them as regulative ideals. In addition, I will make the case that
a forthrightly polycentric approach to law and legal interpretation better fits
the practice of law in contemporary society, and may help us tackle the chal-
lenges raised by legal interpretation in a post-statist, globalized world.
The argument will proceed in four stages. First, I contend that the notion
of a State monopoly over law is receding in present legal practices, both as a
fact and as an ideal. Based on various contributions from contemporary legal
philosophy, I offer an alternative, rather more complex description of existing
legal practices, which Francesco Viola calls “the legal space,” where differ-
ent kinds of bottom-up and top-down sources of law overlap with each other,

187

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 188 Pilar Zambrano

with a preeminent role for human rights law (Viola 2017, 24). Second, I argue
that a pluralist, bottom-up standard of legal legitimacy should be assessed in
the light of the wider standard of fair and efficient coordination under the
Rule of Law, while in section 3, I specify this requirement in greater detail by
proposing that the Rule of Law not only requires that the language of the law
be intelligible, but also and foremost, that judicial decisions be intelligibly
connected to the law. Fourth, I take note of the serious challenges the het-
erogeneous legal space raises for the intelligibility of the law, and hence for
the Rule of Law, most notably human rights law, which is applied to diverse
legal practices. In light of these challenges, I bring the argument to a close in
section 5 by observing the potential contribution that polycentric approaches
and conceptual categories may have in helping us more adequately address
these challenges.

1. FROM THE LEGAL SYSTEM TO THE LEGAL

SPACE: LEGALITY WITHOUT MONOPOLY

Most polycentric theories rest on the premise that the monopoly of law is a
core factual and normative element of State-centric political practices. As
these practices are generally understood, the political institutions of the con-
stitutional modern state hold the exclusive and exclusionary power to create
and apply the law within a given territory, while dominant theories of politi-
cal and legal authority are understood by polycentrists to view this monopoly
as desirable or else unavoidable from the perspective of public order. This
fact and this ideal, viewed through a polycentrist lens, impedes the modern
constitutional State from coping with the complexity of present-day Western
societies and/or harnessing the advantages associated with social complexity.
While I do not wish to challenge the soundness of these arguments
against monocentric statism, it is worth noting that the factual premise
should be somewhat qualified as a description of law, given that there is a
well-established consensus among legal philosophers that legal monopoly
is gradually declining, both as a fact and as an ideal. As legal pluralism
advances, the age of the “legal system” is being replaced by the new age of
the “legal space,” conceived as overlapping sources of law not traceable to
one sovereign lawmaker (Viola 2019, 24; Amato Mangiameli 2000, 72–80;
Periñán Gómez 2018, 81).
One of the most conspicuous signs of this ongoing transformation affects
the connection between the judicial principle of legality and the ideal of legal
monopoly, in the sphere of activity of the judiciary. The principle of legality
is typically understood to require that national courts of justice derive their
decisions from the law of the State, or from the set of values, principles, and

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 Polycentricism, the Rule of Law, and the Intelligibility 189

rules that, as a matter of fact, make up each national legal system. In other
words, not any value, principle, or rule, however reasonable, can legally jus-
tify a judicial decision: Rather, only the law created through legal procedures
by legally authorized institutions.2
Nonetheless, even if most national courts of justice continue to affirm this
principle of legality, they progressively dissociate it from the ideal of legal
monopoly. Foreign case law; observations and recommendations of treaty
bodies; decisions taken by regional human rights courts in cases where the
State is not a signatory; and all sorts of “soft law” are used to back up their
decisions, with no explanation whatsoever for why they take them to be a
valid source of law (Caroccia 2017, 87–91; Zambrano 2019, 36).
Put simply, judicial decisions frequently combine domestic norms with var-
ious foreign and global norms that were neither created nor incorporated into
the relevant legal system by the relevant domestic political institutions. This
fact highlights a progressive tendency toward legal pluralism, and a gradual
dissociation of the principle of legality from the ideal of legal monopoly.
This tendency cannot be isolated from other political transformations of
the constitutional modern State. On the contrary, it is typically explained as
a side effect of the replacement of the “Westphalian” system of international
relations by the more cooperative one, whereby States renounce their sover-
eignty, and in doing so facilitate the multilevel governance of global public
goods (Paternsman 2017, 3–9).
Take human rights, for example. These are a paradigmatic example of
global public goods that have resulted in the emergence of a multilevel type
of governance and of a new kind of “global law.” In effect, human rights are
global public goods because they are valuable to all human beings, indepen-
dent of their nationality. On the other hand, given that the threats to their
flourishing are frequently the very States that theoretically defend them, it
seems obvious that their protection can only be properly secured through
international coordination. Thus, their governance by the States, the United
Nations, and the regional systems of human rights is a paradigmatic example
of what we refer to as “multilevel governance of global public goods.” Lastly,
the international and regional systems of human rights are typical examples
of this kind of global law ruling the multilevel governance of public goods
(Paternsman 2017, 191–93).
Legal monopoly doesn’t really fit into this picture, either as a matter
of fact or as an ideal. Breaking it down from the factual point of view,
Francesco Viola observed some years ago that the multilevel governance of
human rights and legal pluralism gives rise to the age of the “legal space”
(Viola 2017, 24), a dimension of legal practice and interpretation constituted
by diverse and overlapping sources of law. While the territorial jurisdic-
tion of domestic courts is clearly defined in this age of “legal space,” their

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normative jurisdiction is oftentimes obscure and elusive. This is because the

multilevel governance of public goods produces new global or regional legal
systems that converge with domestic law in judicial decisions. The legal
space requires that judges justify not only their interpretation of the legal
sources, but also (and perhaps mainly) their qualification as “sources,” as
well (Zambrano 2019, 57).
Another important reason for the decline of legal monopoly is the global-
ization of human interactions across different fields of activity, which cannot
feasibly be coordinated through a monopolistic system of law. For example,
economic and financial globalization explains the need for common rules on
matters that are traditionally linked to the sovereignty of the States, such as
tax and financial law. This need has been addressed by international orga-
nizations (e.g., World Trade Organization/the Organization for Security and
Cooperation in Europe [OCSE]), who issue “soft law” directives that, more
often than not, are ultimately incorporated into domestic law (Rozas, Valdés,
and Coppa 2017, 67). Consequently, judges often justify their decisions using
diverse sources of law, among which the new global law plays an ever-greater
role. Therefore, even if the principle of legality still rules the judicial activity
of the modern constitutional State, the fact and the ideal of a legal monopoly
are gradually declining.

2. THE BOTTOM-UP STANDARD OF

LEGITIMACY: FAIR AND EFFICIENT
COORDINATION UNDER THE RULE OF LAW

In polycentric theories, a bottom-up standard is used to assess the legitimacy

of legal practices. With this standard, the creation and interpretation of the
law should involve the civil society, or the agents to which the law applies.
However, in the modern constitutional State, the principle of the monopoly
of the law involves a top-down way of creating and interpreting the law that
does not significantly involve the civil society, or if it does, it does so in a
marginal way.
At this point, a pressing question arises: Does the decline of the fact and
ideal of the monopoly of the law mean that the legal space better fulfills the
bottom-up criterion? Or, to put it a little differently, does the prominent role
of human rights law widen the gap between the law and civil society? Any
answer to these questions should start by distinguishing between the factual
and normative aspects of the bottom-up criterion.
From a factual point of view, one should acknowledge that many
supra-national—soft and hard—sources of the international law of human
rights arise from a complex interaction between States, international

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 Polycentricism, the Rule of Law, and the Intelligibility 191

organizations, and the so-called civil society, in which there is a considerable

space for bottom-up procedures of legal creation. Therefore, it is at the very
least disputable that the sources of human rights law necessarily exclude
the participation of civil society (Tramontana 2010, 2). Moreover, there are
entrenched conceptual devices that have been created and are presently being
used by constitutional and international courts, out of a concern for the identi-
ties of the communities to which human rights law applies. Two paradigmatic
examples are the concepts of “national margin of appreciation” and “consti-
tutional identity.” While the former is used by the European Court of Human
Rights as a self-restraint criterion in favor of the domestic courts (Garcia
Roca 2021, 245), the latter is used by domestic courts to restrain their use of
international and cross-national sources of the law (Jacobsohn 2010, 138–39;
Bruggeman and Larik 2020, 23–25). In both cases, a fundamental goal is to
safeguard the social identity of the peoples to which the law applies.
This leads us to the normative question: whether a significant participation
of civil society in the creation and interpretation of the law is enough for
assessing its legitimacy. In this respect, authors as distant in time and tradi-
tions as Joseph Raz and Thomas Aquinas have elucidated a more general cri-
terion of legitimacy that, perhaps due to its simplicity, tends to be forgotten.
According to it, the law is legitimate when it serves its final end, which is to
fairly and efficiently coordinate the actions of a group of people with a view
to the attainment of the common good of a given social practice (Aquinas,
Summa Theologie, I–II, qq. 90 and 96; Raz 1979, 248–49; 1986, 53; 2003,
13; 2006, 1031).3
According to this broad criterion of fair and efficient coordination, any
global rule is legitimate when the following conditions are met:

a. The goods and values that it attempts to attain are truly global.
b. There is a global community sharing a given practice, whose purpose is
to secure those global goods and values.
c. There is an aspect of the practice that seeks coordination, which the
global rule affords.
d. The coordination is not only necessary, but also fair and efficient under
the Rule of Law.

Given that bottom-up procedures of creation and interpretation of the law

involve the agents of the practice that the law purports to govern, they obvi-
ously fulfil the first three conditions. Nonetheless, as many authors who are
concerned with the steady emergence of different kinds of “populism” in
Western constitutional practices remark, civil participation doesn’t necessar-
ily secure the legitimacy of the law, which also (and perhaps mostly) depends
on the fourth condition: fair and efficient coordination under the Rule of Law.

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Moreover, many populist theories explicitly claim that the Rule of Law cur-
tails the legitimate space for the participation of civil society in public affairs
(Cianciardo 2022, 51–54).
Saving the various discussions regarding which are the conditions of fair
and efficient coordination, there is also ample consensus that, at the very
least, they comprise the formal desiderata of the Rule of Law.4 Within this
frame, the relevant issue is whether and how the participation of civil society
in the creation and interpretation of the law—the bottom-up standard—rein-
forces, at the very least, these formal desiderata.

3. CORE FORMAL DESIDERATA OF THE RULE

OF LAW: THREE LEVELS OF INTELLIGIBILITY

Among the formal desiderata of the Rule of Law, the most basic is the
adjustment of all government actions to the sources of the “law,” or—what
amounts to the same thing—to the set of values, principles, and rules that, as
a matter of fact, make up each legal system. This foundation in law has its
own requirements.5
First, not just any value, principle, or rule, however reasonable, serves to
validate a government action. Although it seems redundant, the law in ques-
tion must be the law in force: that is, the law that has been produced as “law”
by legally authorized institutions, through procedures indicated as appropri-
ate to create, modify, or extinguish law. In this light, the principle of legality
is not only a way of reinforcing the monopoly of the law of the modern State,
but also (and perhaps mainly) a requirement of the Rule of Law. As mentioned
above, it is this latter function that best explains its endurance in a time of
diverse and overlapping legal systems without a single sovereign lawmaker,
or what we have been referring to as the “legal space.”
Second, the legality of government actions must be intelligible, that is,
understandable or accessible to the reasoning of the general public or, at the
very least, to the main parties affected by the government’s action. Third, in
addition to intelligible, the legality of all actions by the government must be
public. That is, it must be brought to the attention, if not of the general public,
at least of the main parties affected by it.6
At the judicial level, the principle of legality involves a fourth condition,
which doesn’t necessarily apply to other fields of public action: Judicial
decisions are not only required to be intelligibly and publicly grounded in the
sources of the law, but they also must be publicly argued. Not just any kind
of argumentation will suffice to make a judicial decision public, but only one
that is intelligible, both in itself and to the reasoning of the general public or,
at the very least, to the main parties affected by it.

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 Polycentricism, the Rule of Law, and the Intelligibility 193

Among the numerous reasons for demanding an intelligible argument at

the judicial level, the most obvious one is that judicial decisions are supposed
to resolve interpretative controversies about how to apply the law to the facts
in dispute. Furthermore, only when the connection of a judicial decision with
the current law is explicitly and intelligibly argued, can it also be said that law
is prospective, which is another desideratum of the Rule of Law. If judicial
decisions were based on values, principles, and rules that were only intel-
ligible to the judge, they would be unpredictable and, consequently, unable
to generate reasonable, forward-looking expectations about the meaning and
application of the law.7
To summarize, the Rule of Law not only requires that all public actions be
founded on the law, but also that this foundation be intelligible, public, and,
when it comes to judicial decisions, intelligibly argued. From this, it can be
concluded that the formal desiderata of the Rule of Law rest, first and fore-
most, on the intelligibility of the set of institutional facts through which the
sources of the law are created; second, on the intelligibility of the language of
the sources of the law; third, on the intelligibility of the argumentation of the
legality of judicial decisions. The intelligibility in all these three dimensions
is, in short, a logical condition of the principle of legality, which is a condition
of the formal desiderata of publicity and prospectivity of Rule of Law, which
is a condition of any form of fair and efficient coordination.

4. THE LEGAL SPACE AND CHALLENGES

FOR THE INTELLIGIBILITY OF THE LAW

There is broad agreement in the philosophy of legal interpretation that at

least three conditions should be met for the law to be intelligible and thus in
conformity with the Rule of Law:

a. Institutional facts are intelligible when they comply with the appropriate
institutional rules. Applying the law obviously involves identifying the
law, which, in turn, involves identifying the acts through which the law
was created. This identification requires that the acts creating law abide
by the relevant institutional rules (e.g., constitutional rules allocating
competence between different branches of government).
b. The language of the law is intelligible when it complies with the appro-
priate discursive rules. Interpreting the law entails identifying its core
legal meaning and distinguishing it from the zone of doubt or penum-
bra. This identification and distinction require that the language of the
law abide by the relevant lexicographical and discursive rules (e.g.,

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rules affording meaning to the concept of “liberty” in the Fourteenth

Amendment, according to the case law of American constitutionalism).
c. Institutional and discursive rules are the object of shared knowledge. All
relevant participants should know how to identify, understand, and use
the institutional rules that make institutional facts intelligible, and the
discursive rules that make the language of the law intelligible (Marmor
2005, 17–18; 2014, 26).

The third condition doesn’t arise from thin air. On the contrary, participants
learn how to use rules conferring institutional meaning upon actions, and
discursive rules affording legal meaning to legal statements, when they share
an underlying understanding of the ends, purposes, or values that both kinds
of rules are meant to support. Last but not least, the shared understanding of
values springs from shared practices through which these values are instanti-
ated and developed.
At this point, we can establish a simple proviso of intelligibility: the
broader and deeper the shared knowledge of values is, the broader the shared
knowledge of institutional and discursive rules is, and the easier it is to
intelligibly argue judicial decisions. On the contrary, the narrower and more
superficial the shared knowledge of values is, the thinner the knowledge of
institutional and discursive rules is, and the more difficult it is to intelligibly
argue judicial decisions.
The right to a fair trial is a good example of the way in which this proviso
works. There are references to it in all three founding constitutional Bills
of Rights8; in the Universal Declaration of Human Rights of 19499; in the
International Convention of Civil and Political Rights10; and in each of the
three Regional Conventions of Human Rights.11 Its acknowledgment, in fact,
goes back to the famous Magna Carta of 1215 or, much longer before, to the
episode of Susan and the Old Men, in the book of Daniel:

Taking his stand in the midst of them, he said, “Are you such fools, you sons
of Israel? Have you condemned a daughter of Israel without examination and
without learning the facts? Return to the place of judgment. For these men have
borne false witness against her.” Then all the people returned in haste. And the
elders said to him, “Come, sit among us and inform us, for God has given you
that right.” And Daniel said to them, “Separate them far from each other, and I
will examine them.” (Daniel 13:1–9, 15–17, 31–62).

To some extent, there appear to be traces of this right in non-Western cultures,

too. Wangari Maathai elaborates on this:

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 Polycentricism, the Rule of Law, and the Intelligibility 195

The Oromo of Ethiopia and Kenya deem the scepter tree (also known as the
bokku) a suitable place for officials of the traditional courts to gather. The
judges [that] form the Massai and Kalenjin communities traditionally sat under
a tree, and once ensconced beneath it one was obliged to tell the truth—much
as placing one’s hand on the bible is meant to encourage honesty in a court of
law today. (Maathai 2010, 85).

Now, taking all these global anecdotes into account, we can draw the conclu-
sion that there is a long-standing global/transcultural acknowledgment of the
right to a fair trial. However, another question is, how do we abide by this
abstract right? Does failing to interrogate and cross-question the witnesses
of the prosecution amount to its abrogation, as the prophet Daniel claimed
as long ago as 167 BC? Or alternatively, are the ceremonies of placing one’s
hand on the Bible, or sitting under a chosen (perhaps sacred) tree, sufficient
guarantees of the honesty of the witnesses?
The Rule of Law requires that any answer to these questions be argued in
an intelligible way at the judicial level. Arguing intelligibly involves using
the relevant institutional rules affording legal force to the sources of the law,
and the relevant discursive rules affording them legal meaning. Nonetheless,
the identification of this or that type of rules stands on the particular ways
through which, as a matter of historical fact, each community has instantiated
(and thus understood) the values endorsed by the right to a fair trial. Thus, the
question remains: According to which shared practice and underlying under-
standing should the interpretation of the global right to a fair trial be argued?
Recall that the main feature of the “legal space” characteristic of our glo-
balized and deeply interconnected systems of law is legal pluralism, where
global law at large (and the international law of human rights, in particular)
coexists with local legal systems. In this context, the international law of
human rights doesn’t purport to replace local law, let alone local cultures,
except in the very exceptional cases where one and/or the other are inhuman
from the perspective of all cultures. In other words, the international law of
human rights is not expected to replace local cultures, but instead, it is meant
to be trans-cultural. Nonetheless, if shared practical knowledge arises from
shared practices, the more trans-cultural any rule is, the more detached it is
from fully contextualized social practices, and thus the more difficult it is to
argue its interpretation in a way that is intelligible to the affected parties.
This condemns us to a deadlock. On the one hand, we need human rights
international law for securing global goods. On the other hand, the more
global this law is, the less it fits with the particular way in which different
communities understand and endorse these rights. If this is so, then the inter-
national law of human rights would appear to be more difficult to argue for
intelligibly, putting in question its consistency with the Rule of Law. Hence,

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some authors argue that the main challenge to its legitimacy is, in fact, its
global range of application (Seligman 2021, 426–39).

CONCLUSION: THE PROMISE OF THE

BOTTOM-UP STANDARD OF LEGITIMACY

We opened this chapter by observing that the monopoly of the law is fading
away, both as an ideal and as a fact. This decline is in direct proportion to
the rise of legal pluralism and the proliferation of global rules in the age of
the legal space, the international law of human rights being a paradigmatic
example of the latter. We next argued that the bottom-up standard of legiti-
macy is subsidiary to the broader one of fair and efficient coordination under
the Rule of Law. More specifically, we contended that the relevant issue is
not so much—or at least not only—how much room is afforded to civil soci-
ety for the creation and interpretation of the law, but whether and how this
participation of civil society can be consistent with the formal desiderata of
the Rule of Law, in particular in a complex and pluralist legal environment.
To explore this question, we reviewed the challenges that the legal space
raises for the intelligibility of the law, focusing our analysis on the interna-
tional law of human rights. We pointed out that the global character of human
rights law loosens the law’s connection with the particular ways in which
each community instantiates the rights it is supposed to grant. We argued that
this untethering of human rights law from local legal practices undermines its
intelligibility and, therefore too, its accommodation to the formal desiderata
of the Rule of Law. This, in turn, led us to a conundrum: we need the inter-
national law of human rights because securing them depends on some form
of global coordination. Nonetheless, the more global the human rights law is,
the less it is connected to local practices and identities, the less its chances of
being substantially intelligible to affected parties and, thus, the less its capac-
ity to fairly and efficiently coordinate international relations.
Having reached this point, we can now address the core question, namely,
how, if at all, does the bottom-up criterion of legitimacy help us to address
this puzzle? The answer might be found in the epistemic priority of social
practices over global rules, which is involved in the criterion of fair and
efficient coordination under the Rule of Law. To put it simply, the closer any
procedure of legal creation and interpretation is to the nature of the social
practice to which the law purports to apply, the higher its chances of enhanc-
ing the intelligibility of the law and, by the same token, the formal desid-
erata of the Rule of Law. Given that bottom-up procedures of creating and
interpreting the law are obviously closer to social practices than top-down

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 Polycentricism, the Rule of Law, and the Intelligibility 197

procedures, our second conclusion is that, at least prima facie, bottom-up

procedures are more legitimate than their top-down counterparts.
Polycentric theorists of law have a leading role to play in turning this prima
facie assessment into a conclusive one. In so doing, they should explore
whether the existing bottom-up procedures within the legal space are enough
to secure the Rule of Law, and if not, which institutional transformations or
innovations are necessary to this end. This analysis should take into consider-
ation all the salient facts that make up the legal space, facts that we have high-
lighted in this chapter: legal pluralism; the prominent role of international
human rights law in judicial argumentation; the steady detachment of the
principle of legality from the monopoly of the law; and the standing (concep-
tual or institutional) devices that purport to bridge international human rights
law with the identity of the communities to which it applies. To the extent that
these devices assume that States are the smallest viable units of governance,
a promising line of study for polycentric studies might be to explore how to
extend those devices to yet smaller units of governance.

NOTES

1. I express my gratitude to David Thunder, Borja López Jurado, Julio Pohl, and
Mariana MacMillan, for their insightful formal and substantial observations to a first
version of this work, which were incorporated to this final, unquestionably better one.
2. Beyond the debate around the differences between the Rule of Law within the
context of a law-making State and the Rule of Law in non-State-controlled contexts
(Rule of Law versus state of law (“estado de derecho”), no one disputes the idea that
they both share the formal desideratum of legality (Trujillo 2015, 164). Along these
lines, Ferrajoli points out that “current” law is a necessary and undisputed source of
any judicial decision in legal practices that purport to avow the Rule of Law (Ferrajoli
2016, 24).
3. While some authors of the Natural Law Tradition contend that the political com-
mon good is equivalent to respect for human rights, others counter that this is only
one dimension of the political common good. John Finnis tailored his position on this
issue, as he explains in his postscript to Natural Law and Natural Rights (2011, 459).
On this debate, and on Finnis’s turn, see Ortíz de Landázuri (2020, 564, footnote 38).
4. Beyond the debate about whether the Rule of Law, either in the common law
sense or in the more statist, continental sense of the term (which is rendered in Span-
ish as “law of State,” “estado de derecho”), contains substantive requirements in
addition to the formal ones, the formal requirement of legality—the Rule of Law as
opposed to the rule of men—is, without a doubt, central to both conceptions of the
Rule of Law (Trujillo 2015, 164).
5. Ferrajoli points out that the “law currently in force” is the necessary and
undisputed source of any judicial decision in a Rule of Law, and it defines the “law

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 198 Pilar Zambrano

currently in force” as the set of legislative normative statements. He also distinguishes

the “law currently in force” from the “living law,” which would add to the “law cur-
rently in force” the practice of its judicial interpretation, in Ferrajoli (2016, 24). At
this point, we use the expression “law in force” in a broad sense, that also includes
“living law.”
6. The European Court of Human Rights is very explicit in stating that the expres-
sion “according to law” not only requires that “restrictive measures of individual lib-
erty have some basis in domestic law, but also that they are accessible to the affected
person, and formulated in terms precise enough so that the person can foresee its
effects” (see, among other cases, ECHR, Landvreugd vs. The Netherlands, June 4,
2002, ¶ 54; Maestri v. Italy, February 17, 2004, ¶ 30). The requirements of precision,
accessibility, and predictability were also enumerated by the Inter-American Court of
Human Rights, in López Mendoza v. Venezuela, ¶ 199.
7. Ferrajoli points out, along similar lines, that the principle of legality requires
judicial decisions to be argued around the value of “truth”—meaning “truth” as the
adequacy of the law in force. See Ferrajoli (2016, 33).
8. Thus, the English Bill of Rights of 1689 states that “jurors ought to be duly
impanelled and returned, and jurors which pass upon men in trials for high treason
ought to be freeholders . . . all grants and promises of fines and forfeitures of particu-
lar persons before conviction are illegal and void.” Similarly, the American Bill of
Rights of 1791 states in its Fifth Amendment that “(i)n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury of the
state and district wherein the crime shall have been committed, which district shall
have been previously ascertained by law”; while the French Declaration of the Rights
of Man and Citizen of 1789, article VII, commands that “No man should be accused,
arrested, or held in confinement, except in cases determined by the law, and according
to the forms which it has prescribed.”
9. Article 10: “Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and obligations
and of any criminal charge against him.”
10. Article 14: “All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and obligations in
a suit at law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law.”
11. European Convention on Human Rights, article 6; American Convention on
Human Rights, article 8; African Charter on Human and Peoples´ Rights, article 7.

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 Chapter 9

The Constitution of Liberties

Polycentric Constitutionalism and
the Westminster Export Model1

W. Elliot Bulmer

This chapter explores the practical application of polycentricity in constitu-

tional terms. It investigates the extent to which polycentrism can be realized
within the framework of the modern liberal-democratic constitutional State.
Much of modern Western constitutional thought since the French Revolution
has been based on monocentric notions: “The People” is often construed as a
singular collective actor, expressing a “national will” and possessing nominal
sovereignty, in whose name constitutions are made and remade, and from
whom all public powers are derived (Arato 2016).
However, monocentric popular sovereignty is not the only foundation for
modern constitutionalism. There are other strands of constitutional thought
and practice that may be more amenable to polycentric interpretations. In par-
ticular, while the British-derived constitutions that spread around the world in
the decolonization era mostly copied the majoritarian governance structures
of “Westminster Model” parliamentary democracy, they also responded to the
needs of divided societies by incorporating an array of innovative approaches
to the problem of “deep, pervasive and persistent disagreements” (Müller
2020), including on matters of religion and identity (de Smith 1964).
In contrast to the French republican constitutional tradition—which is
based upon a monocentric constituent power rooted in popular sovereignty,
and which sees the constitution as the expression of the will of one united
sovereign—Westminster Model constitutionalism has recognized that suc-
cessful constitutions are often the result of negotiations, agreements, and
compromises made between multiple actors, each seeking to recognize

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certain liberties, autonomies, or privileges. Westminster Model constitutions

therefore often established liberal-democratic States in a pluralist, rather
than unitarist, form. They incorporated bills of rights that not only protected
individual freedoms, but also created space (through freedoms of assembly,
association, expression, and religion; rights to private and family life; and
other such provisions) for distinct communities, such as religious communi-
ties, schools, and households, to freely operate according to their own norms,
under their own leadership, to realize their own telos, while protecting the
modus vivendi with other groups in a polycentric constitutional order. They
are replete with special rights, privileges, exceptions, and peculiarities that
may be extended to regions or provinces, ethnic or linguistic groups, or reli-
gious minorities. In contrast to the French republican model of a constitution
of sovereignty, the Westminster Model—while still favoring, where possible,
strong, effective, active government (Jennings 1963)—embraced a constitu-
tion of liberties, through which particular autonomies could be protected.
Moreover, these constitutions were, in many cases, the result of negotiated
bargains, giving recognition to multiple “peoples” and to overlapping and
abutting spheres of authority. This includes traditional leadership, customary
law, religious law, and various forms of both territorial and non-territorial
autonomy for particular groups who saw themselves as possessing an internal
solidarity and an inherent source of authority that had to be recognized by, but
was not derived from, the State.
This chapter consists of three substantive sections. Section 1 examines,
briefly, what I mean by polycentrism in the constitutional sense, and it
distinguishes this from other, more economic or sociological notions of
polycentrism. Section 2 looks at the French republican model of constitu-
tional theory—the monocentric constitution of sovereignty against which
the Westminster Model’s polycentric constitution of liberties can then be
contrasted. The third—and longest—section then defines the Westminster
Model, and considers several examples of this polycentric constitution of
liberties in the Westminster tradition.
The examples are selected to be illustrative of the various modes and
forms that polycentric constitutionalism can take, whether in developed or
developing countries, in old or new democracies, or on different continents.
What unites them all is that they each arise not from a single, unified, sov-
ereign constituent power, but from a compromise settlement, whether that
is between communities each having a sense of themselves as distinct col-
lective actors engaged in constitutional negotiations, or between different
normative sources of political and legal authority (state law versus traditional
law). In each of these cases, the constitution is presented as an instrument
that guarantees the rights of particular communities to recognition, repre-
sentation, or some form of self-government, within the overall constitutional

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framework. These examples contribute to polycentric theory by providing

worked examples of real, if minimal, polycentrism. They show that mod-
ern liberal-democratic constitutions not only have to be designed to apply
universal norms to undifferentiated, atomized individuals operating under
unitary sovereignty, but they can also seek to recognize and protect territo-
rial, religious, or cultural communities of identity and belonging. Drawing on
these examples, this chapter concludes that embracing polycentrism in prac-
tical constitutional terms may not necessarily require new (or radically old)
constitutional ideas and practices, but it could be achieved within prevailing
constitutional models.

1. CONSTITUTIONAL POLYCENTRICITY

For the purposes of this argument, polycentricity is defined as a “social sys-

tem of many decision centres having limited and autonomous prerogatives
and operating under an overarching set of rules” (Polanyi 1951). By “lim-
ited and autonomous,” it is understood that powers have limits, set by those
overarching rules, but that within those limits those powers may be exercised
autonomously. An obvious example of that would be a system of federalism
in which states or provinces have autonomy within certain constitutionally
defined policy areas, although it would also be possible to imagine this idea
of autonomy-within-limits in a non-territorial sense, applied, for example, to
religious, linguistic, or vocational communities.2
At the most basic level, all modern democratic constitutions—meaning
here written, supreme, and fundamental law constitutions, not mere assem-
blages of custom or convention (Bulmer 2017)—are polycentric to some
degree. They all have the potential to create many decision-centres. There
might be different branches of government, including not only the classic
three branches of late eighteenth-century theorists, but also non-executive
heads of state, the civil service, and independent commissions like the elec-
toral commission. There might also be different levels of government: local
authorities, and in a federal system, state, provincial, or regional govern-
ments. Each of these is established by the constitution, and granted a certain
limited autonomy within its own sphere, but it remains subject to the over-
arching rules of the constitution.
Even constitutions inspired by the French republican tradition create mul-
tiple governing institutions and divide powers between them. The difference
between that tradition and the Westminster Model tradition is, in part, a mat-
ter of degree, emphasis, tone, and approach. It is also a matter of sovereignty
and constituent power, which in the French republican tradition remains—as
will be discussed below—monocentric, but which in the Westminster Model

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tradition is often polycentric. This difference is seen most clearly in the power
to amend the constitution, which in the French republican tradition is usually
a matter of the sovereign people speaking authoritatively, with one voice, by
means of a national referendum, and which in the Westminster Model tradi-
tion, by contrast, often involves veto mechanisms designed to protect par-
ticular constitutionally guaranteed autonomies (examples of this—in Canada,
Malaysia, and Saint Kitts and Nevis—are provided in the fourth section).
This chapter is not concerned with polycentricity as a whole system of
social organization, only as a system of constitutional organization. Thicker
models of social and economic polycentricity, including those that are more
on the libertarian end of the political spectrum and/or suspicious of State
power, form no part of my argument. Furthermore, the polycentric features
of Westminster Model constitutionalism were not a result of any principled
commitment to polycentrism as a normative political theory, but rather they
are practical expedients arising out of the need to constitute diverse ter-
ritories with diverse cultures and strongly variegated political institutions.
Polycentric constitutionalism is not a recipe for minimal government. Indeed,
the constitutional polycentrism that is here presented and commended is
compatible with a large, active, interventionist, regulatory, redistributist
State, which pursues common ends. It does, however, require the State, as
a complex, polycentric entity rather than as a single, unitary, concentrated
source of power, to engage in a process of dialogue, negotiation, and mutual
restraint, in the process of making and implementing policies. There might be
important “carve outs,” where specific minorities have specific exemptions,
or forms of autonomy, that are protected by the constitution.
However, polycentric constitutionalism, at the formal, legal, and institu-
tional levels, often does reflect polycentricity in society, in terms of its social
structures and its communities of faith, language, and belonging. As will be
argued below, polycentrism in the Westminster Model constitutional tradi-
tion was embraced not out of a principled commitment to the dispersal of
power, but out of a pragmatic need to manage difference in divided societies
(Choudhry 2008; Lerner 2011). In the form here presented, polycentric con-
stitutionalism arises in situations where the polity cannot arise from one, uni-
fied, undifferentiated society, in which people are interchangeable, fungible
individuals, and which has one shared telos and one general will. Rather, it
arises from a society-of-societies, which are joined together at the constitu-
tionalism level, perhaps for very pragmatic reasons of defense or economic
opportunities, and which can work only if it coordinates these constituent
parts in matters of common concern while also respecting their autonomy in
matters that pertain only to themselves.
Thus polycentric constitutionalism can be regarded, borrowing Elazar’s
classic definition of federalism, as a combination of “shared rule” and “self

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rule” (Elazar 1987). It should be noted, however, that federalism—as a partic-

ular form of territorial dispersal of power—is only one type of polycentrism.
It is also possible to imagine the combination of shared rule and self-rule on
other, non-territorial, grounds. For example, power may be shared at a consti-
tutional level between religious and secular authorities, or between different
ethno-cultural or linguistic groups, who have rights to cultural autonomy in
certain spheres of policy, without exercising control over a particular terri-
tory. Some examples are set out later in this chapter, but they would include
such matters as Muslims in Kenya having their own courts for matters of
Muslim personal status law, or Francophone Roman Catholics in Ontario
having their own school boards for that community.

2. POPULAR SOVEREIGNTY AND

CONSTITUENT POWER

This section outlines the monocentric “constitution of sovereignty,” which

will then be contrasted with the polycentric “constitution of liberties” set out
in the subsequent. The great theorist of the constitution of sovereignty is Jean-
Jacques Rousseau. Rousseau’s constitutional scheme—expressed as a theo-
retical model, but loosely based upon an imagined and purified version of his
native Geneva—is set out in Book IV of Du Contract Social.3 It is founded,
almost to an obsessive degree, on the elimination of polycentrism. Rousseau’s
ideal polity is all-embracing. There must be no form of independent, autono-
mous, or spontaneous political or social organization within it. Parties are
prohibited. Guilds are prohibited. Deliberation should take place only in the
duly constituted public bodies, never in private spaces. Rousseau does not
advocate direct democracy, because for Rousseau, democracy is a form of
government, and he is very clear to distinguish government—the day-to-day
management of public affairs—from acts of sovereignty. Government, in
Rousseau’s scheme, can be delegated to various councils and magistrates,
who may be elected or selected in various ways. What cannot be delegated
is sovereignty: sovereignty is always exercised directly by the people, and
is absolute. Rousseau does not say that government should be absolute. Far
from it. Government can be tightly controlled, existing only under delegation
from the sovereign people. The people are only truly and absolutely sovereign
when acting in their constituent capacity, not when acting in their constituted
capacity as electors (Rousseau 2004/1762; Rosenblatt 2009).
This distinction between sovereignty and government was later developed
by Abbé Sieyes, distinguishing between constituent power and constituted
institutions (Rubinelli 2020). To constitutional scholars shaped by the French
republican tradition, sovereign power is constituent power and constituent

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 206 W. Elliot Bulmer

power is sovereign power. When they say the people are sovereign, they
mean the people possess constituent power; the sovereignty of the people
is expressed in making and amending constitutions. According to this way
of thinking about the origin and nature of constitutions, the People (note the
capitalization and its use as a singular form) is a unitary actor. The sovereign
people has a general will, and that general will is expressed in the constitu-
tion. The constitution is, therefore, an order of the sovereign people, and not
a compact or settlement of the people (plural, uncapitalized) who constitute
the state.
This view depends on the unity and interchangeability of the people. If the
People is a unitary actor, divisions within that body are politically irrelevant.
It would not matter if all the votes for a constitutional change came from
one region, and all the votes against were from another region; each vote
would be counted equally, fungibly, as indistinguishable parts of one whole
body-politic, one monocentric sovereign, in which the majority would decide.
It would be alien to this tradition to see the constitution as a pact or bargain,
struck between the peoples of the two regions, each of which, while entering
into that pact or bargain, and being willing to have shared government over
certain shared concerns, nevertheless retains some of its own identity, and
some distinct, polycentric agency over constitutional decision-making.
The French republican model is important not only because of its influ-
ence in France and across much of northern Africa, but also because it
seems to form a kind of background assumption in so much of the theo-
retical discussion of constitutions and constitution-making. The point here
is not to denigrate or deny that tradition, but simply to point to a different,
less-monocentric, more-polycentric, way of understanding the nature and ori-
gins of written constitutions: a way that focuses less on the sovereign will of
the people as a constituent actor and more on the liberties of particular groups
or communities within a constitutional pact.

3. WESTMINSTER MODEL CONSTITUTIONALISM

The term Westminster Model is subject to contested definitions and, accord-

ing to the comparative constitutional scholar S. A. de Smith, “will never be a
term of art” (de Smith 1964). Arend Lijphart defined the Westminster Model
in terms of majoritarian government, which is characterized by First Past the
Post Elections, two party politics, executive dominance, and a unitary state
with a lack of constitutional restraints on the exercise of power (Lijphart
1999). This, however, is a mis-categorization. Countries may have propor-
tional representation and multi-party politics (as in Fiji, Ireland, and New
Zealand), and yet still be recognizable examples of the Westminster Model.

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Likewise, countries can have highly complex federal systems, or a strong

judicial review of fundamental rights (as in Canada, India, or Malaysia) and
still belong to the Westminster Model family. The “Westminsterness” of these
countries lies elsewhere, not in their macro-institutional design, but in their
embedded constitutional traditions; they are all descended from, or influ-
enced by, the system of parliamentary government that emerged in Britain in
the eighteenth century, and which, in the nineteenth and twentieth centuries,
spread around the world through the processes of colonialism and decoloniza-
tion (Bulmer 2020a).
The constitutional arrangements differ in detail from country to country,
but despite the variety of national adaptations and deviations, they are still
substantially held together by common history and by an enduring similar-
ity of institutions, laws, ideas, norms, and practices. They share the same
lexicon, the same foundational literature, and even a degree of overlapping
jurisprudence—all derived, directly or indirectly, from British-imperial con-
stitutional foundations. “Westminster Model” constitutions are strictly parlia-
mentary, with a separation of functions between a ceremonial head of state
and an executive prime minister (de Smith 1964). They are bound by a series
of rules—whether conventional or written into the text of the constitution—
regulating such matters as the selection and the removal of the prime minister,
the relationship between the government and Parliament, and between the
government and the opposition (Twomey 2018). Those rules are derived, with
more or less deviation and adaptation to context, from nineteenth-century
British practice, as described by canonical writers such as Walter Bagehot
(Smith 2001) and A.V. Dicey (Dicey 1915). These constitutions are held
together by a set of assumptions shaped by British parliamentary, judicial,
and administrative traditions. Sometimes this is made explicit. Canada’s
constitution declares itself to be “similar in principle to that of the United
Kingdom.” At other times, it is implicit, marked by a common terminology
and lexicon shaped by British historical practice.
Although the United Kingdom has not adopted a written constitution
(defined here as a “codified supreme and fundamental law”), written con-
stitutions are not alien to the tradition of Westminster Model democracy.
As it spread across the British Empire and later the Commonwealth, the
Westminster Model gradually assumed more rigid and definite constitutional
forms, culminating in the written constitutions of the de-colonization era.
Almost all the countries that became independent from the British Empire
in the twentieth century did so under a written constitution (de Smith 1961).
Israel, which had been a mandated territory, is the only exception, and that
was not for want of trying (Lerner 2011; Navot 2014). From the Caribbean
to the South Pacific, from southern Africa to the foothills of the Himalayas,
remarkably similar written constitutions came off the press. These replicated,

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with greater or lesser variations to adapt them to their context, the institutions
of the British system of parliamentary democracy, but they did not replicate
its core principle of parliamentary sovereignty; instead, these institutions
were embedded in a codified legal document that was superior in the hierar-
chy of laws to ordinary Acts of Parliament and that could only be amended by
a special, and more onerous, constitutional amendment process.
In so shifting from a system of parliamentary sovereignty to one of constitu-
tional supremacy, the Westminster Model constitutions of the de-colonization
era introduced a distinction—unknown in the United Kingdom itself—
between the legislative power on the one hand and the constituent power
on the other, with the former strictly subordinated to the latter. This, in turn,
created a need to justify constituent power; that is, to provide a coherent
and widely acceptable account of the legitimacy of the limitations that the
constituent power, through the constitution as the enduring expression of
its will, might impose on the legislative power. This is the basic problem
of constitutional entrenchment to which the democratic theorists of parlia-
mentary sovereignty point (Bellamy 2007; Jones 2020): How can an Act of
Parliament, enacted by the representatives of the people today, legitimately be
nullified by a court upholding a constitution enacted decades or generations
ago? What gives one generation the right to bind or complicate the choices of
future generations? Why should a minority have protection, at a constitutional
level, against the decisions of the majority?
In answering this question, Westminster Model constitutions are, in com-
parison with the French revolutionary tradition, less obsessed with popular
sovereignty. Legitimacy comes not so much from a single constituent act,
as from adherence to a certain inherited or imported tradition of democracy,
which can trace its lineage, through the Whig interpretation of Anglo-British
history, back to the Magna Carta, the Petition of Right, the Habeas Corpus Act,
the Glorious Revolution and the Bill of Rights Act, the Act of Settlement, the
Great Reform Act, the Parliament Acts, and—in parallel to these legislative
landmarks—to the accepted conventions of cabinet government, parliamen-
tary democracy, and responsible party government, which all came together
in the high-Edwardian age of imperial democracy.
This tradition was widely accepted as good, valuable, and worth keeping.
Even where a deliberate effort was made to study and learn from all the con-
stitutions of the world—as undertaken, for example, by B. S. Rao in India—
still the British model exerted a powerful gravitational pull. In the 1950s and
1960s, the international reputation of British democracy was riding high. S.
A. de Smith could famously portray the last person to say, “‘British is best’
as an anti-imperial nationalist on an obscure tropical island” (de Smith 1961,
1). In the same way, Sir Ivor Jennings, in his thinly fictionalized Constitution
Making in Arcady, could with credibility describe a fiercely anti-imperialist

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African, who, having once been imprisoned for sedition by the British
authorities, used his time in jail to study English constitutional law, and later,
after having made the transition from imprisoned dissident to national leader,
refused to settle for anything less than a Westminster Model constitution
(Kumarasingham 2015).
Understood in this way, a written constitution has value, not as the expres-
sion of the will of a sovereign people, or of a sovereign constituent assembly,
but as the expression of an accepted tradition, faithfully distilled into its
essential components and carefully applied to a particular geographical and
sociocultural context. Constitutional entrenchment and amendment rules
therefore serve to protect that settlement, preventing the government of the
day and its parliamentary majority from destabilizing, eroding, undermining,
or otherwise doing irrevocable damage to that instantiation of the constitu-
tional tradition.
The adjustment of a “universal” tradition to a specific geographical and
sociocultural context is where the polycentrism comes in. Many Westminster
Model constitutions were adopted in diverse, “deeply divided” societies
(Lerner 2011). The British archetype was founded on a basically homog-
enous population, divided by class, socioeconomic interests, and ideology.
It was assumed that elections would be won or lost by the ability of parties
to appeal to centrist “floating voters,” mostly of the lower middle class, in
key marginal constituencies (Jennings 1967). These people would be open to
persuasion, based on the policy and performance of the government and the
credibility of the opposition, and they would keep government both honest,
and within the broad center-ground of politics. Those conditions did not apply
in many former colonies, where voting is determined by “ascriptive” charac-
teristics like ethnicity, religion, and tribe, and where elections are essentially
“censuses” of different communities (Jennings 1956). In such contexts, vot-
ers—bound in practice to vote for the leaders of their own community—have
few viable alternatives. At the extreme, such ascriptive voting means that the
Westminster Model’s logic of government versus opposition breaks down.
Governments are not held accountable for their policies or performance. The
leaders of the demographic majority rule in perpetuity, while the demographic
minority is permanently excluded from power.
Both (a) constitution-making processes, and (b) constitutional designs
emerging from those processes, had to account for this diversity. The pre-
dominant mode of constitution-building in Westminster tradition is not a
single, sovereign “Constituent Assembly,” exercising constituent power as
a unitary actor. Such assemblies did exist—India’s Constituent Assembly in
1947–1950, and South Africa’s Constitutional Assembly of 1994–1996—are
two of the most famous examples (Bulmer 2020b). Elsewhere, however, the

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usual tool was a constitutional conference—in which the constitution would

be negotiated, as a compromise, settlement, or pact, between different actors.
This was the case in the big federal dominions. In Canada, the Constitution
Act, 1867, was the result of negotiations between delegates from the leg-
islatures of the various provinces—meeting at the Quebec Conference in
October 1864 (McNaught 1983, 126). It was also the case in Australia, where
two national conventions—in 1891 and 1897–98—were held, both bring-
ing together delegates from the state legislatures, to negotiate what was to
become the Australian constitution; furthermore, the Australian constitution
was put to the vote not as a single, nationwide act of sovereign constituent
power, but as the individual act of the several constituent states (Saunders
2011). The Union of South Africa (1910–1963) was not federal, but its con-
stitution was—again, in what was becoming the standard British-imperial
tradition—developed by a national convention consisting of delegates from
the legislatures of the two self-governing British colonies (Cape Colony and
Natal) and the two former Boer Republics (Transvaal and Orange Free State)
(Lacour-Gayet 1977, 238). Having been agreed upon at the national conven-
tion, the constitution was then approved by the legislatures of the constituent
units—except in Natal, where a referendum was held (Lacour-Gayet 1977,
241). In all these cases, there was no one center of constituent power. The
conference or convention was not a sovereign constituent assembly. It was
merely a meeting place, and a negotiating forum, in which multiple centers of
power—the individual provinces, states, or colonies—could be represented
and come together to make proposals. Of course, it might be argued that the
Imperial Parliament in London was the true constituent power, but its role in
all these examples was minimal, being confined primarily to giving sanction
and effect to the agreements made in the convention or conference.
Conferences served as the principal practical tool of constitution-making in
the era of decolonization following the Second World War. In the Caribbean,
Africa, the South Pacific, and elsewhere, the usual method of proceeding
was, following the election of a pro-independence majority in the colonial
legislature, to convene a conference, in which British Colonial Office offi-
cials would sit with representatives of the government and opposition in the
colony, and sometimes with other relevant groups. While the Westminster
Model template set the outline of these constitutions, their specific content
was negotiated between these interests. There was often a desire, on the
part of the Colonial Office officials, to reach a cross-party consensus on con-
stitutional issues. In particular, there was a concern to include minority voices
who might have been outvoted in a purely majoritarian constitution-building
process (Bulmer 2020b; Jennings 1956; Kumarasingham 2014).
A crucial aspect of these negotiations was to recognize that people are not
fungible. They exist as parts of groups and communities, and those groups

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and communities have to be accommodated, collectively, in the constitutional

process and in the resulting constitutional design choices. The constitutions
that emerged were not obsessed with the notion of popular sovereignty, as if
the People was one, indivisible, unified mass, with a united constituent will.
Rather, they reflected the nature of a pact—often a messy one; sometimes
a more or less fair one—between these different groups and communities,
and between the political parties that represented their interests. Tribalism,
as such, was rarely directly acknowledged, but in diverse countries such as
Kenya, Nigeria, and Fiji, complex constitutional structures were agreed upon,
in order to accommodate these groups and communities that formed multiple
and distinct, pre-constitutional, centers of identity, belonging, and politi-
cal mobilization. To stay, for the moment, with these three random, but not
atypical examples, these constitutions were not so much acts of the Kenyan,
Nigerian, or Fijian People, but they were acts of their peoples: as Kikuyu or
Lua; as Igbo, Yoruba, or Hausa; as iTaukei or Indo-Fijians. They were not so
much the act of a sovereign constituent power, but an act of constitutional
settlement, arrived at by negotiating terms within a shared—if colonially
imported—institutional tradition.
The resulting Westminster Model constitutions, by the peak of British
decolonization in the 1960s, had a number of common features. These were
identified by S. A. de Smith (1964):

• First, as noted above, they were written constitutions, having supreme

law status, and they were capable of being amended only by a special
procedure. Often there were two or more levels of entrenchment, with
some parts of the constitution being more difficult to change than others.
Thus, for example, some parts of the Indian constitution can be amended
by a super-majority vote in Parliament, whereas other parts require the
approval of a majority of the State legislatures (Kashap 2001).
• Second, they included judicially enforced bills of rights, protecting cer-
tain fundamental civil, legal, and political rights (Parkinson 2007).
• Third, they often—although not always—gave formal recognition to
the office of the leader of the opposition, who was given constitutional
functions and privileges, including a right to be consulted in making
certain appointments to the judiciary or independent commissions, or
even occasionally a veto power over such appointments (Bulmer 2021).
• Fourth, electoral systems were designed to ensure that minorities,
as far as possible, would not be permanently excluded. Continental
European–style proportional representation was rare, but other forms of
inclusive representation were experimented with, including the reserva-
tion of seats for scheduled castes and tribes in India (Kashap 2001) and

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provision for nominated members who would virtually represent ethnic

or other demographic minorities.
• Fifth, second chambers were established with minority-protecting veto
powers. In the 1970 constitution of Fiji, for example, the balance of
power in the Senate was held by members of the Great Council of
Chiefs, who represented the indigenous ”Taukei people, while in the
1960 constitution of Nigeria, each ethnic region had an equal number of
seats in the Senate (Odumosu 1963).
• Sixth, these constitutions typically established what de Smith called
“neutral zones” (de Smith 1964), what today we would probably call
“fourth branch” institutions (Bulmer 2019; Tushnet 2021). These are
intended to protect sensitive areas of public administration—the delimi-
tation of electoral districts, the civil service and the police, the auditing
of public accounts, etc.—from political control.
• Seventh, very often, although not always, they established federal sys-
tems, or at least some constitutional division of power between national
and sub-national authorities. De Smith (1964) argued there was a British
instinct for federalism—an instinct that was not shared by the monocen-
tric French forms of constitutionalism adopted in Francophone Africa.
• Eighth, they recognized customary law, religious law, and traditional
leadership. British colonial governments often relied upon such institu-
tions as mechanisms of justice, law enforcement, peacekeeping, and
local administration. In many cases, these institutions were then carried
over into the post-colonial constitutions at the time of independence.
• Finally, the conventional “unwritten rules” of parliamentary democracy
were translated into formal, legally enforceable, constitutional rules,
defining and clarifying the relationships between the head of state, the
prime minister, the cabinet, Parliament, the courts, and other governing
institutions.

The resulting constitutions were often long, detailed, specific, and full of
all sorts of particular privileges and exceptions. Within this tradition, the
constitution not only sought to establish liberty—in the sense of democratic
self-government in an open, free society—but also certain specific liber-
ties: individual rights, communal rights, language rights, and territorial rights.
A typical mid-twentieth-century Westminster Model constitution defends the
boundaries, both physical and jurisdictional, between diverse authorities, in
and for diverse communities, that enjoy significant constitutional autonomy
while nevertheless being bound into a whole. This constitutional tradition
might recognize a common good—at least a common stake in, and commit-
ment to, “peace, order and good government”—but not necessarily a “general
will,” given the diversity of the societies being constituted.

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Canada’s constitutional system is notoriously complex, but it has been

praised by Canadian scholars for its ability to bring peace and unity to a
diverse society without crushing that diversity (Choudhry 2007; Kymlicka
1998). Its constitution is partially codified, with the Constitution Acts 1867 to
1982 at its core, but with considerable reliance on unwritten conventions,
received from the British, to give muscle and sinew to that rather bare con-
stitutional skeleton (Van Loon and Whittington 1971). Canada is a federation
of ten provinces, with three self-governing territories. Its national existence is
also predicated upon a more fundamental pact between two founding commu-
nities: English-speaking and French-speaking Canadians. These two linguis-
tic communities are territorially concentrated, with Francophones dominant
in Quebec and Anglophones dominant in the rest of Canada. However, the
territorial concentration is not seamless: there are minorities of English
speakers in Quebec, and French speakers outside Quebec.4
In addition to territorial federalism, which is necessary in order to meet
demands for provincial autonomy in a vast country, the Canadian constitution
has also had to grant non-territorial autonomy, rights, and recognition for the
linguistic communities. It guarantees the equal status of English and French
as the official languages of Canada (Constitution Act 1982, 16 [1]), and it
provides for equal bilingualism in the proceedings of Parliament (17 [1]),
parliamentary statutes and records (18 [1]), in federal court proceedings (19
[1]), and in communications between the public and federal institutions (20
[1]). Moreover, citizens of Canada whose first language is English, but who
live in Quebec, have the right to primary and secondary education in English,
while those whose first language is French, but who live outside of Quebec,
have the right to primary and secondary education in French (23 [1]). This
communal autonomy in matters of education extends not only to language
communities, but also to religious communities; under Section 93 of the
Constitution Act 1967, there are separate Roman Catholic and secular school
boards within the Francophone and Anglophone systems.
A persistent demand of the Francophone community has been to be recog-
nized as a “distinct society,” a nation-within-a-nation. This would give formal
endorsement to the idea that Canada is not only a federation of provinces, but
also a union of distinct, linguistically defined peoples. The Quebec nation-
alist scholar Guy LaForest has suggested that Canada’s “‘political system
does not measure up to our country’s reputation abroad’ because it fails to
acknowledge, both symbolically and institutionally, Quebec’s distinctive-
ness” (Choudhry 2007, quoting LaForest). Attempts to meet this demand
through further constitutional change—proposals for which were outlined in
the Meech Lake Accord of 1987 and the Charlottetown Accord of 1992—
came to naught. Quebec’s independence, which had been roundly defeated
in a referendum in 1980, remained on the agenda, and only narrowly failed

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 214 W. Elliot Bulmer

a second time in 1995. The collapse of the Meech Lake and Charlottetown
Accords, and the defeat of the Quebec sovereigntist movement, have pro-
duced a kind of constitutional stalemate in Canada, where nobody was very
happy with existing arrangements, but no serious politician would risk politi-
cal capital by reopening a moribund debate (Russel 2004). Nevertheless, even
this stalemate shows the inherent polycentrism in Canadian constitutional-
ism: there is no sovereign, constituent Canadian national will; constitutional
settlements have to be agreed upon, not decreed.
Canadian polycentrism goes so far as to recognize that the constitutional
compact at the heart of the federation, between Quebec and the other prov-
inces, is ultimately dependent upon consent. In the Secession Reference, the
Supreme Court of Canada recognized that while Quebec cannot unilater-
ally secede, Canada would have to enter into good-faith negotiations with
Quebec to allow independence if there was a clear majority for indepen-
dence in Quebec (Reference Re: Secession of Quebec [1998] 2 SCR 217).
As the Supreme Court did not specify what would be a “clear majority,” the
Parliament of Canada then passed the Clarity Act 2000, which would give
the Parliament of Canada the power to ensure that any referendum held on
Quebec independence would be unambiguous and that the outcome of a vote
reflected a clear expression of the majority will. This was rejected in Quebec,
which passed its own Act in response (CQLR c E-20.2). Despite this stand-
off on how a “clear will of the majority” of the people of Quebec was to be
expressed, polycentrism is evident in the principle, accepted by both sides,
that the latter has a peaceful, democratic path to independence if so desired.
Malaysia is a federation of thirteen states and three territories. Society is
divided on ethno-linguistic and religious grounds, between an indigenous
Muslim Malay population and minorities of Indian and Chinese Malaysians.
Within Malaya-proper, the federal system built upon independence in
1957 was founded upon nine monarchical states, which have retained their
hereditary rulers in a constitutional capacity. The federal system is relatively
centralized, with the central government having relatively more, and the
states relatively less, power (Harding 2012). Malaysian federalism does not,
however, treat all states equally. There is a division between the (now eleven)
states of Western Malaysia, and the two states of Eastern Malaysia: Sabah
and Sarawak. The latter are culturally, as well as geographically, distinct
from the rest of Malaysia. They joined the federation later, in 1963, in a
negotiated process that guaranteed to them certain special terms as stipu-
lated in the Malaysia Agreement. Singapore also joined at the same time,
but it became independent in 1965. Under the constitution of Malaysia, the
state legislatures of Sabah and Sarawak have greater legislative powers, not
available to the Western Malay states, in relation to native law and custom;
incorporation of public bodies, ports, and harbors; and personal laws relating

&3DJH 6WDJH'UDIW
 The Constitution of Liberties 215

to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family

law, railways (Sabah only), charitable trusts, and immigration (Constitution
of Malaysia S.95). Sabah and Sarawak also have exemptions from federal
laws in relation to land use, local government, and development (Constitution
of Malaysia S.95D-95E). They enjoy additional financial authority, includ-
ing borrowing powers and special grants from the federal government
(Constitution of Malaysia S.112B and S.112C). Moreover, under S.161E, no
constitutional amendment may be made that affects the special privileges of
Sabah or Sarawak without the consent of those states. In other words, the con-
stituent power is descended not from one monocentric sovereign people, but
from a pact—arising in the Malaysia Agreement of 1963 and still recognized
by the constitution today—between multiple centres of authority.
A similar polycentricity—or perhaps, in this case, it should be “bicen-
tricity”—is found in the constitution of Saint Kitts and Nevis. This pair of
Caribbean islands became independent in 1982 under a constitution that
created a kind of lopsided federation. Nevis, the smaller of the two islands,
has its own legislature—the Nevis Island Assembly—with powers over a list
of twenty-three specified matters from agriculture to sport (Constitution of
Saint Kitts and Nevis, Schedule 5, Part 1). There is, however, no separate
legislature for Saint Kitts, the “federal” Parliament of Saint Kitts and Nevis
having direct rule over Saint Kitts in all respects. At independence, the Nevis
representatives to the constitutional conference were able to secure not only
this measure of autonomy, but also a right to secession (Corbett and Byron
2023). This right is defined by Section 113 of the constitution, which enables
Nevis to secede by means of a two-thirds majority vote in the Nevis Island
Assembly, followed by a two-thirds majority vote in a referendum of Nevis
Island voters. This provision was put to use in 1998, when a referendum was
held that fell quite narrowly short (61 percent) of the two-thirds majority
threshold (Corbett and Byron 2023).
The constitution of Saint Kitts and Nevis, insofar as it concerns the
autonomy or secession rights of Nevis, can be amended only by means of a
referendum that must be passed by a double super-majority: by a two-thirds
majority of votes on Saint Kitts, and a two-thirds majority of votes on Nevis
(Constitution of Saint Kitts and Nevis S.38). Thus, constitutional polycen-
trism is evident both in the design of constituted institutions (the autonomy
granted to Nevis by the constitution) and in the nature of the constituent
power. There is no monocentric sovereign people exercising constituent
power over the whole of Saint Kitts and Nevis. Rather, there are two cen-
ters—the people of Saint Kitts and the people of Nevis—and constituent
power depends upon negotiations and agreement between them.
A form of non-territorial autonomy was embedded in the 1963 constitution
of Kenya.5 Kenya is a majority Christian country with a Muslim minority,

&3DJH 6WDJH'UDIW
 216 W. Elliot Bulmer

estimated to be about 10 percent of the total population, concentrated mainly,

but not only, in the coastal city of Mobassa. Section 179 of the 1963 consti-
tution enabled the appointment of a chief Kadhi and other Kadhis—judges
of Islamic law—and it also provided that the Kahdi courts would have juris-
diction over “questions of Muslim law relating to personal status, marriage,
divorce or inheritance in proceedings in which all the parties profess the
Muslim religion.” Thus, constitutional polycentrism existed to the extent that
two sources of law—one coming from Parliament and English common law,
the other coming from Islamic jurisprudence—each representing different
values and oriented according to different principles, could, within limits,
co-exist in one polity. The citizens of that polity were not, therefore, all equal
before the law, in the way that the French republican tradition demands. Their
rights, in matters such as marriage, divorce, and inheritance, would depend
upon their religion. Beyond this judicial role, the chief Kadhi has become a
semi-official spokesperson for Muslims in Kenya, both leading the scholars
of the community in the development of Muslim jurisprudence in the country,
and being asked to address social problems affecting the Muslim community,
from high divorce rates, to mentoring youth and rehabilitating drug addicts
(Hassan 2023).
The final example of constitutional polycentricity to be discussed is that of
Maori rights in New Zealand. New Zealand was not conquered. Sovereignty
over New Zealand was ceded to the Crown by the Treaty of Waitangi (1840).
It therefore arises by the consent, and is subject to the consent, of the Maori
community. The actual terms of the Treaty of Waitangi are rather specific,
mostly concerning the recognition of land titles. However, the courts have
taken a broader view of the “Principles of Waitangi,” including a duty of
the Crown to act in good faith toward the Maori community (New Zealand
Maori Council v. Attorney-General [1987] [1 NZLR 641]). Since the Maori
Representation Act 1867, which was enacted, partly at least, “as a recogni-
tion of the colonists’ constitutional obligations under the Treaty of Waitangi,”
the Maori population has had guaranteed seats in Parliament (Parliament of
New Zealand 2003). Under the current law, there are seven Maori elector-
ates, in which only Maori electors can vote (Electoral Act, New Zealand,
1993 S.45). Maori electors are not required to vote in a Maori electorate, and
they can choose to vote on the common roll instead. Even so, this separate
representation ensures there is always not only a numerically reflective Maori
presence in Parliament, but also a bloc of Maori members of Parlaiment who
are responsible to Maori voters. In other words, the design of Parliament
and of the electoral system recognizes the coexistence of a community (the
Maori) within a community (the nation of New Zealand), which, because
of its indigenous status and its treaty rights, has a special, distinct claim to
political voice.

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 The Constitution of Liberties 217

CONCLUSION

This chapter has demonstrated several examples of how Westminster Model

constitutions have embraced various forms of constitutional polycentricity
as a way of recognizing diversity and protecting the autonomy of distinct
groups, whether they are territorial or non-territorial. It shows that the real
world of constitution-building does not always fit into the monocentric
Sieyes-Rousseau model of sovereign constituent power. A Westminster
Model “constitution of liberties” often depends upon negotiations between
groups and communities, each having their own identities, and their own
sources of power and legitimacy. These groups can pursue their own agendas
and protect their own interests, while still being part of a larger polity. The
common good is not denied, but it cannot be universally discerned or applied
by one unitary sovereign body; it has to be discerned in negotiations between
multiple centers of power.
Before finishing, however, two further caveats are needed. The first is that,
for the avoidance of doubt, no claims are here being made for the pre-political,
or natural, character of the rights protected by the polycentric “constitution of
liberties.” Rather, they are understood as “liberties” simply because they are
constitutionally recognized as legally enforceable in a particular polity. They
may be derived from natural law, from historical inheritance, or from other
sources, but they are protected in fact because they were accepted within the
constitutional bargain and therefore form part of the constitutional order the
courts will recognize and by which legitimate political actors consider them-
selves bound. I do not discount the existence of natural rights, nor do I take a
stand in favor of legal positivism; I am simply focusing, for the purposes of
this argument, on the fact that these rights, having been accepted by partici-
pants in the constitution-building process, are constitutionally recognized and
enforced. Moreover, the object of these liberties is not necessarily limited to
individuals, but it can extend to groups, communities, or territories. Likewise,
these rights are not merely negative (non-interference) rights, but they can
include the positive right to carry out autonomous collective public action.
The second caveat is that the terms set out in this chapter must be under-
stood non-exclusively, as ideal archetypes rather than as a binary scheme
of constitutional classification. Every real-world constitution includes some
concept of sovereignty and some protection for liberties. The division
between the polycentric Westminster Model “constitution of liberties” on one
side, and the monocentric French republican “constitution of sovereignty”
on the other, is broad, messy, and overlapping. Ireland, for example, has an
unmistakably Westminster Model constitution, deeply shaped in its principles
and operations by the experience of British rule, into which Irish elites—like

&3DJH 6WDJH'UDIW
 218 W. Elliot Bulmer

it or not—had been politically socialized (Keogh and McCarthy 2007), yet

its constitution is built upon a principle of unitary national sovereignty that
owes more to the French republican tradition, and that is reflected in its uni-
tary, majoritarian, popular sovereigntist constitutional amendment procedure,
for which a simple majority in a national referendum suffices. Conversely,
some continental European countries, which historically have been subject to
French (although not necessarily French republican) rather than British influ-
ences, embrace the polycentric constitution of liberties to a highly advanced
degree. Belgium, with its complex system of double federalism and exten-
sive cultural autonomy for linguistic communities, is the obvious example
(Poplier and Lemmens 2015). So the claims being made for the Westminster
Model, in contrast to the French republican model, are neither universal nor
exclusive.
The conclusion is altogether more modest than that: if you want to find
polycentric constitutions in action, to show that polycentrism is a viable,
pragmatic, constitutional option and not merely a theoretical idea, then
Westminster Model constitutions are not a bad place to start looking. This is
relevant not only to polycentric theorists looking for a practical basis for their
ideas, but also to constitutional scholars seeking to understand constitutional
choices and how they interact with constitutional traditions. In contrast to
the classical mode of the French republican “constitution of sovereignty,”
grounded upon a monocentric constituent power, a Westminster Model
“constitution of liberties” presents constitutionalism in the gothic mode. This
is reflected even in their architecture—whether Parliament sits in a space
designed to look like an ancient Greek theater, or like the choir stalls of a
medieval abbey.6

NOTES

1. Dr. W. Elliot Bulmer is writing this chapter in an independent, personal capacity.

The views herein expressed are the author’s own, and not those of the International
Institute for Democracy and Electoral Assistance or any other organization with
which he may be affiliated.
2. An interesting example of “vocational” autonomy can be found, historically, in
the Stannery Parliaments, found in the western counties of England. These bodies,
elected by tin miners, had the authority to regulate tin mining and to judge disputes
arising between tin miners. More recently, it can be found in those Acts of Parliament
that give professional associations the right to regulate matters related to the conduct
of their own members.
3. I am here ignoring Rousseau’s other constitutional proposals, such as those
designed for Corsica and Poland, because they represent more of a compromise with
real-world conditions.

&3DJH 6WDJH'UDIW
 The Constitution of Liberties 219

4. A third founding nation—made up of the indigenous and Metis people—is also

now widely acknowledged, and it is recognized in the Constitution Act 1982, but it
played little active role in Canada’s original confederation.
5. The 1963 constitution was quickly undermined, and an authoritarian, one-party
State was constructed. However, its essential principles, as regards Kadhi courts and
Muslim personal law, were also reflected in the Constitution of 2010.
6. A coda in the form of a question, which there is not scope here to answer: Is this
messy, polycentric Westminster Model “constitution of liberties,” which has made a
virtue of the necessity of accepting difference and diversity, the product of an Angli-
can mind, which eschews neat universal theories, and asserts that we do not all have
to agree in order to rub along tolerably well?

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&3DJH 6WDJH'UDIW
 Index

abstraction, Ostrom, V., on, 154–55 Aristotelian pluralism, 42, 58

academic world, social order centralized Aristotelian tradition, Berlin contrasted
by, 7–8 with, 42
action, common. See common action Aristotle, 26, 44, 59n8; Aquinas
administration, public, 3, 144 contrasted with, 49–50; on common
administrative layers, within the good, 10; on democracy, 115;
State, 93 Nicomachean Ethics by, 43
administrators, synoptic facts relied on Arizona, 142
by, 91–92 armies, mercenary, 179–80
adoption, in Australia, 129n2 assimilation, polycentric democracy
Ahmed, Ali T., 96, 107n6 avoiding, 126
aid agencies, 143 association, freedom of, 22
Alchian, Armen A., 143, 148 associations: human flourishing guided
Aligica, Paul, 69, 75–78, 88, 122, by, 28; intermediate, 117, 119, 128;
157–58 mutual protective, 173; plurality
anarchism, 183 of, 31–32; regulation of, 34–35;
Anarchy, State, and Utopia (Nozick), sovereign rule disadvantaging, 31;
73, 80n2 uniformity displacing, 119, 128
ancient Rome, Han China compared Australia, adoption in, 129n2
with, 98 Australian constitution, 210
Applebaum, Anne, 116 authority, control of, 34–35
aquifers, 141 autonomy: hierarchy in tension with, 54;
Aquinas, Thomas, 49–50 local civic, 99, 101–2; non-territorial,
architectonic common good, 41–44 215–16; vocational, 218n1. See also
architectonic order, 50–51, 55 choice
architectonic pluralism, 42–45, 56, aviation industry, 124
58–59
architectonic politics, public good as Bagehot, Walter, 207
incompatible with, 51 Balazs, Éteinne, 103

223

LQGH[3DJH 6WDJH'UDIW
 224 Index

Barden, Garrett, 29 choice: democratic, 99, 107n9; human

Barrett, Jacob, 70 flourishing through, 25; liberal
basic validity rule, 78 principles determined by, 52;
Beinhocker, Eric, 90 rationally informed, 36n5
Belgium, 166 Christiano, Tom, 145–46
Benda, Václav, 182 citizenry, homogeneity socialized into,
Berlin, Isaiah, 36n3, 42 116–17
“Beyond Markets and States” (Ostrom, citizens, single-sovereign solutions
E.), 139–40 believed by, 157
bilingualism, in Quebec, 213 citizens-customers, the State competing
bills of rights, 194, 198n8, 211 for, 167–68
Bish, Robert, 157, 158 civil society, the law created by, 191
blockchain technology, 180–81 Clarity Act (Canada), Quebec
Blomquist, William A., 6, 13n2 rejecting, 214
Bloomington school. See Ostromian closed society, 130n12
school of political economy the cloud, states migrating to, 181–82
body politic, 48–49 coercion, 63, 65
bottom-up challenge, of state collective entities, described as
administration, 91–92 individual, 154–55
bottom-up delegation, 34–35 Colonial Office, British, 210
Brennan, Geoffrey, 76 common action: common good as, 47;
Brexit vote, 130n8 feasibility of, 55; limits of, 57
British Colonial Office, 210 common good: all-encompassing,
Buchanan, James, 11, 76, 145; The 46–48, 50–51; architectonic, 41–44;
Calculus of Consent by, 81; Aristotle on, 10; as common action,
contract theory by, 80n1; on social 47; community defining, 48–49;
scientists, 155 human flourishing and, 50; human
bureaucracy, individuality contrasted good contrasted with, 49–50;
with, 129n5 political, 49, 51; the State not
realizing, 48; Utz defining, 59n2
Cahill, Maria, 37n17 common good pluralism, 41–42
The Calculus of Consent (Buchanan), 81 common projects, public scrutiny of, 56
California, 142, 156 the commons, 137–39, 145, 148, 150
Canada: Constitution Act in, 210, 213, Communist Czechoslovak regime, 172
219n4; constitutional system in, 213; Communist Party of China, 130n13
Supreme Court of, 214 community, common good defined by,
Catholics, Roman, 46, 57 48–49
central government, Han China ruled community, political. See political
by, 100 community
centralized moralism, 52 competence, lack of, 146
Charlottetown Accord, 213–14 competition: horizontal, 89, 94–95;
Charter 77 signatories, 172 immigration increasing, 170–71;
China, Communist Party of, 130n13 information generated through,
China, Han. See Han China 94–95; inter-societal, 96; Tiebout, 99,
107n9; vertical, 89, 94–95

LQGH[3DJH 6WDJH'UDIW
 Index 225

complexity, 90–91, 141–42; Nevis, 215; Westminster Model,

decentralization driving, 105–6; of 206–7, 211–12, 217
human flourishing, 26–27; of human constitutive approach, by Gaus, 72, 73
good, 27; institutional, 21–23, 31–32; consumer mobility, monopolies
simple model of governing, 95–98, contrasted with, 171
97; the State facing, 93; threshold of, contracts: costs and benefits of, 151;
96. See also social complexity Hobbes on, 65; legitimacy of, 74–75;
complexity problem, 87 smart, 180–81; social, 165–66, 168
complex society: definition of, Du Contract Social (Rousseau), 205
21; human flourishing in, 19; contract theories, 80nn1–2, 81n3
information challenging, 92 contractualism: diversity and, 67–68;
computers, 178–79 justice identified by, 64, 79;
Comte, Auguste, 8 polycentric constitution and, 75–79;
confederal political systems, 4–5 polycentrism and, 68–71
conferences, constitutions created contractual models, 75, 78
at, 210 control, direct. See direct control
Constituent Assembly, in India, 209 cooperation, ethics of, 31–32
constituent assembly, Westminster co-production, 143, 158n2
Model contrasted with, 209–10 cosmopolitanism, 183
constituent power, 205–6, 208 Crassus, Marcus Licinius, 107n13
Constitution Act, in Canada, 210, 213, “crowding out citizenship,” 145, 150
219n4 cryptocurrencies, 180
Constitutional Assembly, in South Czechoslovak regime, Communist, 172
Africa, 209
constitutional identity, 191 Dahl, Robert, 11, 107n9, 145
constitutionalism, polycentric, 202–4 Daniel (prophet), 194–95
constitutional models, polycentric decentralization: complexity driving,
framework achieved through, 12–13 105–6; polycentricity differentiated
constitutional order, public justification from, 100; as risk management
of, 79 strategy, 128; Roman Empire
constitutional polycentricity, 203–5, 216 impacted by, 100–101; trade-offs to,
constitutional states, polycentrism 146–47
and, 201 decentralized society, Kukathas
constitutional system, in Canada, 213 conceptualizing, 73–74
Constitution Making in Arcady Declaration of the Rights of Man and
(Jennings), 208 Citizen (France), 198n8
constitution of liberties, 205, 217, 219n6 decolonization, Second World War
constitution of sovereignty, 205, 217 followed by, 210
constitutions: Australian, 210; deep disagreement: liberal-democratic
conferences creating, 210; of Fiji, state impacted by, 122; nested
212; French republican tradition resilience responding to, 125; Rawls
influencing, 206; of Kenya, 215–16; stressing, 121
modern democratic, 203; polycentric, De Koninck, Charles, 59n5
75–79, 217–18; of Saint Kitts and deliberative democracy, 127

LQGH[3DJH 6WDJH'UDIW
 226 Index

democracy, 129n6, 147, 218n1; British, England, Stannery Parliaments of,

208; deliberative, 127; illiberal, 218n2
116; monopolies decreased through, the Enlightenment, 19
170–71; panarchy contrasted with, e-residents, 179
168; parliamentary, 13, 208, 212; Estonia, 179, 181
polycentric, 122–26; property- ethics, of cooperation, 31–32
owning, 127. See also liberal EU. See European Union
democracies European Court of Human Rights,
Democracy in America (Tocqueville), 198n6
129n6 European Union (EU), 57, 88, 120
democratic choice, 99, 107n9 exit: monopolies versus, 170–72;
democratic constitutions, modern, 203 panarchy facilitating, 172;
democratic societies, Ostrom, V., sovereignty limiting, 177–78; voice
on, 145 dichotomy and, 171
Demsetz, Harold, 143, 148 Exit, Voice, and Loyalty
Dependent Rational Animals (Hirschman), 171
(MacIntyre), 26
DePuydt, Emil DePuydt, 12 Facebook (social media network), 180
de Smith, S. A., 206, 208, 211 fairness, 142–43, 150
Dewey, John, 154 fair trial, right to, 194–95
Dicey, A. V., 207 fascism, in Italy, 116
direct control: polycentrism contrasted federalism: de Smith on, 212; Elazar
with, 93–94, 96–97; social defining, 204–5; territorial, 213
complexity and, 91–93; the State federal political systems, 4–5
relying on, 88–90 federal system, 212, 214–15
disagreement, deep. See deep Ferrajoli, L., 198n5, 198n7
disagreement Fiji, constitution of, 212
distribution, questions of, 45 Finnis, John, 51, 197n3
diversity, 213; contractualism and, firm model, of public
67–68; contractual models administration, 144
challenged by, 75; human flourishing force, coercion distinguished from, 63
requiring, 29–30; polycentric orders forest management, Ostrom, E.,
accommodating, 69–70; in well- studying, 142
ordered society, 73; Westminster formal desiderata, of Rule of Law,
Model and, 209. See also complexity 192–93, 196
formal-procedural rationality
e-citizenship, 179 (Zweckrationalität), 119
Economist (publication), 176 formal rules, team production focusing
economy, government contrasted on, 148
with, 155 fragmentation, 131n18, 153
Ehrenberg, Kenneth M., 78 freedom, value of, 24
Elazar, Daniel, 3, 204–5 freedom of association, Galston
electoral systems, 130n7, 211–12 defending, 22
El Salvador, 181 freedom to flourish, 9, 21, 23–25, 32
emergent properties, 123–24 free-riding problem, 148, 158n1

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 Index 227

French republican tradition, 201–4, 206, Habermas, J., 127

208, 217–18 Han China: ancient Rome compared
French Revolution, 201 with, 98; central government ruling,
Friedman, David, 173–74 100; markets in, 102; monopolies by,
functional properties, of polycentric 103–4; urban sites in, 101
systems, 87 Hardin, Garrett, 139
Fundación Ciudadanía y Valores harnessing strategy, insulation strategy
Proeduca Summa S.L, 36n1 contrasted with, 71
Hart, H. L. A., 78
Galston, William, 22 Hayek, F. A., 6, 89
Garrick, Dustin E., 6, 13n2 health insurance, 138
Gaus, Gerald, 3, 7, 68, 75; constitutive Hellenistic world, mobility in, 99
approach by, 72, 73; The Open Herzl, Theodore, 181, 184
Society and Its Complexities by, 76; heterogeneous values, political economy
on self-governance, 147 and polycentricity and, 152
Gauthier, David, 80n1 hierarchical organization, polycentricity
genocide, 176 contrasted with, 153–54
globalization, 178, 190 hierarchy, autonomy in tension with, 54
global law, human rights and, 189 Hirschman, Albert O., 107n9, 171
good life, public order embodying, 55 Hittinger, Russell, 57
governance, 139–40; government Hobbes, Thomas, 19–20, 65
contrasted with, 129n3; limited scale the Holocaust, 176
of units of, 34; lower-level, 58–59; homogeniety, citizenry socialized into,
multiple scales of, 124; under social 116–17
complexity, 34; water, 140–45. See horizontal competition, vertical
also self-governance contrasted with, 89, 94–95
Governing Complexity (Thiel, human flourishing, 36n4; associations
Blomquist, and Garrick), 6, 13n2 guiding, 28; through choice, 25;
government: central, 100; economy common good and, 50; complexity
contrasted with, 155; Estonia of, 26–27; in complex society,
digitalizing, 179; governance 19; diversity required for, 29–30;
contrasted with, 129n3; majoritarian, embodied, developmental, and
206; paradox of, 148, 150; social character of, 26; normative
polycentrism as overlapping, 169; order guiding, 28; through rational
size of modern, 45; sovereignty deliberation, 25; social complexity
distinguished from, 205–6. See also increasing, 23–24; universal
politics requirements for, 27–28
government centers, as overlapping on human good, 36n10; common good
different scales, 169 contrasted with, 49–50; complexity
government control, privatization of, 27; as socially embedded, 26
contrasted with, 139 human rights: European Court of,
government effectiveness, social 198n6; global law and, 189;
complexity contrasted with, 95–96 international law on, 195–96
grundnorm, Kelsen on, 78 Hungary, Iron Curtain brought down
by, 172

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 228 Index

ideal theory, realism rejecting, 80 67; political authority justified by,

Ignatieff, Michael, 45 63–64; polycentric governance as
illiberal democracy, 116 compatible with, 77; polycentricity
immigration: competition increased by, of, 10; public justification needed
170–71; self-determination and, 177; for, 67–68, 74; rules and, 76; social
world economy impacted by, 175–76 cooperation structured by, 63; the
India, Constituent Assembly in, 209 sovereign and, 66
individuality, bureaucracy contrasted justice-aiming theories, 72
with, 129n5 justification, public. See public
informal norms, importance of, 148–52 justification
information: competition generating,
94–95; complex society challenged Kadhi courts, Islamic law judged by,
by, 92; social complexity 216, 219n5
increasing, 94 Kelsen, Hans, 78
institutions, rules for, 78 Kenya, constitution of, 215–16
insulation strategy, 67, 68, 71, 72, 74–75 Kogelmann, Brian, 72, 73, 81n3
inter-group dealings, voluntarism in, 33 Kukathas, Chandran, 3, 37n16, 73–74
International Convention of Civil and Kymlicka, Will, 22
Political Rights, 194
International Institute for Democracy LaForest, Guy, 213
and Electoral Assistance, 218n1 the law: civil society creating, 191;
internationalism, 7–8, 183 intelligibility of, 193–96; legal space
international law, on human rights, challenging, 193–96; public action
195–96 founded in, 193; reach of, 45; Rule
the internet, states benefiting from, of Law conformed to by, 193–94
178–79 laws, costs and benefits of, 151, 152
investment, foreign direct, 177 The Laws (Plato), 175
invisible hand, tragedies of the Leeson, Peter T., 151–52
commons refuting, 137–38 legality: formal requirement of, 197n4;
Ireland, 217–18 intelligibility of, 192–93; legal
Iron Curtain, Hungary bringing monopoly contrasted with, 188–89;
down, 172 truth and, 198n7
irrigation systems, 142–44 legal monopoly, 188–90
Islamic law, Kadhi courts judging, 216, legal pluralism, 12, 188, 195
219n5 legal practices: legal pluralism
Israel, 207 impacting, 12; legitimacy of, 190–
Italy, fascism in, 116 92; states not monopolizing, 187–88
legal space: the law challenged by,
Jacobs, Jane, 23 193–96; legal pluralism featured by,
James (king), 2 195; legal system contrasted with,
Jennings, Ivor, 208 188–90; Viola observing, 189–90
jurisdiction, 173–75 legal system, legal space contrasted
justice: contractualism identifying, 64, with, 188–90
79; justification and, 65–66; Locke legislation, hegemonic, 117
on, 65–66; as normative authority,

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 Index 229

legislative power, constituent power mercenary armies, 179–80

contrasted with, 208 meta-utopia model, by Nozick, 73
legitimacy, bottom-up standard for, migrants, welfare system and, 176–77
190–92, 196–97 military, of Roman Empire, 104
Leo XII (pope), 46 Mill, John Stuart, 36n8
Leviathan (Hobbes), 19–20 Mobassa (Kenya), 216
liberal democracies, 120; social mobility, in Hellenistic world, 99
pluralism and, 8; stability problem Moehler, Michael, 67
in, 116; state capacity and, 147; monarchical absolutism, 2
threats to, 6; twilight of, 115–17 monocentric governance, polycentric
liberal-democratic states, 122, 127–28 governance contrasted with, 2,
liberal principles, choice determined 97, 187
by, 52 monocentric nation-state, 118
libertarian utopia, 127 monocentric regime, with enhanced
liberties, constitution of, 205, 217, deliberation, 131n18
219n6 monocentric states, 1, 18, 118, 122
Lijphart, Arend, 206 monocentrism, 129n1
limited scale of units of governance, 34 monopolies: consumer mobility
local civic autonomy, in Roman Empire, contrasted with, 171; democracy
99, 101–2 decreasing, 170–71; exit versus,
Locke, John, 65–66 170–72; Han China by, 103–4; legal,
The Lord of the Rings (Tolkien), 116 188–90; natural, 172–75; political,
lower-level governance, architectonic 175; during Roman Empire, 103; the
pluralism encouraging, 58–59 State as, 166; territorial, 170, 172
Lucas, Edward, 181 “monopoly of violence,” political
community maintaining, 54
Maathai, Wangari, 194–95 moralism, centralized, 52
MacDonald, Trent, 182, 183 morality, panarchy and, 175–77
Macedo, Stephen, 52 Muldoon, Ryan, 68, 81n3
Machan, Tibor R., 172–73 Müller, Julian, 70, 125–26
MacIntyre, Alasdair, 20, 26, 44, 52–55, Murphy, Tim, 29
57, 59n8
Madison, James, 148 Nash equilibrium, 150, 158n5
Magna Carta, 194 nationalization, 57
majoritarian government, 206 national margin of appreciation, 191
Malaysia, federal system in, 214–15 nation-states: monocentric, 118; post-
Maori Representation Act, 216 Westphalian international political
Maori rights, in New Zealand, 216 system based on, 170; in practice,
Maritain, Jacques, 48 115–16
market failures, 138 Natural Law and Natural Rights
markets, 139; in Han China, 102; (Finnis), 197n3
political free, 183–84; states and, 140 Natur und Kultur (Schlick), 182
McGinnis, Michael D., 6 Neolithic Revolutions, 174
Meech Lake Accord, 213–14 nested arrangements, polycentric
mega-cities, 178 systems generating, 123

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 230 Index

“nestedness,” 123–25, 130n16, 149 democratic societies, 145; public

nested resilience, 123–26 participation concerning, 157
networked states, 181–82 Ostromian school of political economy
Nevis (island), 215 “Bloomington school,” 4, 22, 157
New Zealand, Maori rights in, 216
Nicomachean Ethics (Aristotle), 43 Page, Scott, 90
Nigerian railways, 171–72 Pakaluk, Michael, 52, 56
Nobel Prize, 5 panarchist theory, of state formation, 12
non-rival goods, 141 panarchy, 165, 183–84; democracy
non-territorial states, 165–66 contrasted with, 168; exit facilitated
non-voluntary taxes, 30 by, 172; morality and, 175–77;
Noreña, Carlos, 102–3 polycentricity and, 168–69; social
normative authority, justice as, 67 contracts as base of, 166; sovereign
normative order, 36n11; distinctive, 21; states contrasted with, 166;
diverse, 31–32; human flourishing technological and social prerequisites
guided by, 28 for, 177–83
normative risks, polycentric democracy paradox of being governed, 147
minimizing, 127 paradox of government, 148, 150
norms: costs and benefits of, 151; parliamentary democracy, 13, 208, 212
informal, 148–52; polycentricity of, the people, unity and interchangeability
10; rules contrasted with, 151; social, of, 206
150–51 personal freedom, social complexity
North, Douglass, 170 created by, 22
Nozick, Robert, 127, 172–73; Anarchy, Pettit, Philip, 59n2
State, and Utopia by, 73, 80n2; Philosophy, Politics, and Economy
Kukathas compared with, 73; scholars (PPE scholars), 6–7
meta-utopia model by, 73; thought philosophy, polycentric thinking in, 4–6
experiments supporting, 174 Plato, 175
Nussbaum, Martha, 27 pluralism, 55; architectonic, 42–45,
58–59; architectonic common
objectively valuable human end, 36n6 good as consistent with, 43–44;
Open Society, Hayek conceptualizing, 6 Aristotelian, 42, 58; common good,
The Open Society and Its Complexities 41–42; legal, 12, 188, 195; social, 8;
(Gaus), 76 value, 42
order model, 52–55, 57 Polanyi, M., 122
Ostrom, Elinor, 3–5, 22, 76–77, 119, polarization, 128, 146
122, 150–52; “Beyond Markets and political authority, justice justifying,
States” by, 139–40; on the commons, 63–64
145; forest management studied by, political community: completeness of,
142; on free-riding problem, 148; 45; geographical characteristics lost
on self-governance, 156–57; water by, 180; “monopoly of violence”
management studied by, 156 maintained by, 54
Ostrom, Vincent, 3–4, 22, 122, 139–40, political economy, heterogeneous values
152; on abstraction, 154–55; on and polycentricity and, 152

LQGH[3DJH 6WDJH'UDIW
 Index 231

political fragility, uniformity direct control contrasted with, 93–94,

creating, 122 96–97; government overlapping
political order, legitimacy of, 70 in, 169
political philosophy, the State designed popular sovereignty, 205–6, 208
through, 165 populism, polycentric democracy
political power, procedure legitimizing, solving, 128
63–64 post-Westphalian international political
political stability, as nested resilience, system, nation-states as base of, 170
123–26 power, control of, 34–35
political structure, society choosing, 96 PPE scholars. See Philosophy, Politics,
politics, 41–42; architectonic, 46, 51; and Economy scholars
moral limits to, 51; practice ordered practice, politics ordering, 53–54
by, 53–54 preference for proximity, 33–34, 37n17
polycentric constitution, 75–79 principle of conceptual unanimity, 156
polycentric constitutionalism, 202–4 Prisoners’ Dilemmas, 150
polycentric governance. See specific private freedoms, self-rule contrasted
topics with, 47
polycentricity: constitutional, 203–5, private sector, the State entangled with,
216; decentralization differentiating, 152–53
100; fragmentation contrasted privatization, government control
with, 153; heterogeneous values contrasted with, 139
and political economy and, 152; property-owning democracy, Rawls
hierarchical organization contrasted proposing, 127
with, 153–54; of justice, 10; of property rights, 139
norms, 10; panarchy and, 168–69; proximity, preference for, 33–34, 37n17
social complexity and, 93–95, 105; public action, the law as foundation
social order understood through, 154; for, 193
visibility lacked by, 5 public administration, 3, 144
Polycentricity and Local Public The Public and Its Problems
Economies (McGinnis), 6 (Dewey), 154
Polycentricity in the European Union public good, architectonic politics as
(van Zeben and Bobi ), 6 incompatible with, 51
polycentric systems, 153–54; conditions public justification: of constitutional
for emergence of, 10–11; definition order, 79; contractual models of,
of, 69; emergent properties generated 78; justice needing, 67–68, 74; of
by, 123–24; fragmentation of, polycentric systems, 71, 79
131n18; functional properties of, public order, good life embodied by, 55
87; nested arrangements generated public participation, Ostrom, V.,
by, 123; normative properties of, concerned with, 157
87; public justification of, 71, 79; public reason, 121
of social coordination, 4; special public scrutiny, of common projects, 56
functionality of, 87. See also Puydt, Paul Emil de, 166, 182
Westminster Model
polycentrism: constitutional states and, Quebec (Canada), 213–14
201; contractualism and, 68–71; Quong, Jonathan, 67

LQGH[3DJH 6WDJH'UDIW
 232 Index

railways, Nigerian, 171–72 Sarawak (Malaysia), 214–15

Rao, B. S., 208 Schaefer, Alex, 74, 81n3
rational deliberation, human flourishing Schlick, Moritz, 182
through, 25 Schmidtz, David, 76
Rawls, John, 63, 64, 80n1, 130n12; Schnurer, Eric B., 179
deep disagreement stressed by, Schoelandt, Chad van, 76
121; property-owning democracy Scott, James, 3, 23, 91–92
proposed by, 127; A Theory of seasteading, 182–83
Justice by, 68; on well-ordered Secession Reference (Supreme Court of
society, 72 Canada), 214
Raz, Joseph, 24 second-order social dilemma, 148–49
realism, ideal theory rejected for, 80 Second World War, 176, 210
Regional Conventions of Human security companies, 179–80
Rights, 194 self-determination, immigration
relationships, freedom to flourish and, 177
preserved by, 32 self-governance, 139–40; concept
residual claimants, 148, 158n3 of, 145–48; external interference
RESPUBLICA research project, 13n1 undermining, 146; Gaus on, 147; of
restaurant industry, 124 irrigation systems, 142–43; Ostrom,
right to fair trial, 194–95 E., on, 156–57; participatory element
risk management strategies, 117, 128 of, 144–45; polycentric order of,
rival goods, 141 77–78; social dilemmas solved
Roman Catholics, 46, 57 through, 11; state capacity and,
Roman Empire: decentralization 147–48
impacting, 100–101; local civic self-rule, private freedoms contrasted
autonomy during, 99, 101–2; military with, 47
of, 104; monopolies during, 103; Sen, Amartya, 27
urban sites in, 102 Serrano, Olivia, 36n1
Rome, ancient, 98 Sieyes, Abbé, 205
Rostovtzeff, Michael, 104 Simon, Yves, 52, 59n6
Rousseau, Jean-Jacques, 205, 218n3 single-sovereign solutions, citizens
Rufus, L. Tarius, 107n13 believing in, 157
Rule of Law, 192–96, 197n2, 197n4 smart contracts, 180–81
rulers, preference for proximity of, Smith, Adam, 137
33–34 social and institutional complexity,
rules: basic validity, 78; formal, 148; 31–32
for institutions, 78; justice and, social complexity, 90, 98; direct control
76; norms contrasted with, 151; in and, 91–93; governance under, 34;
polycentric orders, 69–70 government effectiveness contrasted
Russia, Ukraine invaded by, 174 with, 95–96; human flourishing
increasing with, 23–24; information
Sabah (Malaysia), 214–15 increased by, 94; personal freedom
Saint Kitts and Nevis, constitution creating, 22; polycentricity and,
of, 215 93–95, 105; state capacity increased
sanctions, coercive, 30 by, 106; technology increasing, 106

LQGH[3DJH 6WDJH'UDIW
 Index 233

social contracts, 165–66, 168 democracies, 116; polycentric

social contract theories, 65 democracy solving, 117
social cooperation, justice Stannery Parliaments, of England,
structuring, 63 218n2
social coordination, polycentric systems Stasavage, David, 96, 107n6
of, 4 the State, 106n2; administrative layers
social dilemmas, 11, 137, 148–49 within, 93; citizens-customers
social engineering, 127, 130n17 competed for by, 167–68; common
social life, 3 good not realized through, 48;
social media networks, 180 complexity faced by, 93; direct
social norms, 150–51 control relied on by, 88–90;
social order: academic as monopolies, 166; political
world centralizing, 7–8; all- philosophy designing, 165; private
encompassing, 37n12; complex, sector entangled with, 152–53; social
8, 23, 35; monocentric state order through, 19; social planning by,
influencing, 1; polycentricity as tool 24–25; territorial monopoly defining,
for understanding, 154; through the 172; Tocqueville on, 119; top-down
State, 19. See also normative order challenge undermining, 91–92;
social planning, by the State, 24–25 Weber on, 118–19; Westphalian
social pluralism, liberal democracies Model of, 12
and, 8 state administration, bottom-up
social sciences, polycentric thinking challenge of, 91–92
in, 4–6 state capacity, 106, 147, 147–48
social scientists, Buchanan, J., on, 155 State-centric paradigms, 5
social welfare function, 155 state formation, panarchist theory of, 12
society, political structure chosen by, 96 Stateism, 7–8
South Africa, 209, 210 states: the cloud migrated to by, 181–82;
Southwood, Nic, 67 constitutional, 201; the internet
the sovereign, justice and, 66 benefiting, 178–79; jurisdiction not
sovereign rule, associations warred over by, 173; legal practices
disadvantaged under, 31 not monopolized by, 187–88; liberal-
sovereign states: colonizing tendencies democratic, 122, 127–28; markets
of, 30–31; homogenizing effects of, and, 140; monocentric, 1, 18, 118,
37n14; panarchy contrasted with, 166 122; networked, 181–82; non-
sovereignty: constitution of, 205, territorial, 165–66; poorly managed,
217; exit limited under, 177–78; 171–72. See also nation-states;
government distinguished from, sovereign states; specific states
205–6; popular, 205–6, 208 subsidiarity: Aristotelian pluralism
special functionality, of polycentric compared with, 58; order model
systems, 87 overlapping with, 57; principle of, 33
special interests, 146 Supreme Court of Canada, 214
Srinivasan, Balaji, 180, 181 synoptic facts, administrators relying
stability, 11 on, 91–92
stability problem: diachronic or dynamic systemic benefits, of polycentric
perspective on, 121–22; in liberal democracy, 126–27

LQGH[3DJH 6WDJH'UDIW
 234 Index

Tarko, Vlad, 69, 75–76, 88, 122 urban sites, 101, 102
taxes, non-voluntary, 30 Utz, Arthur, 59n2
team production, 143, 148
technology: blockchain, 180–81; value pluralism, 42
communication, 98, 106; social van Schoelandt, Chad, 76
complexity increased by, 106 Varieties of Democracy (data set), 147
territorial monopolies, 170, 172 vertical competition, horizontal
territorial wars, 173–74 contrasted with, 89, 94–95
A Theory of Justice (Rawls), 68 Viola, Francesco, 12, 187, 189–90
Thiel, Andreas, 6, 13n2 vocational autonomy, 218n1
Thirty Years’ War, 175 voice dichotomy, exit and, 171
thought experiments, Nozick supported voluntarism, 32–33
by, 174
Tiebout competition, 99, 107n9 Wagner, Richard E., 140
Tocqueville, Alexis de, 52, 117, 140; Walzer, Michael, 76
Bish on, 157; Democracy in America wars, territorial, 173–74
by, 129n6; on the State, 119 water governance, 140–45
Tolkien, J. R. R., 116 water management, Ostrom, E.,
top-down challenge, the State studying, 156
undermined by, 91–92 Weber, Max, 54, 117–19, 129n5,
tragedies of the commons, 137–39, 157–58
148, 150 welfare system, migrants and, 176–77
“Tragedy of the Commons” well-ordered society, 72–73
(Hardin), 139 West Basin, in California, 156
Treaty of Waitangi, 216 Westminster Model, 219n6; constituent
Trojan War, 173 assemble contrasted with, 209–10;
Trump, Donald, 130n7 constitutions of, 206–7, 211–12, 217;
truth, legality and, 198n7 diversity and, 209; French republican
Tucker, Aviezer, 184n1 tradition differentiated from, 201–4,
Tullock, Gordon, 137 208, 217–18; of parliamentary
Tully, James, 22 democracy, 13
Westphalian Model, of the State, 12
Ukraine, Russia invading, 174 Westphalian order, 175, 183
unanimity, principle of conceptual, 156 world economy, immigration impacting,
uniformity: associations displaced by, 175–76
119, 127–28; liberal-democratic Wright, Matthew, 48, 59n7
states driving for, 128; political
fragility created by, 122 Zionism, 181
United Kingdom, 207 Zweckrationalität. See formal-
United States, 119–20, 130n7 procedural rationality
Universal Declaration of Human Rights
(1949), 194

LQGH[3DJH 6WDJH'UDIW
 About the Contributors

EDITORS

Dr. David Thunder is a research fellow in political philosophy at the

University of Navarra’s Institute for Culture and Society. He obtained his
Ph.D. in political science from the University of Notre Dame, and prior to his
current post, he held research and teaching positions at Bucknell University,
Princeton University, and Villanova University. His research investigates the
social and institutional conditions under which people can pursue flourishing
lives individually and in community. Dr. Thunder’s academic writings include
Citizenship and the Pursuit of the Worthy Life (Cambridge University Press,
2014), The Ethics of Citizenship in the 21st Century (edited volume, Springer,
2017), and numerous articles in prominent academic journals such as the
American Journal of Political Science, Political Theory, and the Journal of
Business Ethics. His latest book, The Polycentric Republic: A Theory of Civil
Order for Free and Diverse Societies (forthcoming with Routledge in 2024)
defends a federalist, decentralized, and pluralist ideal of civil order sensi-
tive to the governmental role of non-state organizations in many different
spheres of life.

Dr. Pablo Paniagua is an economist and a research fellow at King’s College

London (KCL). He is also an associate professor of political economy and
director of the master’s degree in philosophy, politics, and economics pro-
gram at Universidad del Desarrollo (UDD), Chile. He received his Ph.D.
in political economy from the University of London and his M.Sc. in engi-
neering and finance at Politecnico di Milano. His research engages with
broad economic and political questions at the intersection between politics,
philosophy, and economics (PPE), focusing on the crisis of liberal democ-
racy, economic theory, and the governance of collective action. He is the
author of over thirty articles, essays, and books dealing with various aspects
of political economy, philosophy, and the governance of social dilemmas.

235

]DXWKRUV3DJH 6WDJH'UDIW
 236 About the Contributors

Dr. Paniagua’s work has appeared in journals such as the Cambridge Journal
of Economics, Public Choice, and Economy and Society. His forthcom-
ing book is Governing Money and Banking: The Philosophy, Politics, and
Economics of Macroeconomic Inquiry (Routledge, under contract).

OTHER CONTRIBUTORS

Dr. Mark Hoipkemier is assistant professor of politics, philosophy,

and economics at the University of Navarra. His research is primar-
ily concerned with clarifying the concept of common goods, both
analytically and historically, and developing its implications for con-
temporary challenges. His forthcoming book, The Price of the Common
Good: Markets, Corporations, and Political Economy (Notre Dame, 2025),
argues that markets and firms, which we normally think of only as vehicles
of private interest, involve us all also in morally formative shared projects
oriented to common ends. On this view, we cannot do justice even to politi-
cal economy as we know it, much less as it might ideally be, without relying
on common-good reasoning. Dr. Hoipkemier’s next big project aims to give
a fuller account of Aristotelian pluralism as a theory of common goods more
generally, and as a linchpin of realist, teleological social theory.

Dr. John Thrasher is the Wang-Fradkin Associate Professor in Philosophy

and the Smith Institute for Political Economy and Philosophy at Chapman
University in Orange County, California. He is the co-editor, with Michael
Moehler, of New Approaches to Social Contract Theory: Liberty, Equality,
Diversity, and the Open Society (Oxford University Press, 2024). He is
the co-author (with the late Jerry Gaus) of a textbook on formal methods
in PPE, Philosophy, Politics, and Economics: An Introduction (Princeton
University Press, 2021), and the co-author (with Dan Halliday) of The Ethics
of Capitalism (Oxford University Press, 2020). His work has appeared in
prominent academic journals such as Philosophy and Phenomenological
Research, The American Journal of Political Science, The Journal of Politics,
Synthese, Human Nature, The Journal of Moral Philosophy, Political Studies,
Behavioral and Brain Sciences, Biology & Philosophy, Social Philosophy &
Policy, The European Journal of Philosophy, and several edited volumes.

Dr. Dries Daems is assistant professor at the Department of Art and Culture,
History, and Antiquity at Vrije Universiteit Amsterdam. Dr. Daems received
his Ph.D. in archeology from KU Leuven, Belgium. His research interests
include the study of social complexity and urbanism through computational
modeling and material studies. He specializes in Iron Age to Hellenistic

]DXWKRUV3DJH 6WDJH'UDIW
 About the Contributors 237

Anatolia and the Eastern Mediterranean. His work aims to advance the inter-
face between classical and digital archeology through innovative interdisci-
plinary and computational approaches.

Dr. Alexander Schaefer is assistant professor of philosophy and core fac-

ulty in the philosophy, politics, and economics program at the University at
Buffalo. His work aims to put philosophy in dialogue with the social sciences,
and his articles have appeared in The American Journal of Political Science,
The Cambridge Journal of Economics, Economics and Philosophy, Synthese,
and The Philosophical Quarterly. Prior to joining UB, he received his Ph.D.
in philosophy from the University of Arizona and spent two years at NYU’s
Classical Liberal Institute as a research fellow.

Dr. Kaveh Pourvand is a political theorist and currently a postdoctoral

research associate at the Center for the Philosophy of Freedom, University of
Arizona. His research covers contemporary liberal thought, collective politi-
cal agency, the ideal/non-ideal theory distinction within political philosophy,
the relation between normative principles and feasibility, and distributive
justice. Prior to joining the Freedom Center, he taught at King’s College,
London, and obtained his Ph.D. from the London School of Economics. His
work is set to appear in Critical Review of International Social and Political
Philosophy and Social Philosophy and Policy.

Dr. Vlad Tarko is associate professor and head of the Department of Political
Economy and Moral Science at the University of Arizona. His work is primar-
ily in the areas of polycentric governance, varieties of capitalism, and the his-
tory of political economy. His writings include Elinor Ostrom: An Intellectual
Biography (Rowman & Littlefield International, 2017), Understanding
Capitalism: An Introduction to Political Economy (Polity Press/Wiley, under
contract), Capitalist Alternatives: Models, Taxonomies, Scenarios (Routledge,
2015; co-authored with Paul Dragos Aligica), Public Governance and the
Classical Liberal Perspective (Oxford University Press, 2019; co-authored
with Paul Dragos Aligica and Peter Boettke), and Elinor Ostrom and the
Bloomington School: Building a New Approach to Policy and the Social
Sciences (Agenda Publishing/Columbia University Press, 2021; co-edited
with Jayme Lemke). Understanding Capitalism: An Introduction to Political
Economy is forthcoming with Polity Press.

Dr. Aviezer Tucker is the director of the Center for Philosophy of

Historiography in the Department of Philosophy at the University of
Ostrava, Czech Republic. Dr. Tucker is a philosopher and political theorist.
He co-edited the collection Panarchy: Political Theories of Non-territorial

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 238 About the Contributors

States (2015), and is the author of the monographs Democracy Against

Liberalism (2020), The Legacies of Totalitarianism (2015), Our Knowledge
of the Past: A Philosophy of Historiography (2004), and The Philosophy and
Politics of Czech Dissidence: From Patocka to Havel (2000).

Dr. Pilar Zambrano is associate professor of law at the University of Navarra,

Spain. She graduated in law from the Catholic University of Buenos Aires,
Argentina, in 1995 and she obtained her Ph.D. in law from the University
of Navarra, Spain, in 2004. Since 2004, she has developed two distinct but
intertwined lines of research, one dealing with the problem of objectivity in
legal interpretation in the age of pluralism, and the other dealing with human
dignity and the right to life. Among many other publications, she has authored
the books La inevitable creatividad en la interpretación jurídica: Una aproxi-
mación iusfilosófica a la tesis de la discrecionalidad (Universidad Nacional
Autónoma de México, México, 2009) and La disponibilidad de la propia vida
en el liberalismo político (Ábaco, Buenos Aires, 2005), as well as over fifty
papers, including both book chapters and articles in journals such as Ratio
Iuris, Recthstheorie, Jurisprudence, and Doxa.

Dr. W. Elliot Bulmer is a senior advisor (Constitution Building) at the

International Institute for Democracy and Electoral Assistance, where he
has had practical engagement in constitutional change processes around the
world, including Sudan, Afghanistan, Myanmar, Ukraine, Georgia, Egypt, Sri
Lanka, and Tuvalu. He was previously a lecturer in politics at the University
of Dundee and an officer in the Royal Navy. He specializes in the compara-
tive study of constitutions and the politics of constitutional change, with a
focus on the Westminster Model and Commonwealth democracies. His
books include Constituting Scotland: The Scottish National Movement and
the Westminster Model (Edinburgh University Press, 2016) and Westminster
and the World: Commonwealth and Comparative Insights for Constitutional
Reform (Bristol University Press, 2020).

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Political Philosophy • Political Economy

P an iag ua
T h un d e r a n d
Series: Polycentricity: Studies in Institutional Diversity and Voluntary Governance

POLYCENTRIC
Series Editors: Lenore T. Ealy and Paul Dragos Aligica

“This unique contribution brings together both the practical and the ethical case for poly-

GOVERNANCE AND
centric governance. It offers an inspiring ethical vision of polycentricity as a philosophy
for life in diverse and complex societies.” —Mark Pennington,
 Professor of Political Economy and Public Policy, King’s College London

“Polycentric governance (PG) goes beyond federalism and separation of powers to fully
embrace both the full diversity of human aspirations and the highly complex array of
overlapping authorities and informal institutions required to encompass and nurture that
THE GOOD SOCIETY
diversity. Contributors broaden their horizon to consider normative efforts to reconcile
A Normative and

POLYCENTRIC GOVERNANCE AND THE GOOD SOCIETY

plural visions of human flourishing with general principles of justice and social order,
and to ensure the ‘intelligibility’ of overlapping conceptions of law. Personally, I was most
enamored with the concept of ‘non-territorial polycentricity,’ but I’m sure all readers will Philosophical Investigation
encounter ideas sure to receive careful attention in future works on complex governance.”
 —Michael McGinnis, Senior Research Fellow and former director, Ostrom Workshop,
 and Professor Emeritus, Political Science, Indiana University, Bloomington edited by David Thunder
“Elinor and Vincent Ostrom launched the study of polycentric systems, which has and Pablo Paniagua
gained momentum in the last decade as an alternative framework for social orders. Pablo
Paniagua and David Thunder pursue Ostrom’s agenda and put together a collection of
essays from diverse disciplines that might become a fundamental contribution to reimag-
ining the state through the lenses of polycentric governance.”
 —Mario I. Juarez-Garcia, Tulane University

Polycentric Governance and the Good Society is the first extended academic work to explore in depth
what it means, not only from an economic and organizational standpoint but also from
a broader ethical, sociological, and anthropological perspective, to live in a polycentric
political system.

CONTRIBUTORS: Dr. W. Elliot Bulmer, Dr. Dries Daems, Dr. Mark Hoipkemier, Dr.
Pablo Paniagua, Dr. Kaveh Pourvand, Dr. Alexander Schaefer, Dr. Vlad Tarko, Dr. John
Thrasher, Dr. David Thunder, Dr. Aviezer Tucker, Dr. Pilar Zambrano

DAVID THUNDER is research fellow in political philosophy at the University of

Navarra’s Institute for Culture and Society.

PABLO PANIAGUA is economist and research fellow at King’s College London

(KCL). He is also assistant professor of political economy and Director of the Masters
in Philosophy, Politics, and Economics program (MPPE) at Universidad del Desarrollo
(UDD), Chile.

LEXINGTON BOOKS
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Rowman & Littlefield
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