Reciprocal Exchange as the Basis for Recognition of Law: Examples from American History

The literature of American legal history is primarily a history of federal and state governments, creating the false impression that these governments have produced and enforced all relevant law. Indeed, there seems to be a widely held belief that law and order could not exist in a society without the organized authoritarian institutions of the state. But while law can be imposed from above by some powerful authority, like a king, a legislature, or a supreme court, law can also develop "from the ground" (Berman, 1983, p. 274), as a result of a recognition of mutual benefits, through exchanged agreements (explicit or implicit contracts) to obey and participate in the enforcement of such law. Groups whose law has been contractual, arising as a consequence of recognized reciprocity and exchange, have functioned very effectively throughout history (Benson, 1990).l Indeed, American history is full of examples of legal system which were not backed by a state authority. In order to illustrate how legal systems functioned without the backing of state authority, the following presentation is divided into five sections. First, a general "theoretical" discussion of the implications of law based on reciprocity and exchange is provided. Then several examples of non-statebacked legal systems in American history are detailed in light of the theoretical presentation: Various religious, ethnic and "utopian" communities are introduced in section 11; American commercial law is discussed in section 111; and in section IV,organizations such as land clubs, wagon trains, mining camps, and vigilantes that provided law and order on the western frontier are presented. Section V contains concluding comments.