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The Structure of LibertyJustice and the Rule of Law$
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Randy E. Barnett

Print publication date: 2000

Print ISBN-13: 9780198297291

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0198297297.001.0001

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Constitutional Constraints on Power

Constitutional Constraints on Power

(p.257) Thirteen Constitutional Constraints on Power
The Structure of Liberty

Randy E. Barnett

Oxford University Press

In a polycentric constitutional order, as distinct from a monocentric one, multiple legal systems exercise the judicial function and law enforcement agencies exercise the executive function. These multiple decision‐makers operate within constitutional constraints that permit them to co‐exist and adjust to each other. A decentralized or polycentric constitutional order provides an institutional framework to address more effectively the problem of enforcement abuse. Such an order will arise naturally if two new constitutional principles are adopted: the nonconfiscation principle stipulates that law enforcement and adjudicative agencies should not be able to confiscate their income by force, but should have to contract with the persons they serve; the competition principle stipulates that law enforcement and adjudicative agencies should not be able to put their competitors out of business by force. How a polycentric legal order better handles the problems of selection, corruption, capture, and the halo effect is explained.

Keywords:   capture, competition, confiscation, constitutional constraints, corruption, halo effect, law enforcement, legal system, polycentrism, selection

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