Hayek & Cowboys: Customary Law in the American West
The settlement of the American West during the nineteenth century generated a flourishing Hayekian legal order because state-based legal systems were ab-sent from large parts of the West for an extended period of time. Without the crowding out of private law that accompanies the state’s assertion of a monopoly over some areas of the law and creation of subsidized competition in others, individuals created dispute resolution mechanisms and rules based on custom and con-tract. These examples of legal systems built by not-particularly-well-educated cowboys, gold miners, and migrants suggest that Hayekian legal orders can serve as effective, complete substitutes for state-provided law.
Consider, for example, this description of the legal situation in Denver in 1860, written by J.H. Beadle, a newspaperman traveling through the area:
The miners’ courts, the people’s courts, and “provisional government” (a new name for [the attempted territory of] ‘Jefferson’) divided jurisdiction in the mountains; while Kansas and the provisional government ran con-current in Denver and the valley. Such as felt friendly to either jurisdiction patronized it with their business. Appeals were taken from one to the other, papers certified up or down and over, and recognized, criminals delivered and judgments accepted from one court by another, with a happy informality which it is pleasant to read of. And here we are confronted by an awkward fact: there was undoubtedly much less crime in the two years this arrangement lasted than in the two which followed the territorial organization and regular government.
