THE THESIS
Rules by contract
An institution whose internal rules differ from those around it because its members have accepted them by contract, and not because a State has granted an exemption over a territory.
The distinction matters in practice even more than in theory. An exemption is granted, and what is granted can be withdrawn by the same authority that gave it. A contract is agreed, and its enforcement is the ordinary business of the courts, which will uphold it precisely because they had no part in drafting it. The first route depends on political favour and dies with it; the second depends only on the general law of obligations, which no administration would repeal in order to make life difficult for a school of craftsmen.
What one gives up obtaining
By this route one obtains no territory, no fiscal autonomy, no migration policy of one’s own, and no exemption from laws of general application. The institution is subject to the criminal law, the labour law, the tax law and the building regulations of the State in which it stands, exactly like a private school or a monastery. Saying so first avoids the most frequent misunderstanding, namely that some form of extraterritoriality is being proposed.
What one obtains
One obtains room for manoeuvre within those constraints, and it is far wider than is commonly believed. Within a private association the members can be bound to rules of conduct, of working dress, of hours, of use of the common property, of admission of new members and of settlement of their own disputes, on terms that no public authority could impose and that none will come to disturb, because the members have accepted them.
The thesis of this project is that the space between what States are willing to concede and what private agreement already allows is wide, largely unused, and enough to build in.
Why this answers two problems at once
The serious attempts to set up legal orders with rules different from those around them have all met the same limit: the rules have to be granted by a host government, and host governments are slow, sovereign and subject to elections. A project can spend five years obtaining a concession and lose it at the change of administration. The capital required before anything can be tested is large, because a territory has to be acquired and serviced before a single person lives under the new rules. The failures are therefore expensive and yield little information, since what usually fails is the negotiation and not the institution.
Separately, the European debate on communities that keep customs of their own has narrowed to two outcomes: those customs dissolve into the surrounding society, or the communities that carry them are kept at a distance. Both positions take it for granted that a distinct community is a problem awaiting a solution.
What corrodes both sides is not so much difference as isolation. A man without a trade, without a reputation among those who know his work and without anyone who answers for his conduct, is available to whoever offers him a place. The remedy for that condition does not lie in the removal of his customs, but in a place where he has work, a master, obligations towards others and something of his own to be proud of.
The two problems share one assumption: that different rules require a territory, and that a territory requires the permission of a State. Take that assumption away and both change shape. A community of a hundred people bound by statutes they have signed needs neither a square kilometre nor a concession: it needs a building, a trade and an enforceable agreement. The first costs little, the second is the oldest thing there is in Europe, and the third is already the law in force.