Free Capitalist Network - Community Archive
Mises Community Archive
An online community for fans of Austrian economics and libertarianism, featuring forums, user blogs, and more.

Law in "practice" in an anarcho-capitalist society

rated by 0 users
This post has 243 Replies | 11 Followers

Not Ranked
Posts 40
Points 1,005
Cortex Posted: Fri, Aug 28 2009 8:47 AM

Hi, I have a couple of question regarding that subject. It is possible that I will make some mistakes about what the anarcho-capitalist stance on the legal system actually is. (And I quoted the word practice not because I doubt it, but because as far as I know there hasn't been any practice so far)

So,

1) The substantial civil law is lex contractus according to the non-agression principle. I can easily imagine that when buying/selling, renting, long story short the obligations are made for the NAP. No one enters an obligation without wanting it.

 

But how about rights in rem? Philosophically, the AC answer is the self-ownership, correct? But legally? In an AC society a person steals a thing on what grounds is his action illegal? He might reply:"Hey hey, I didn't agree with respecting your so-called property, I am convinced that property is a theft and that the thing is just as mine as yours and now you are pushing your political opinions on me." On what legal grounds is the right to private property applicable to all people?

2) The substantial criminal law. There is basically none or better there is no difference between the civil and the criminal law. Every action is harmful to a certain person, never to the society as whole thus rendering the term "criminal" meaningless. Fine, crystal clear so far. In a stateless society many crimes won't be crimes - typically vicitmless crime or treason which can actually be also considered a victimless crime depending on the definiton. But nevermind, sorry for the side-track. However some crimes as they are today are directed against an individual person. Evergreens like murders, theft or fraud. But those are already treated by the civil law. If you murder a person, you can be sued for damages by his relatives. So it seems to me that in a AC society, there is no such thing as a crime as we use the term today, either they are victimless and cannot be considered transgressions in an AC society or they merge with the civil law. Am i right?

3) The procedural law.

It would be better to cover in a simple hypothetical "case study" which will include the substantial law as well.

So, there is an anarcho-capitalist society. A and B are walking the street when A pick pockets B. B notices it and because he is a staunch pacifist he refuses to use violence to recover his wallet right here and rigt now. Instead this conversation ensues:

B: "Seriously, man, what's that supposed to mean?"

A: "Like what?"

B:"You stole my wallet"

A:"So?"

B:"Give it back to me."

A."No way, no how"

B:"Fine, as you like it, I will hire a private court and it will sentence you to return it."

A:"Yeah, good luck with that 'cause I ain't coming there."

A  few days later a private court hired by B assembles and sentences A in absentia (because in their private lawbook there is nothing wrong with sentencing people in absentia) to return the wallet (or to give to B its monetary equivalent, whatever you like more) By that time A is sitting comfortably in his home and is enjoying what he consideres spoils of war when somebody kicks off the door and grabs the wallet from his hands. It turns out that it is a private company hired by B to execute the sentence. Consequently A hires a private court and a private company. He says that the wallet is his and that A is a liar. And so it goes on and on and the wallet changes its possessor until one of the gets tired of it, runs out of money or dies.

Where did I make a mistake? Or is anarcho-capitalism comfortable with this picture?

And let's imagine a scenarion beginng exactly the same with a slight change in B's behaviour. He fights back and recovers his wallet in a minute. Next thing he knows he is called to a private court hired by A who sues him for damages on his health. B refuses to pay stating that it was self-defence and hires another court that agrees with that it was righteous self-defence. Mean while a company hired by A takes his TV, because he refuses to pay. A thinks it is a closed case, but B refuses to accept it and hires a court that sentences A for theft. B hires a company to recover his television. A consideres this a theft and hire a court....

 

 

 

  • | Post Points: 150
Not Ranked
Posts 40
Points 1,005
Cortex replied on Fri, Aug 28 2009 3:35 PM

Nothing? Nobody? Not even "jesus, read this before asking so stupid questions"?Smile

  • | Post Points: 35
Top 150 Contributor
Posts 515
Points 8,495
fsk replied on Fri, Aug 28 2009 3:59 PM

The nightmare scenario would not happen in a really free market.  A free market police agency wouldn't let small disputes escalate to all-out war.

Here's how the nightmare scenario actually works.

A State bureaucrat says that you have to give him 50% of your labor.  You refuse.  A bunch of armed thugs come to kidnap you.  Either you resist and are shot, or you are kidnapped and spend years in jail.  You have no recourse, because the State has a monopoly.

In a free market, if a business owner started acting like an idiot, they'd lose their customers.

I have my own blog at FSK's Guide to Reality. Let me know if you like it.

  • | Post Points: 20
Top 50 Contributor
Posts 1,649
Points 28,420

1/2 are confusing to me at times. What is this?

But how about rights in rem?

Victimless crimes aren't considered by us, and often real crimes are also a part of civil law. The problem is that even when the state punishes for real crimes, it isn't focused on restitution to the victim. Moreover, it makes the victim and the rest of the state's subjects pay to house violent criminals through taxes.

This might clear up some problems about civil law.

3 - If B really was a staunch pacifist, he wouldn't press charges. Yes, there could be cases of defense agencies going back and forth over differences. For the most part though, I see this as a non-issue. What percent of people agree that being stabbed in the face while walking innocently down the street is a crime, 99+? In any case, A and B will more likely agree to a certain court or series of courts in a chain of arbitration. Since justice is now for profit, and profit is measured by success, and success is measured by being fair, it is more likely that courts will establish many standards between them. There would probably be non-profit and special courts for cases where the defendant refuses to any arbiters.

http://mises.org/journals/jls/11_2/11_2_5.pdf

 

Democracy means the opportunity to be everyone's slave.—Karl Kraus.

  • | Post Points: 20
Top 200 Contributor
Male
Posts 414
Points 6,780
MatthewF replied on Fri, Aug 28 2009 4:07 PM

Cortex:

Nothing? Nobody? Not even "jesus, read this before asking so stupid questions"?Smile

Nothing wrong with questions buddy. Read Chaos Theory for free here at Mises: http://mises.org/books/chaostheory.pdf . It is very short and easy to read and will give you a good foundation for pondering these types of questions.

Then post some more and we can fill in the gaps.

  • | Post Points: 5
Not Ranked
Posts 40
Points 1,005
Cortex replied on Fri, Aug 28 2009 4:29 PM

sk: Thank you for your answer.

1) Why wouldn it? As long as A and B pay enough to cover theor costs of this "all-out-war"? After all, it's not really all-out-war. Those two agencies don't physically interfere with each other. It's not causing any excitement among people.

2) What if one of those private companies decides to imprison A or B? And even if his relatives know who did that ( which  cannot be always granted) it turs out that the company is strong enough to repeal their attacks? You sort of answered that with "they'd lose their customers." But what if the company is strong enough to survive the loss of customers and still enforce its will? Wouldn't that make it more or less a state? Which makes me think - isn't the contmeporary state of things (multiplicity of more or less independent states) bascially anarcho-capitalism on a "higher" level? The customers (citizens) can move to aother state if they don't like this one. Yes sometimes the state prevents them, but cannot that ( i.e. a company blackmails its customers in its struggle for power) be expected to happen in an anarcho-capitalist society too?

 

I am not necessarily pro-state. Right know I am open to ideas and anarcho-capitalism sounds interesting, but I was taught to try to find holes in an appealing idea before the holes find meSmile That's all.

 

  • | Post Points: 20
Not Ranked
Posts 40
Points 1,005
Cortex replied on Fri, Aug 28 2009 4:39 PM

To Olovetto and MatthewF:

 

Rights in rem...well that's what the dictionary says. The continental law based on the Roman law distinguishes "iura in rem" and "obligationes". Obligationes are basically contracts, they are characterised by being relaitve (that is their validity applies only to the sides of the contracts). It may sound like stating the obvious, but it is quite important to distinguish these two in more sohpisticated reasoning in continental/Roman law. Iura in rem are rights that everybody must respect, typically property right .It is often explained as an "absolute relationship" meaning that it forces all people to respect the right to property whether they personally agreed to it or not. Which is what I was asking. The contracts don't really need any lawgiver, the legitimacy of enforcing them is covered by the fact that the defendant signed the contract. But nobody signes any contracts to respect somebody else's property. The continetal/Roman concept solves this through the state, through the lawgiver who declares property rights contracts who encompass all people. My question was therefore what would be the legal base for protection of property in the abence of the lawgiver?

 

Anyway, I will read what you all suggested, thanks a lot

  • | Post Points: 5
Top 150 Contributor
Posts 515
Points 8,495
fsk replied on Fri, Aug 28 2009 5:02 PM

Why would A and B waste resources fighting a war?  If other people started being hurt by the conflict between A and B, then their police agencies would stop A and B and whoever's helping them.

If a private police agency has a monopoly and can abuse their power, then they're the government.

If you're concerned about "What happens if a rogue for-profit police agency goes around harassing people?", there's already a rogue private for-profit police agency.  It's called the government!

Once you have a really free market, it'll be practically impossible for someone to form a monopoly.

Suppose someone had a strong market position and started abusing it.  Other people would flock to competing police agencies.

Monopolies only occur when backed by the State.  You might be worried "What happens if someone has an abusive telephone monopoly?"  That occurs because the local telephone monopoly has an explicit State-backed license.  It's illegal for me to lay my own telephone cable, even if I could get permission from residents in the area.

I have my own blog at FSK's Guide to Reality. Let me know if you like it.

  • | Post Points: 20
Not Ranked
Posts 40
Points 1,005
Cortex replied on Fri, Aug 28 2009 5:21 PM

fsk:

Because people don't always act strictly rationally. Or they don't ac what an accountant would call "rationally". I like to think about it tthe way that hey still act in their self interest because the pride they feel when they keep on "fighting" simply brings them pleasure enough to compensate for the monetary loss.

I am a lawyer, I know it very well, neighbours sue each other for years for a worthless square meter of land, it costs them tremendous money especially when compared to their income and yet they refuse to step back.

 

Ad State  = rogue agency harassing others. Yes, I don't deny that, but my question is whether it won't end up this way anyway? Won't some company sooner or later emerge as "victorious"? Isn't the state some sort of constant in "human equations"? A thing we might dislike as much as possible, but which will eventually emerge? ïsn't anarchy temporary by nature? Doesn't history suggest that it is human nature to create coercive organisations?

 

Again, just asking questions, not stating opinions.

  • | Post Points: 20
Top 150 Contributor
Posts 515
Points 8,495
fsk replied on Fri, Aug 28 2009 5:46 PM

If you are a lawyer, then you have received tremendous pro-State brainwashing.

insane State law != natural law

Suppose that two people decide that they *WANT* to escalate a small dispute.  A State court is perfectly happy to let each of them spend hundreds of thousands of dollars in legal fees.

A free market court might say "Why are you wasting our time with this trivial issue?"

Suppose two people have a dispute over $100, and it's not clear who's right.  Then, both private police agencies will pay their customer $100, move on to the next issue, and work on improving their procedures for next time.  A rational businessman won't wreck his business for $100.

If it's more valued goods, then a third police agency C might be hired to arbitrate.

Suppose that A wants to harass B, but B wants to be left alone.  The State legal system makes it easy for A to harass B with a lawyer.  In a free market court, if A claims that B owes A $100, then B's police agency would just pay A $100.  If A insists on pursuing frivolous claims, and his police agency backs him, then his police agency will start losing customers or have other police agencies refusing to work with it.

The State is the reason that small disputes escalate, because the State has an absolutely unaccountable monopoly.

I have my own blog at FSK's Guide to Reality. Let me know if you like it.

  • | Post Points: 20
Not Ranked
Posts 40
Points 1,005
Cortex replied on Fri, Aug 28 2009 6:10 PM

I may have received some kind of brainwashing, but I still think I favour liberty more than my former professors who were often (post)communistsSmile But there were some iusnaturalists, which I guess is the favoured school of legal thought among Anarcho-capitalists.

 

Nevertheless, to your argument. A court does indeed charge its fees accroding to the claimed value of the disputed thing. But court fees are marginal in total expenses of a litigant. 90+ percent of it is made by the barrister's salary which is not controlled by state. In the Czech republic, if you sue somebody for §100 you will pay §4 (!), but hundreds if not thousands (!) dollars to the barrister. And yet people are willing to go to courts, because of the pride, the immortal companion of a human being. So, I (and all my colleagues) don't care about the value of the lawsuit. We charge everyone the same. We charge X money reagrdless of the value of the thing. Are you willing to pay it? Fine, I'll take it and I don't care if it is a mall or a pen. I think it is safe to assume that private courts would do the same.

 

Why would the B's agency give those §100 to A? They would tell B: "Well, one hour of our time is worth Y money, pay it or find somebody elese."

 

 

  • | Post Points: 5
Top 50 Contributor
Male
Posts 2,940
Points 49,115
Conza88 replied on Fri, Aug 28 2009 8:44 PM

http://mises.org/store/Anarchy-and-the-Law-P335.aspx

Stick out tongue

Ron Paul is for self-government when compared to the Constitution. He's an anarcho-capitalist. Proof.
  • | Post Points: 5
Top 150 Contributor
Male
Posts 573
Points 9,410
David Z replied on Sat, Nov 28 2009 1:19 AM

Cortex:
But how about rights in rem? Philosophically, the AC answer is the self-ownership, correct? But legally? In an AC society a person steals a thing on what grounds is his action illegal? He might reply:"Hey hey, I didn't agree with respecting your so-called property, I am convinced that property is a theft and that the thing is just as mine as yours and now you are pushing your political opinions on me." On what legal grounds is the right to private property applicable to all people?

Because denying ownership is self-contradictory: if someone steals from you, and offers the above as defense, you can freely take back what you think is yours using his own revealed system.

Cortex:
A  few days later a private court hired by B assembles and sentences A in absentia (because in their private lawbook there is nothing wrong with sentencing people in absentia) to return the wallet...somebody kicks off the door and grabs the wallet from his hands. It turns out that it is a private company hired by B to execute the sentence.

the principled approach suggests that the situation above would be unwarranted. Even though someone may be tried in absentia, and found "guilty", no man (or group of men under any color) would be rightfully permitted to invade the alleged thief's private property.  In practice, this means public ostracism and exercise of property rights to exclude the "guilty" individual.

Cortex:

And let's imagine a scenarion beginng exactly the same with a slight change in B's behaviour. He fights back .... B hires a company to recover his television. A consideres this a theft and hire a court....

Let's worry about the first few questions before we bother with this reductio.

============================

David Z

"The issue is always the same, the government or the market.  There is no third solution."

  • | Post Points: 35
Not Ranked
Posts 71
Points 955
bigwig replied on Sat, Nov 28 2009 2:31 AM

You guys are making this way too complicated.

All these drawn out what-if scenarios can be solved thusly:

Thunderdome.

  • | Post Points: 5
Top 25 Contributor
Male
Posts 3,592
Points 63,685
Sieben replied on Sat, Nov 28 2009 7:39 AM

David Z:
the principled approach suggests that the situation above would be unwarranted. Even though someone may be tried in absentia, and found "guilty", no man (or group of men under any color) would be rightfully permitted to invade the alleged thief's private property.  In practice, this means public ostracism and exercise of property rights to exclude the "guilty" individual.
Typically, private courts just added you to a blacklist if you didn't show up for trial or didn't cooperate. People on this blacklist would be left alone but couldn't use private courts.

So now showing up to court basically meant that anyone could kill you without retaliation.

Its all about being an entrepreneur. Sure there are problems with some business models for things like PDAs. But there's profit to be had at solving these problems. The free market contains many challenges but also brings with it the incentive to solve them.

Banned
  • | Post Points: 5
Top 50 Contributor
Male
Posts 2,551
Points 46,635
AJ replied on Sat, Nov 28 2009 9:06 AM

IMPORTANT: First of all, realize that everything anyone writes here can only ever be conjecture about how a society in anarchy (i.e., in the absence of a monopoly) may organize itself. Educated conjecture, but ultimately conjecture all the same because in anarchy there is no authority to ensure that any specific vision gets implemented.

Cortex:
In an AC society a person steals a thing on what grounds is his action illegal? He might reply:"Hey hey, I didn't agree with respecting your so-called property, I am convinced that property is a theft and that the thing is just as mine as yours and now you are pushing your political opinions on me." On what legal grounds is the right to private property applicable to all people?

The most common (basically, the Rothbardian) vision of AnCap is one of a monopolistic/monolithic legal system where all arbitration follows certain rules as laid out in such works as The Ethics of Liberty. Under that system, the law is the law, and that set of political ideologies will be apparently be pushed on you. In my opinion, the idea of a monolithic legal system makes no sense when there is no monopoly to enforce it. It may be that Rothbard's or Hoppe's or someone here's exact conception of PDAs, DROs, etc. is so brilliant and practical that it gets voluntarily adopted by so many in society that it becomes the standard, but no one can say for sure what will actually happen.

I suggest that a fully consistent anarchist position that rejects central planning and monopoly will view the anarcho-capitalist vision (or any other concrete vision in the absense of monopoly) as an educated conjecture as to how society would organize if there were no monopoly on force. As such, the AnCap answer would be that such a person would likely be forced into a system of private property law. This is backed up to a degree by observation and practicalities. However, there is no reason why certain groups couldn't have a communistic system among themselves if it didn't force others to participate in the sharing of property.

Re: civil vs. criminal law, I don't think this matters; it's just a naming classification. I am sure that indiscriminate killers would get more than just fines.

Cortex:
And so it goes on and on and the wallet changes its possessor until one of the gets tired of it, runs out of money or dies.

The usual AnCap answer to this (again, educated conjecture) is that the two established courts would have a third-party arbiter already designated in case of a dispute where the two courts could not come to an agreement, and that third party would have binding decision in such event. This sounds plausible to me, but it's not the only way it could work. The point here is simply to give one example of how it could work, to ease your incredulity about such a scenario. If we can think of an answer that easily, the free market can and probably will find some way that's even better.

  • | Post Points: 20
Top 25 Contributor
Male
Posts 4,850
Points 85,810

AJ:
The most common (basically, the Rothbardian) vision of AnCap is one of a monopolistic/monolithic legal system where all arbitration follows certain rules as laid out in such works as The Ethics of Liberty

Holy crap is that a strawman.

AJ:
Under that system, the law is the law, and that set of political ideologies will be apparently be pushed on you.

Two things:

1.) What else would the law be other then itself?

2.) What is this nonsense about 'pushing' laws onto people? Are you implying that a property owner has no right to establish laws in his/her given property?

AJ:
In my opinion, the idea of a monolithic legal system makes no sense when there is no monopoly to enforce it.

That makes no sense. You are postulating that Rothbard and Hoppe want a monopoly system of legal services, yet they obviously oppose the state and frankly call for the end of their coercive legal systems...if a institution is able to install a coercive monopoly on legal services in a given area then it is...a state. So  your premise is that Rothbard wanted to end the current state because of hatred for government only then to install another state to make sure the state doesn't come back and to provide a service on the free market no less?

AJ:
As such, the AnCap answer would be that such a person would likely be forced into a system of private property law

When the state legal system falls then private law is birthed into existence. We don't need to violently go around saying 'Hey follow private law legal systems' and such would be contradicting the very principle that libertarianism is founded upon.

AJ:
The usual AnCap answer to this (again, educated conjecture) is that the two established courts would have a third-party arbiter already designated in case of a dispute where the two courts could not come to an agreement, and that third party would have binding decision in such event

What happened to that monolithic/monopolistic legal system that Rothbardians supposedly want to setup? Now you are saying that two courts will submit their disputes to a third party [ obviously an organization that is separate from court A and court B for if court A, B, & C were all part of the same legal system why would there be a dispute over the ruling? ]

'Men do not change, they unmask themselves' - Germaine de Stael

 

  • | Post Points: 35
Top 500 Contributor
Male
Posts 318
Points 4,560
Wanderer replied on Sat, Nov 28 2009 2:03 PM

If someone does not show up to a court case, they will almost certainly lose.  Then, their guilty verdict will become public knowledge.  The guilty party would almost certainly lose their job, and find conducting business extremely difficult.

Periodically the tree of liberty must be watered with the blood of tyrants and patriots.

Thomas Jefferson

  • | Post Points: 5
Top 50 Contributor
Male
Posts 2,551
Points 46,635
AJ replied on Sat, Nov 28 2009 10:59 PM

Laughing Man:

AJ:
The most common (basically, the Rothbardian) vision of AnCap is one of a monopolistic/monolithic legal system where all arbitration follows certain rules as laid out in such works as The Ethics of Liberty

Holy crap is that a strawman.

Here is Rothbard: "...the basic Law Code...would have to be agreed upon by all judicial agencies..."  "Any agencies that transgressed the basic...code would be open outlaws and aggressors..."   (The Ethics of Liberty, p. 236-237)

Laughing Man:
You are postulating that Rothbard and Hoppe want a monopoly system of legal services, yet they obviously oppose the state and frankly call for the end of their coercive legal systems...if a institution is able to install a coercive monopoly on legal services in a given area then it is...a state.

Exactly. You've pointed out the flaw in Rothbard's position better that I could have.

Laughing Man:
We don't need to violently go around saying 'Hey follow private law legal systems' and such would be contradicting the very principle that libertarianism is founded upon.

We agree.

Laughing Man:
What happened to that monolithic/monopolistic legal system that Rothbardians supposedly want to setup? Now you are saying that two courts will submit their disputes to a third party [ obviously an organization that is separate from court A and court B for if court A, B, & C were all part of the same legal system why would there be a dispute over the ruling? ]

Then you do see the inherent contradiction in Rothbard's position.

  • | Post Points: 65
Top 50 Contributor
Posts 1,649
Points 28,420

If dealing with a problem properly achieves "monopoly status", I am all for it.

If we can agree that X is wrong, it does not necessitate that Z aggressor will in practice be considered an "outlaw". This word means to me that they are being actively pursued as a criminal. Perhaps no judicial company would care to investigate neighbors traipsing across each others' grass besides to issue minor monetary fines, unless one claimant wishes to absorb the cost of investigation.

Democracy means the opportunity to be everyone's slave.—Karl Kraus.

  • | Post Points: 20
Top 10 Contributor
Posts 7,105
Points 115,240
ForumsAdministrator
Moderator
SystemAdministrator

AJ:
Then you do see the inherent contradiction in Rothbard's position.

there is no contradiction.

in a world in which there are good mathematicians who can add up and bad mathematicians that can't.

even with a decentralized order, involving no monopoly licenser of mathematicians, no monopoly 'regulator of mathematical activities',. there would still be good mathematicians, and poor ones.

Where there is no property there is no justice; a proposition as certain as any demonstration in Euclid

Fools! not to see that what they madly desire would be a calamity to them as no hands but their own could bring

  • | Post Points: 20
Top 25 Contributor
Male
Posts 4,914
Points 70,630

Laughing Man:

AJ:
The most common (basically, the Rothbardian) vision of AnCap is one of a monopolistic/monolithic legal system where all arbitration follows certain rules as laid out in such works as The Ethics of Liberty

Holy crap is that a strawman.

yeah, AJ needs to quit lying.  It's getting old that he brings this up due to his monopoly agenda.  But yet again, now that I think about it, what would be wrong with a just PDA having a dominant part of the free market - which still wouldn't be a monopoly.  AJ, I think you need to understand free market dynamics more.

1.  Rothbard later pointed out that he is not talking about a monopoly in that quote AJ gave.

2.  Secondly Rothbard and Hoppe both advocate security being bought and sold on the free market.

3.  Thirdly, AJ is talking about a utopia and I know of no realist that believes in a utopia.

"Do not put out the fire of the spirit." 1The 5:19
  • | Post Points: 5
Top 25 Contributor
Male
Posts 4,914
Points 70,630

E. R. Olovetto:

If dealing with a problem properly achieves "monopoly status", I am all for it.

That's an interesting point.  Are we to stop justice from becoming so wide-spread that we are to help support criminal entities to break the growing just monopoly by giving these criminals subsidies, maybe a bailout?  Maybe a monopoly on private property by an owner is to be called tyranny and some third party will need to come in and divide up the property to other people for the 'common good' - make it polycentric or something?

"Do not put out the fire of the spirit." 1The 5:19
  • | Post Points: 5
Top 25 Contributor
Posts 3,011
Points 47,070

AJ:
Here is Rothbard: "...the basic Law Code...would have to be agreed upon by all judicial agencies..."  "Any agencies that transgressed the basic...code would be open outlaws and aggressors..."   (The Ethics of Liberty, p. 236-237)
Yes, and that's simply agreeing to grundnorms, from what I see. That is: a set of standards, much like there's a standard concept of the car (it has wheels, an engine, etc). I don't see that Rothbard denies that there would be variations upon the theme.

  • | Post Points: 20
Top 50 Contributor
Male
Posts 2,551
Points 46,635
AJ replied on Sun, Nov 29 2009 8:34 AM

Edit: This is addressing Nir

That would make sense if Rothbard were merely saying which legal agencies are "good" and which are "poor" (or perhaps more relevantly, profitable vs. unprofitable or popular vs. unpopular). But he in fact says that the basic law code would have to be agreed upon by all legal agencies, and by "the basic law code" it seems he means his specific conception of the NAP, etc.

But rather than guess at what he means in a specific passage, I would simply ask, Why go through the trouble to specify all sorts of details about homesteading, the NAP, rights, ethics, etc. if private legal agencies are just going to decide the law anyway? I can think of three answers:

  1. To answer critics who say anarchy could never work, by giving such critics a plausible scenario with many details worked out. (This one makes good sense.)
  2. To serve as advice for entrepreneurs setting up PDAs and as a guide for law consumers in AnCap. (Makes sense but seems a little premature.)
  3. To decree how the law must be. (This would either be authoritarian/Statist, or contradictory and pointless because only a monopoly could enforce such a decree.)

The issue I mean to raise here is not that such theories (rights, ethics, NAP, homesteading, etc.) are misguided, but that they appear to be limited to applications #1 and #2 above. I suggest that to put forth such theories with the intent that they effectively serve as a decree for all to follow is stay stuck in the monopoly/Statist paradigm, because only a monopoly could enforce such a decree.

Note: This is not to say that Rothbard's ideas won't be adopted as the universal standard owing to their shear insightfulness and fairness. That could indeed happen, but I am saying that would not happen through decree (unless in a minarchy). In anarchy, it would happen because legal agencies and the general population liked Rothbard's suggestions.

  • | Post Points: 50
Top 25 Contributor
Male
Posts 4,914
Points 70,630

AJ:

That would make sense if Rothbard were merely saying which legal agencies are "good" and which are "poor" (or perhaps more relevantly, profitable vs. unprofitable or popular vs. unpopular).

I stopped right there cause all of the books and articles I've read of Rothbard include defining what a criminal is, what is just, and how the free market can include entities that offer security.  Stop lying.

On my property I want to be the just ultimate-decision maker.  It MUST be that way.  It HAS to be that way.  Because I want it to be that way because I am totally convinced that justice is the ONLY way.

MUST

HAS

ONLY

"Do not put out the fire of the spirit." 1The 5:19
  • | Post Points: 5
Top 50 Contributor
Male
Posts 2,551
Points 46,635
AJ replied on Sun, Nov 29 2009 8:43 AM

Knight_of_BAAWA:
AJ:
Here is Rothbard: "...the basic Law Code...would have to be agreed upon by all judicial agencies..."  "Any agencies that transgressed the basic...code would be open outlaws and aggressors..."   (The Ethics of Liberty, p. 236-237)

Yes, and that's simply agreeing to grundnorms, from what I see. That is: a set of standards, much like there's a standard concept of the car (it has wheels, an engine, etc). I don't see that Rothbard denies that there would be variations upon the theme.

If that is so, I don't see a problem. In fact, I think Rothbard presents a fine set of grundnorms if that's what he means for them to be.

  • | Post Points: 5
Top 25 Contributor
Male
Posts 4,914
Points 70,630

AJ:

The issue I mean to raise here is not that such theories (rights, ethics, NAP, homesteading, etc.) are misguided, but that they appear to be limited to applications #1 and #2 above. I suggest that to put forth such theories with the intent that they effectively serve as a decree for all to follow is stay stuck in the monopoly/Statist paradigm, because only a monopoly could enforce such a decree.

When the criminal entities are having a tough time in my neighborhood, if a person comes to subsidize their lack of fitting into the local community DECREE in order to make it polycentric, then I would consider such a person as aiding and abbetting the criminal(s).  Now you are defending this proposition quite possibly.

edit:  Now - I know you don't mean any of this that I've covered in recent posts but for those that understand what Rothbard and Hoppe mean this is exactly how you come across to me, and I don't doubt others would think the same way.

"Do not put out the fire of the spirit." 1The 5:19
  • | Post Points: 20
Top 50 Contributor
Male
Posts 2,551
Points 46,635
AJ replied on Sun, Nov 29 2009 8:59 AM

Wilderness,

Maybe I do come across that way because I haven't been careful to clarify what I don't mean, but I do not think anything I've said necessitates that position. I personally think the legal system could well look a lot like - or even almost exactly like - the one Rothbard envisioned.

The point I wish to make is simply that such visions seem most properly understood as educated conjecture, and to take them as something more is unhelpful in achieving such society or convincing others of its merits.

  • | Post Points: 20
Top 25 Contributor
Male
Posts 4,914
Points 70,630

AJ:

The point I wish to make is simply that such visions seem most properly understood as educated conjecture, and to take them as something more is unhelpful in achieving such society or convincing others of its merits.

It's not a reality now so it's obviously a conjecture.  Foresight is cultivated in such low-time preference activities that include studying, researching, writing books, and investing in iron for steel to make a rod for a house that will be built down the street in two years.  Conjecture grounded in logic as opposed to illogic are very different forms of conjecture.

"Do not put out the fire of the spirit." 1The 5:19
  • | Post Points: 20
Top 50 Contributor
Male
Posts 2,551
Points 46,635
AJ replied on Sun, Nov 29 2009 9:14 AM

Then perhaps we're all in agreement after all.

  • | Post Points: 5
Top 50 Contributor
Male
Posts 2,940
Points 49,115
Conza88 replied on Sun, Nov 29 2009 10:36 AM

AJ:
if private legal agencies are just going to decide the law anyway?

What type of law are they deciding?

Legal and defacto rights.

If they contradict normative ones / natural rights, i.e violate the NAP, then they become aggressors and criminal.

More to the point, and I asked this elsewhere:

Why on earth would two people who have a property dispute, or their respective DRO's - choose to use a third party DRO that does not protect property rights? It is absurd.

Ron Paul is for self-government when compared to the Constitution. He's an anarcho-capitalist. Proof.
  • | Post Points: 35
Top 75 Contributor
Posts 1,205
Points 20,670
JAlanKatz replied on Sun, Nov 29 2009 10:54 AM

Regarding warfare:

First, it does no good to compare anarcho-capitalism to utopia.  Instead, compare it to the statist system.  Even if you think anarcho-capitalism can lead to these kinds of wars between protection companies, statism can lead to wars between states.  By necessity, the wars of the protection companies will be smaller and do less damage.

Meanwhile, though, in an-cap, people know that these things can happen.  When they sign up with their company, they ask what will happen in such a situation, and companies that cannot provide an answer don't get many customers.  Some will answer "we'll go fight the other company" and will have very high premiums.  Others will give more reasonable answers, like "we have made arrangements with these 4 other companies that in case of dispute, we appeal to____ (some mutually agreed arbitrator, and with these 3 companies, we appeal to ______.  There is one company that's a little nuts, and won't make any arrangements with us for such cases, instead, it says it will shoot it out with any company that disagrees with it.  We stay away from them, and we don't hear cases involving their clients, we expect them to go out of business pretty soon since their premiums are so high." 

Or something else.  As Bacon put it, if you go back to an age before bombs and explain the destruction that bombs will someday wreak, they'll try to figure out how it work - picturing bigger and bigger catapults and the like, since that's how they conceptualize weapons.

  • | Post Points: 20
Top 50 Contributor
Posts 1,649
Points 28,420

People, please read David Friedman's Police, Courts & Laws: On the Market.

Democracy means the opportunity to be everyone's slave.—Karl Kraus.

  • | Post Points: 5
Top 50 Contributor
Male
Posts 2,551
Points 46,635
AJ replied on Sun, Nov 29 2009 11:59 AM

Conza88:

AJ:
if private legal agencies are just going to decide the law anyway?

What type of law are they deciding?

Legal and defacto rights.

If they contradict normative ones / natural rights, i.e violate the NAP, then they become aggressors and criminal.

This is educated conjecture, right?

Conza88:
Why on earth would two people who have a property dispute, or their respective DRO's - choose to use a third party DRO that does not protect property rights?

What each side considers valid property rights may differ.

  • | Post Points: 5
Top 150 Contributor
Posts 634
Points 12,685

Conza88:

What type of law are they deciding?

.......

If they contradict normative ones / natural rights, i.e violate the NAP, then they become aggressors and criminal.

More to the point, and I asked this elsewhere:

Why on earth would two people who have a property dispute, or their respective DRO's - choose to use a third party DRO that does not protect property rights? It is absurd.

Conza88:

I believe you are stating the situation that AJ was trying to address originally.  First you ask "What type of law are they deciding?   And then you answer your own question, apparently not only for yourself, but for every single person on earth: "If they contradict..natural rights, i.e., violate the NAP, then they become aggressors and criminal."

What you are saying is that any legal agency will, in your view, be enforcing a specific legal theory of natural rights.  You are saying that enforcement agencies won't be enforcing any other legal theories than the specific natural rights legal theory you have in mind.   Or if this is not what you meant, please clarify.  Do you mean poly-centric law, where there are different legal codes in existence, or do you mean a system where there is only one legal code being enforced?

Here is what JackSakylark wrote on this subject (Nov. 1 & Nov.2):

"Even Rothbard favored a monolithic legal code, which is a monopoly of law.  It is [in] the provision of law services that competition comes into play in anarcho-capitalist society."  (bold & italics added)

This is exactly what Rothbard is saying on page 236 of The Ethics of Liberty.   The provision of legal services can grow by the market process.  This is the "anarcho" part.  Various companies can open and close, and customers can patronize various providers. 

Skylark continues:

"Rothbard advocated a monopoloy on law, not legal services.  He got away with not calling it a monopoly by determining natural law as somewhat 'self-evident.'  Rothbard then claims that natural law must be determined (monolitically) as the basis for 'fair' rulings if ancap is to be viable.   Thus, he proposes a standard legal code.  From the legal code comes competition in services."

This is very clearly what Rothbard is advocating on pages 189, 236, and 237 of The Ethics of Liberty

It is a vision that pre-supposes a specific natural rights legal code (roughly the one outlined in The Ethics of Liberty), and envisions that multiple providers will arise within this specific natural-rights capitalistic structure to administer this legal code.  But the legal code is conceived as (as Skylark rightly points out) monolithic, i.e., monopolistic.

You ask:

"Why on earth would two people who have a property dispute, or their respective DRO's - choose to use a third party DRO that does not protect property rights? It is absurd."

This assumes that what property rights are and what constitutes aggression is clear and unanimously agreed upon.  This is far from the case.

Consider intellectual property.  In Randian property rights theory, one is an aggressor if one violates a copyright or patent.   In Rothbardian property rights theory, one is an aggressor if one violates a copyright, but not if one violates a patent.  And in contemporary property rights theory as supported (I believe) by Tucker, Kinsella, and Hoppe, one is not an aggressor if one violates a copyright or a patent.

So here you have three distinct property rights theories, each defining aggression differently with respect to intellectual property.

Rothbardian anarcho-capitalism assumes that only one of these legal codes is in effect, and that those who violate the legal code are open outlaws and aggressors.   But this doesn't answer the question of which legal code is to be enforced by all the various agencies and protection services.

Rand, Rothbard, Tucker, Kinsella, etc., are all libertarians, in the sense that they all agree with some version of the libertarian ethic against initiating aggression.  But they define what constitutes aggression differently.  Thus, it doesn't solve the problem to just say that the legal code outlaws aggression and protects property.  What constitutes aggression and what constitutes property is the very issue at stake.

As Skylark points out, Rothbard simply assumes or presupposes that a uniform legal code is in effect.  He's thinking of his own vision of libertarian law.  But that vision is far from agreed upon.  It is one vision of many.

I believe it is much more accurate to refer to Rothbard's anarcho-capitalism as "natural rights capitalism."   Rothbard's vision is of a capitalistic system of private property, where what constitutes property and aggression is to be determined by his specific version of natural rights, outlined in his books.  In The Ethics of Liberty, Rothbard sketches the rough outlines of a libertarian legal code (property and criminality, ownership and aggression, theory of contracts, children and rights, etc...)     What it means to be a Rothbardian, is that one accepts this legal code in principle, and/or in its particulars. This means to some extent that one is willing to accept a particular theory of what constitutes aggression and what constitutes property.  In accepting this particular theory, one is accepting a legal code.   But the question is, what happens in the case when someone chooses a Randian or Kinsella/Tucker/Hoppe legal code as the basis for defining what constitutes aggression?

That is the important question.

What non-Rothbardians are trying to point out is that various libertarians can disagree about what constitutes aggression and property.  And in so doing, each thinker is accepting or adhering to a different legal code.  (this is without even considering all the other cultures and possible legal codes outside the very small libertarian world)

Usually, when anarcho-capitalism is discussed on this forum, those advocating it are assuming or presupposing a single, monolithic legal code that is in effect for all of society.  They seem to take it for granted that their own view of property and aggression is the correct one.  But the Randians and the Kinsellians believe that their view of property and aggression is the correct one.  If libertarianism is to be conceived as a monopolistic legal code enforced on all people by various market providers, the question of which legal code is to be enforced is an important one that can't be ignored.

 

 

 

 

 

"It would be preposterous to assert apodictically that science will never succeed in developing a praxeological aprioristic doctrine of political organization..." (Mises, UF, p.98)

  • | Post Points: 50
Top 50 Contributor
Posts 1,649
Points 28,420

Adam Knott:
What non-Rothbardians are trying to point out is that various libertarians can disagree about what constitutes aggression and property.  And in so doing, each thinker is accepting or adhering to a different legal code.  (this is without even considering all the other cultures and possible legal codes outside the very small libertarian world)

Usually, when anarcho-capitalism is discussed on this forum, those advocating it are assuming or presupposing a single, monolithic legal code that is in effect for all of society.  They seem to take it for granted that their own view of property and aggression is the correct one.  But the Randians and the Kinsellians believe that their view of property and aggression is the correct one.  If libertarianism is to be conceived as a monopolistic legal code enforced on all people by various market providers, the question of which legal code is to be enforced is an important one that can't be ignored.

Rand and Rothbard are wrong on IP, or I could say that their takes on IP do not follow from the NAP. So, these folks are "Libertarian" still, but their prescriptions regarding IP don't conform to guidelines we would get as part of actual 'libertarian law'. Maybe some of what I have written before will help explain this silly Rothbard quote that so many are still hung up on.

me:

filc: "The loophole here is, while it's great that you signed up with PDA_A in which you agree to not have any domestic violence within your premise. This neighber could decide not to hire that PDA or hire a different PDA that turns a blind eye to such activity. Now this may not be the case in all situations."

This is a genuine problem for any justice system, anarchic or not. Among people there is a fair consensus that [crimes like child molestation or murder or theft are] wrong, to the point of making disagreements on its criminality almost a non-issue. For more divisive topics like abortion or capital punishment, we're left with an even more pressing need to complete the task below and a few categories of possibly outcome

We must determine and agree upon, as libertarians, the universal indicia of our legal philosophy. In other words, we use logic to decide upon an aspect of the philosophy that [an issue] is clearly wrong and use proportionality to help determine what the maximum punishment ought to be with regards to the details of the crime. Of course, these are mere guidelines, and whatever arbitration systems that actually come about will at times have differences based on economic factors and/or cultural mores. 

Then understanding this eventuality, we can observe some scenarios play out:

  • The relevant guidelines are followed throughout whatever chain of arbitration. The two parties are either clients of the same justice agency, two justice agencies with preexisting agreements, or are able to agree upon a chain of arbitration after a claim has been made.
  • as above, except guidelines are not followed fully. A libertarian arbiter will view the actions taken as an injustice, but all involved agreed to what took place. No libertarian PDA would thusly take action against the parties or arbiter because of the corollary of 'rights of free association'.
  • Guidelines are followed, but arbitration and enforcement occurs when one party refuses to agree to any chain of arbitration whatsoever, both parties suggest sets of arbiters that don't match up, or an agreement is reached and justice rendered but one party later objects to the decision. In these cases, we may believe we're right and win or lose in any violence or negotiation afterward.
  • as above, but guidelines are not followed fully. In the former we defend justice and in the latter we seek it out.
  • An injustice may occur and whatever arbiter simply won't take action at that time.

 

Democracy means the opportunity to be everyone's slave.—Karl Kraus.

  • | Post Points: 20
Top 150 Contributor
Posts 752
Points 16,735
Sage replied on Sun, Nov 29 2009 2:16 PM

Adam Knott:
Usually, when anarcho-capitalism is discussed on this forum, those advocating it are assuming or presupposing a single, monolithic legal code that is in effect for all of society.

This may have been Rothbard's view, but my understanding of market anarchism is that market competition in legal systems will tend to produce laws that approximate natural law, not that natural law is somehow magically enforced on society. The purpose of natural law is not to protect rights, but to guide us in protecting rights.

Adam Knott:
They seem to take it for granted that their own view of property and aggression is the correct one.  But the Randians and the Kinsellians believe that their view of property and aggression is the correct one.  If libertarianism is to be conceived as a monopolistic legal code enforced on all people by various market providers, the question of which legal code is to be enforced is an important one that can't be ignored.

Very true. An important argument for anarchy is that, given that both government and anarchy will have different parties trying to enact their particular conceptions of justice, there will inevitably be disputes, and anarchy does a better job in resolving these disputes peacefully and in a manner favorable to liberty.

But are you suggesting that disputes over property and aggression can never be resolved? If so, why?

 

AnalyticalAnarchism.net - The Positive Political Economy of Anarchism

  • | Post Points: 35
Top 150 Contributor
Posts 634
Points 12,685

E. R. Olovetto:

We must determine and agree upon, as libertarians, the universal indicia of our legal philosophy. In other words, we use logic to decide upon an aspect of the philosophy that [an issue] is clearly wrong and use proportionality to help determine what the maximum punishment ought to be with regards to the details of the crime. Of course, these are mere guidelines, and whatever arbitration systems that actually come about will at times have differences based on economic factors and/or cultural mores

 

Olovetto:

OK  Then yours is a fairly tolerant vision of AnCap, where the legal code is a guideline, and where outcomes may be the result of various cultural mores.

In that case, I consider your legal and social philosophy to be part of a growing and emerging libertarian consensus, and a move away from the standard monopolistic and absolutist libertarian conception which predominated in the second half of the twentieth century...

 

"It would be preposterous to assert apodictically that science will never succeed in developing a praxeological aprioristic doctrine of political organization..." (Mises, UF, p.98)

  • | Post Points: 5
Top 150 Contributor
Posts 634
Points 12,685

Sage:

This may have been Rothbard's view, but my understanding of market anarchism is that market competition in legal systems will tend to produce laws that approximate natural law, not that natural law is somehow magically enforced on society. The purpose of natural law is not to protect rights, but to guide us in protecting rights.

Adam Knott:
They seem to take it for granted that their own view of property and aggression is the correct one.  But the Randians and the Kinsellians believe that their view of property and aggression is the correct one.  If libertarianism is to be conceived as a monopolistic legal code enforced on all people by various market providers, the question of which legal code is to be enforced is an important one that can't be ignored.

Very true. An important argument for anarchy is that, given that both government and anarchy will have different parties trying to enact their particular conceptions of justice, there will inevitably be disputes, and anarchy does a better job in resolving these disputes peacefully and in a manner favorable to liberty.

But are you suggesting that disputes over property and aggression can never be resolved? If so, why?

Sage:

"...market competition in legal systems..."

Fair enough.  But this the complete opposite of Rothbardian anarcho-capitalism.   In your sentence here, substitute "legal codes" for "legal systems."

Your vision of AnCap includes various legal systems, whereas in Rothbardian AnCap, all but one legal system is an "open outlaw and aggressor."

When you write:  "This may have been Rothbard's view..."  This is subjectivism; the idea that Rothbard's legal conceptions were OK for him, but not necessarily for you or others.   This then implies that legal codes are subjective to the individual or group concerned.....  This is more of a Misesian conception than a Rothbardian conception.  I'm not saying I disagree, but this is what your statements imply to me.

"...anarchy will have different parties trying to enact their particular conceptions of justice..."

This seems to be a poly-centric vision.   In my view, this is moving away from a monolithic or monopolistic legal system with multiple private providers administering the same legal code---what I referred to as natural rights capitalism....

"But are you suggesting that disputes over property and aggression can never be resolved?"

No, that isn't my point.

My point is that there is a huge difference between a conception of libertarianism where there is a single monolithic legal code and where multiple private providers may compete to administer this monolithic legal code.....and, a conception of libertarianism that allows for or envisions the idea of multiple legal codes, and an assumed mediation between various legal codes, societies, associations, cultures, etc...

What I'm getting from this discussion, and from other discussions surrounding AnCap, is that this latter idea seems to be gradually replacing the older idea.  This older idea was the Randian/Rothbardian conception of libertarianism.

I think what is causing some confusion and perhaps needless debate, is that when AnCap is being discussed, it isn't always explicitly stated which version of AnCap is being advanced:  a single legal code with multiple private administrators, or, various legal codes existing and mediation between those....

The former is the pure Rothbardian libertarian conception from TEoL.   The latter is something different.  It lacks an absolute monopoly on law, and it lacks ethical and moral absolutism in the Randian/Rothbardian sense, to the extent it envisions mediation between various legal cultures. 

If we take away the idea of territorial monopoly of law, we are essentially heading towards a panarchist conception.

 

 

"It would be preposterous to assert apodictically that science will never succeed in developing a praxeological aprioristic doctrine of political organization..." (Mises, UF, p.98)

  • | Post Points: 35
Page 1 of 7 (244 items) 1 2 3 4 5 Next > ... Last » | RSS