What Law Is

trulib:

ClaytonB:

At some point in human history, the State took an interest in monopolizing the courts. The fundamental exchange is the same as that described by Hoppe regarding the monopolization of intellectuals. The State grants its preferred jurists a monopoly on the production of dispute-resolution services in exchange for the courts’ loyalty in disputes involving the State itself.

Using Hoppe's definition of the State, your first sentence here makes no sense.  This organization that took an interest in monopolizing the courts was not a State until it accomplished this.  Before then, it was a "pre-State", which is really just a gang of thieves with ambition to become a State.  The alliance with the intellectuals may occur before the State is established.  What is certain is that the State needs the intellectuals to maintain that status, lest it become apparent that they are really just a highly-organized gang of thieves.

Good catch, I got the cart before the horse. I suppose you could say the State was born when the first thug threatened to kill the arbitrator if he did not rule in the thug's favor.

ClaytonB:

The state guards its monopoly on dispute-resolution as jealously as it guards its monopoly on the use of force or its monopoly on the coercive collection of revenues.

The State does not have a monopoly on force per se but it has a monopoly on deciding when and what force is jusified/legal/legitimate; this is simply a re-statement of the State's monopoly on dispute-resolution.  This monopoly is possible only because the majority of the population accept that the State is the only organization which should make this decision - i.e. that any other organization declaring when and what force is legitimate, and carrying out force outlawed by the government, is criminal, whereas the State is sovereign.

True. I agree with Hoppe's primary emphasis on the monopoly on law as the defining feature of the State. I have noticed that Rothbard tended to emphasize the State's territorial monopoly on use of (legitimate) force. Either way, law and security are integrally related as I noted. I believe the primary task in destroying the State is to attack the monopoly on law because the monopoly on force falls automatically if you destroy the monopoly on law and it's much harder to argue for a monopoly on law than for a monopoly on force... even the Hobbesian myth can't get you from state of nature to "you must only ever bring your disputes to the territorial monopolist of law." The Hobbesian myth works, no matter how mythical it is, but it only works for justifying the State's monopoly on legitimate force. So, we should just do an end run around Hobbes.

ClaytonB:

Hoppe’s argument suggests that there are two conditions for the existence of interpersonal conflict: more than one person and scarcity. There seems to be many forms of conflict which do not originate from scarcity, such as debates over metaphysics or religion, which may even go to fists. However, law is concerned only with real (physical) conflicts. Until a verbal argument goes to fists, it is not a real conflict. Law, in a private law society, is not concerned with resolving moral or metaphysical disputes.

I see no particular reason why law should be unconcerned by verbal disputes about metaphysics or religion.  It is not inconceivable.  Slander is a law forbidding certain verbal acts.  There are good reasons to believe slander would not likely be a law in a private law society, but it just might.

I guess I'm conflating a descriptive and normative theory of law, here (and elsewhere). Perhaps I need to untangle those components.

It is possible for disputes to arise for many reasons not related to a property conflict. Cheating is a good example... a woman cheats on her husband so he kills the man she cheated with, that is, a dispute arose between the two men. Nevertheless, there was no property conflict. This seems to contradict Hoppe's Garden of Theory analysis.

What I say about you (slander) or what I do with your wife (cheating, so long as it didn't occur on your property) cannot be property conflicts yet many disputes arise over exactly these sorts of issues. Hoppe says somewhere (can't remember where) that gratuitous, anti-libertarian laws (such as laws against sodomy in your own home, etc.) could exist in a private law society so long as the members of that society were willing to pay the costs of implementing such laws. Perhaps in the case of slander, cheating and other disputes that are not property conflicts, there is some other variable involved... i.e. the psychological suffering of being verbally degraded, or sexually humiliated.

I'll have to think about this some more because I think there's something more basic than just "the law can be whatever people are willing to pay for" because law is the alternative to martial contests. In the case of a dispute arising between a cheated husband and the adulterer, the motives of the dispute are inconsequential to the analysis of the mechanics of the dispute itself. Let me think about this point some more.

I don't see why a Christian sect couldn't live under a law system where uttering the words "God doesn't exist" is, in itself, a crime, if that's their preference.  This is not to say however that law relates to more than "physical" conflicts, because a "verbal" conflict could be thought of as a "physical" conflict.  It all depends where property boundaries are drawn.  The Christian considers the entrance of a pattern of sounds into his eardrum as the same kind of violation of his boundaries as a knife being stabbed into his hand.  So the dispute between the atheist and the Christian is a "physical" violation, when boundaries are drawn in this way.

Yes, physical objects are entangled but I think the key issue is that in the case of a dispute between two acting human beings, neither has a case for restricting the other's ability to act, so that, your threat of violence against me (whether directly or through an intermediary such as a court) for moving my vocal cords in a certain pattern also constitutes a property conflict. Hence, conflicts over speech patterns are essentially tied - I modified the air entering your eardrums without your consent but the alternative is for you to proscribe certain movements of my vocal cords, which is equally intrusive of my body.

ClaytonB:

As an example of a real dispute, consider the case of a traffic accident.

What makes this a "real" dispute?  Can you give an example of a dispute which is "not real"?

Well, I think this goes to my confusion of the descriptive and normative components of law, which you pointed out above. I'm basically sweeping away all the complexities of disputes which arise over things that are not scarce (and, therefore, cannot be property) by ignoring them as "unreal". So, disputes over slander and cheating would not constitute real disputes since they are not property disputes. I want to think through this issue some more since I think there is something more to be said on it.

ClaytonB:

I will provide a working definition of property but I will not attempt to justify my definition here. Stephan Kinsella, in an article discussing the difference between intellectual property and radio waves, says the following:

… every scarce resource–things that can be contested; rivalrous things; resources that have exclusive use, so that use by me excludes use by you, and so on–is assigned an owner; that owner is the person who first appropriated or used the property in an embordering way–that is as an owner. It’s the first person to erect publicly visible boundaries that others can respect and see; he has a better claim to the resource than any latecomer.

In this first sentence, Kinsella jumps from a useful general definition of property, over to asserting his preference for how property should be assigned, i.e. which claims in a dispute he considers are valid and which are not.  His preference, of course, is for libertarian principles to be used to settle disputes.  But the libertarian principle of homesteading/embordering ("first use") is only one way of determining who should be the "first owner".  For example a law may assert that a certain class of goods - like heroin - always belongs to a particular organization (like the State), as soon as it comes into existence.  Perhaps this sort of rule for determining "first owner" is unlikely to come about in private law, and its certainly repulsive to a libertarian, but such a principle of law is conceivable.

Agreed. In this article, I didn't want to go over every piece of foundation which has already been well-laid by Rothbard, Hoppe and others justifying the Austrian treatment of property. I'm saying, "let's assume that everybody agrees with a roughly libertarian definition of property." For the sake of simplicity, assume that when disputes arise, they are not about what property is, they are over who the rightful owner of the property is. There are no tricky Marxists trying to redefine property.

ClaytonB:

Any property must be physical because non-physical objects are not scarce (real conflicts cannot arise). Property is not necessarily tangible. In other words, you can own physical matter (dirt, water, rocks, paper, etc.) or energy (for example, electrical energy) but you cannot own ideas or patterns, such as a number or an image. Property is the exclusive claim to the use and disposal of a particular, scarce, physical object, defined in space and time. You cannot own a general class of physical objects, such as, “I own all ceramic dinner plates.” You may happen to own all members of a class of physical objects, such as, “I own all of Rembrandt’s self-portraits”, but you cannot own them as a class qua class, that is, you cannot claim, “Because that is a self-portrait of Rembrandt, I own it.” Because classes are ideas and ideas are not scarce, so-called “intellectual property” is not property at all. Intellectual property is an invalid claim of ownership of a class of physical objects, for example, all objects bearing a certain mark or conforming to a certain pattern.

All this is true in a libertarian framework, but not when the concept of property is considered more generally.  Laws assigning ownership of classes of goods, including intellectual property, are conceivable and there is no a priori reason why such laws could not exist in private law.  (There are a great number of practical and economic reasons to think IP in private law is unlikely or even impossible).  Why could a law that all ceramic dinner plates belong to X not conceivably exist in private law?

I'm assuming it away by saying, "let's just imagine a world where everybody roughly agrees with a libertarian definition of property." Of course, the rent-dodgers have a motivation to challenge the definition of property, but I think that muddies the waters of discussing what law is, assuming we can know what property, roughly, is. What I want to assert is: Law is the alternative to martial contest in disputes over control of scarce resources when dispute-avoidance strategies have failed to prevent dispute. This is an idealization and I don't know how I can justify that idealization without taking a libertarian theory of property for granted.

ClaytonB:

I can give no good reason why I have rights to exclusive use of some portion of the Moon or a portion of Marie Byrd Land. So, no portion of the moon or Marie Byrd Land is my property.

The issue of who owns the moon is irrelevant of course until a dispute over it's use arises.  You could assert a claim on the moon, and then take NASA to court for trespassing.  Who knows what rule the court will uphold?  A libertarian court would obviously say your claim is not legitimate and NASA's claim is.  But a non-libertarian court may rule the other way.  If the general view of society is that your claim is stronger (maybe you are well-known and recognized as "Clayton, God of the Moon"), a court may uphold your claim.  Why not?

Yes, some court might uphold that claim but the real issue is whether any court can help us settle our dispute without further resort to violence.

ClaytonB:

Property conflicts arise as a result of unilateral changes of property boundaries.

Correct.

ClaytonB:

Conflicts also arise as a result of threats, even threats which are not malicious. Presenting risks to the lives and property of others is a threat of unilateral property line redrawing. The pugnacious bar brawler who starts waving his fist in someone’s face is also threatening unilateral redrawing of a property line. Threats are as actionable as completed acts of unilateral property line redrawing.

Do you mean to say that threats are not a "property conflict" (i.e. they are not a unilateral change of property boundaries) in themselves?  I would disagree with this.  I would say threats are a property conflict in themselves, e.g. a bar brawler shaking his fists at me is, in itself, a unilateral change of property boundaries.  There is no necessary distinction between threats and "actual acts" of violence; risk doesn't come into it.  It all depends how property boundaries are drawn as to whether any particular shaking of fists is sufficient for a court to consider it a property violation.

No, I don't agree. If I leave a message on your answering machine to the effect, "I will blow up your house one week from now", no property boundaries have been changed because vocal patterns on a tape are not property (my denial of IP above) and that is the only physical effect of my threat. If we follow the Hoppean principle that there is no property without scarcity (since conflicts cannot arise without scarcity), then some scarce resource (not just patterns) has to be really altered in order for property boundaries to be moved. The difference with threats and completed acts of violence is time. Threats are indications of future violence. Completed acts of violence are past, they are part of the historical record.

Friedman uses the example of a million-chamber revolver in a game of Russian roulette where I spin the cylinder and point the gun at you - do I have the right to play such a game? Does it really matter how many chambers there are in the revolver? Yet, if I fly an airplane over your house, Friedman argues, I have put your life in danger to some non-zero extent, maybe less than 1 in a million chance of death, but still not zero. How can I have any more right to put you at risk by flying a plane over your head than I do to put a bullet in a million-chamber revolver, point it at your head and pull the trigger? I would not characterize flying a plane over your head as anything other than being the cause of risk to your property (person). No property transfer or unilateral redrawing of boundaries has occurred but there is a chance that they could be redrawn. As with the issue of justifiable violence, I think that latent in the libertarian conception of property is the idea of justifiable risk. There are some risks which I can justify causing to your property and other risks which are unjustifiable. The concrete meaning of this is that you likely could not justify (in a court in a private law society) shooting me down with an RPG for flying a plane over your head (at a normal altitude) but you could justify shooting me if I pointed a million-chamber revolver at your head, with only one bullet in the gun. What the precise difference between these two is, I don't know, and that's where I think we have to go back to the idea that the role of experts in law, as part of the division of labor, is to tease out these pedantic distinctions and derive explanations for why we (humans) see one kind of risk as justifiable but not another. This is Rothbard's "jurist as scientist" idea which knocked my socks off the first time I read it.

ClaytonB:

Alpha male behavior can likely be thought of as a conflict-avoidance scheme where most serious conflicts only occur with the alpha male instead of being all-against-all. Only a single contest is required to settle the matter of who will have the benefits of being the alpha male for long stretches of time.

Great insight.

ClaytonB:

Friedman presents the case that anarchic law leads to the best or most efficient outcome for society. That is, Friedman is arguing from the point of view of social justice or social welfare. But this approach assumes that the individual cares about social welfare.

This does not follow.  Friedman writes to try and convince people that anarchic law is a good idea, and chooses to promote the idea by referring to social justice and social welfare.  He assumes his reader cares about these things, so that they will support the idea.  He does not assume that when the idea is implemented, it requires disputants to care about these things.  In Friedman's model, disputants are choosing to use courts out of self-interest.

Well, I take exception to this interpretation for two reasons. First, Friedman says that he chooses the utilitarian approach because he believes we know a lot more about what to expect from certain rule systems (i.e. outcomes) than we know about moral philosophy (specifically, rights, natural rights, etc.) Second, Friedman nowhere that I can find discusses the issue of whether courts are consulted on a purely voluntary basis and many of the discussions he has (such as what the "efficient" fine schedule for speeding is) seem to presuppose a coercive/monopolist court. Perhaps I'm just reading him wrong.

In any case, my characterization of law as an alternative to martial contest is not inconsistent with any of Rothbard, Hoppe, Friedman etc. I just haven't found any place where they describe the law in this way and I think that this is, at least, an important oversight since if law is characterized as an alternative to something worse (martial contest), then any sort of violence which is stipulated as part of an agreement is an example of revealed preference. This means we can say that someone receiving a punishment, even a very severe punishment, has revealed that he preferred that to a martial contest, meaning, the state of affairs that pertains now is better than it was when the parties were locked into the prospect of martial contest. Similarly for self-defense and preemptive attack.

ClaytonB:

Rothbard argues from the point of view of natural law

I agree that Rothbard's conception of law is unsatisfactory.  He came up with a brilliant set of principles and arguments for what the law should be, in his opinion (and mine), but failed to consider broader and more varied conceptions of law and property.

Yep. I ran across a passage in Ethics of Liberty in the chapter on lifeboat scenarios where he addresses the issue of whether someone has a duty to sacrifice themselves to principle. I am going to go over this passage carefully because it goes to potentially answering my objection against Rothbard that he expects the convicted to "sacrifice himself to principle", as it were.

ClaytonB:

an aggressor usually will not attack unless he reasonably believes he can get away with the attack in the first place. That is, he has already calculated that he can win a martial contest with the victim.

"get away with" is not equivalent to "win a martial contest with".  The aggressor may have calculated that he will not be detected or caught.

True.

ClaytonB:

Stephan Kinsella follows what he terms an “estoppel approach” to argue that a party to a non-violent dispute must accept violence against himself in proportion to that which he has already used against his victim because he is “estopped” by his past actions, that is, he would be committing what Hoppe calls a “performative contradiction” to argue otherwise. This argument is deeply unsatisfying, not least because it is easy to wriggle out of Hoppe’s performative contradiction by accepting that one has acted as a hypocrite. So, no one would ever commit a crime worse than hypocrisy, which does not seem to me to be a very serious crime, if it is a crime at all. However, Kinsella’s approach falls on the same criterion that Rothbard’s, Friedman’s and Hoppe’s approaches fall – it is not useful to parties in a real legal dispute. One side need only reject the doctrine of estoppel, which is not a very large leap, since the doctrine is not even in use in modern law, as Kinsella himself admits.

This is a misrepresentation of what Kinsella is trying to do with estoppel theory.  As I understand it, the scope is smaller: it is an argument for why libertarian courts should base their stipulated resolutions on retaliation, rather than restitution.  That they should aim "make the aggressor suffer to the extent that his victim suffered (to the extent this is possible)", rather than "make the victim whole again (to the extent this is possible)".  Kinsella is addressing his argument to libertarians, not to non-libertarians, and certainly not to criminals.  He is giving reasons why libertarians should not feel unethical about use retaliatory force against an aggressor, beyond the point of restitution.  (Roderick Long and Geoffrey Allan Plauche, for example, maintain that retaliatory force is un-libertarian).

I'll look at this again, but I don't think I'm misunderstanding him. He answered my post on my blog (I was shocked) and said I misunderstood him (in a different way than you are saying I misunderstood), but his answer reaffirmed the very thing I'm criticizing! The root of my disagreement is with the Hoppean idea of performative contradiction, which Kinsella also holds. I reject the idea.

ClaytonB:

The third category of justifiable violence is retaliation. However bad the retaliatory violence stipulated in the agreement may be (let’s say, a public whipping of 40 lashes), the punished party preferred that resolution to martial contest. Hence, we arrive at a conclusion which has evaded libertarian treatments of punishment: retributive violence can constitute an improvement in social welfare as evidenced by revealed preference.

I don't see why it should matter, to a libertarian, why violence is becomes justifiable just because it is administered by a court as opposed to in a "martial contest".  An improvement in social welfare is not a good reason.  Surely the question for a libertarian qua libertarian is: what amount of retaliatory force is justifiable, if any?

No, I disagree with this. Humans act to improve their welfare (or reduce their suffering, if you're a half-empty type). This is why they exchange with one another. We say that we know individuals are better off as a result of having exchanged with one another (voluntarily) because they wouldn't have exchanged if they didn't believe they be better off after exchanging. I'm saying that this same principle applies to stipulated court agreements... if I agree to receive 40 lashes as punishment for my actions in order to stave off martial contest, I have, in essence, "exchanged" martial contest for 40 lashes. So, you can know I am better off for having gone to court and accepted a punishment of 40 lashes than I was beforehand when I was locked into a martial contest.

A bubble-gum thief may choose to cooperate with a court because a martial contest would mean death and the court's punishment for bubble-gum theft is "merely" torture.

Remember, however, that I'm assuming the accused has free choice of court. This is more Friedmanesque and less Hoppean (Hoppe seems, to me, to implicitly assume a regional homogeneity to courts, which is possibly more realistic than Friedman).

Does this make torture a justifiable use of force in retaliation to bubble-gum theft?  Just because it was administered through "non-violent means (a court)" or improves social welfare?  Estoppel theory, on the other hand, would say no it isn't, because it is far from the principle of "equal suffering".  Long and GAP would of course argue that no retaliatory force is justifiable.

I would say it might be justifiable and it depends on whether that is the punishment that bubble-gum thieves generally accept in order to settle their cases. If torture is the customary punishment for bubble-gum theft, then the bubble-gum thief will have difficulty finding a court which will rule anything more lenient. So, his choice is to accept torture or get ready to fight.

I'm not trivializing, here... I agree with you that proportionality of punishment is an important part of libertarian theory of law (as well as justifying punishment at all)... it's just not the part of libertarian law that I have in view in the article.

If your conclusion is correct, it is interesting to an anarchist qua anarchist though because it means in an anarchic system of law, with courts competing for customers, retributive violence may become the common principle used by the courts when they are stipulating resolutions.

I think there is a more compelling answer to Long, namely, that restitution itself is still a kind of retaliation... they're just characterizing it in language which makes it seem to be something different. There are two ways to see this. First, let's assume you falsely accuse me of stealing your TV. We go to court and you succeed in framing me. When the TV is removed from my house, there is no restitution which is occurring, I am being aggressed against (with the accomplice of the court) and I am clearly suffering a punishment. Second, there is the problem of restitution of unlike things, e.g. I did steal your TV but then sold it immediately... now I have to pay you back in terms of something else. Rothbard discusses this in EoL but I find his rationalizations dissatisfying. If property is just a way of dividing up physical resources to exclusive control of one individual, then the outcome of a court decision is property-boundary redrawing and it is violent (unilateral) because it is occurring under duress (you wouldn't have agreed to it except that the alternative is martial contest).

Excellent post overall.  Good work.

Thanks!

Clayton -

I do not disagree with Bastiat. Do you feel that I have misquoted or abused him?

Well, again, I can't say this is correct : "Frederic Bastiat, in his treatise The Law, defines law as the collective use of force." Any criminal organization uses force collectively but that's not what Bastiat has in mind when he talks about the law.

"La Loi, c'est donc uniquement l'organisation du droit individuel préexistant de légitime défense."

"The law, it is simply the organization of the individual, preexistent right of legitimate defense."

And of course, Bastiat is 100% an advocate of natural law/individual rights. His point in "The Law" is not so much to talk about collective organization but to say "la loi, c'est la justice" - "the law, it is justice" - law(individual rights) and justice are the same thing.

(That sort of thing will curdle the blood of amoralists, utilitarians and relativists...maybe Bastiat should be exorcised.)

ClaytonB:

ClaytonB:

The state guards its monopoly on dispute-resolution as jealously as it guards its monopoly on the use of force or its monopoly on the coercive collection of revenues.

The State does not have a monopoly on force per se but it has a monopoly on deciding when and what force is jusified/legal/legitimate; this is simply a re-statement of the State's monopoly on dispute-resolution.  This monopoly is possible only because the majority of the population accept that the State is the only organization which should make this decision - i.e. that any other organization declaring when and what force is legitimate, and carrying out force outlawed by the government, is criminal, whereas the State is sovereign.

True. I agree with Hoppe's primary emphasis on the monopoly on law as the defining feature of the State. I have noticed that Rothbard tended to emphasize the State's territorial monopoly on use of (legitimate) force. Either way, law and security are integrally related as I noted. I believe the primary task in destroying the State is to attack the monopoly on law because the monopoly on force falls automatically if you destroy the monopoly on law and it's much harder to argue for a monopoly on law than for a monopoly on force... even the Hobbesian myth can't get you from state of nature to "you must only ever bring your disputes to the territorial monopolist of law." The Hobbesian myth works, no matter how mythical it is, but it only works for justifying the State's monopoly on legitimate force. So, we should just do an end run around Hobbes.

Nice insights both. De facto "legitimacy" is just a matter of the opinions of each individual in the society. If those opinions tend to be for a territorial monopoly on force, law, etc., and against anyone opting out without emigrating, then the social structure will tend to reflect that.

I think you are saying that rather than try to sway opinion against monopoly on force (which would run up against the persistent Hobbesian myth), we could more easily try to sway opinion against a monopoly on law.

Another option would be to convince people to let others opt out of the legal system, or at least to start opting out of certain aspects that people don't consider to be necessarily territorial (like health care). As evidence of how easy it might be to convince people on this, see this article written by a non-panarchist/non-anarchist lay person, worded in such a way that it seems almost obvious even from a mainstream perspective.

liberty student:

trulib, Clayton win.  Laughing Man honourable mention for two strong 3rd place performances.

I'll PM you guys shortly.  Keep the discussion going.

Thanks dude

AJ:

Another option would be to convince people to let others opt out of the legal system, or at least to start opting out of certain aspects that people don't consider to be necessarily territorial (like health care). As evidence of how easy it might be to convince people on this, see this article written by a non-panarchist/non-anarchist lay person, worded in such a way that it seems almost obvious even from a mainstream perspective.

AJ, I am loathe to send that article to my statist friends.  The distinction between territorial and non-territorial goods is a false one, and it plays into the idea that there are two classes of goods - some that can be provided by the market and some that can't.  I consistently stress in conversations I have with Statists that the central question of monopoly vs. competition applies to all goods and industries, be it computers, food, healthcare, or roads, security, law, etc. 

While I like the right of exit rule, I don't see why its limited to "community" goods.  As for the localization rule, it really just begs the question what is the "most local feasible level" and who gets to decide?

Also...

• "In the interests of convincing you I’m not crazy, I won’t get all anarchist on you"
• "Legitimate functions of government"
• "In any case, I can’t see any way around people paying some form of taxes to territories under this system."
• "While extreme libertarians might like to hear me call all taxation theft"  

... these are not messages I want to promote.

This article is much better IMO, and simpler.  I am going to start a new post about the success I am having by sending this article to statists.

The significance of the article I linked is not that it makes a good argument, nor that it is a good link to send to statists. The significance I see is that it shows how close these ideas can be to mainstream thinking. Here is clearly someone from a mainstream non-anarchist perspective coming toward a panarchist mindset in a strikingly unlabored fashion.

That he's not completely there is to be expected, but the effortlessness with which the author comes anywhere near panarchy is extremely suggestive as to which libertarian arguments might be most persuasive with the general public. I have never seen a mainstream article come near AnCap, for instance. It suggests that the panarchist framing of anarchy has more intuitive appeal.

Now, links to send to people are an entirely separate matter. I have read that other article and it is quite good, definitely a good one to send to friends. I await your post with interest.

AJ:

I await your post with interest.

Ditto.

Clayton -

ClaytonB:

I guess I'm conflating a descriptive and normative theory of law, here (and elsewhere). Perhaps I need to untangle those components.

I'm just starting to learn how to untangle them myself.  Boundaries of Order has transformed my thinking about property in this regard, but the ideas are still new to me.

ClaytonB:

It is possible for disputes to arise for many reasons not related to a property conflict. Cheating is a good example... a woman cheats on her husband so he kills the man she cheated with, that is, a dispute arose between the two men. Nevertheless, there was no property conflict.

There was a property conflict, if you consider property as devoid of any normative assumptions.  The husband considered himself to have an ownership right in his wife such that no man could have an affair with her (without his permission).  The lover invaded this perceived property right; he unilaterally redrew the boundaries the husband had drawn.  Whether the lover's or the husband's claim is valid is a normative consideration. 

ClaytonB:

This seems to contradict Hoppe's Garden of Theory analysis.

What do you mean by this?

I think most of your other responses relate to normative concepts, whereas I was thinking in more general terms.  So we're sort of talking past each other.

ClaytonB:

In any case, my characterization of law as an alternative to martial contest is not inconsistent with any of Rothbard, Hoppe, Friedman etc. I just haven't found any place where they describe the law in this way and I think that this is, at least, an important oversight since if law is characterized as an alternative to something worse (martial contest), then any sort of violence which is stipulated as part of an agreement is an example of revealed preference. This means we can say that someone receiving a punishment, even a very severe punishment, has revealed that he preferred that to a martial contest, meaning, the state of affairs that pertains now is better than it was when the parties were locked into the prospect of martial contest. Similarly for self-defense and preemptive attack.

Have you read Benson's The Enterprise of Law?  He characterizes law very much as the solving of conflicts and how individuals are motivated to cooperate with the law as an alternative to something worse. 

ClaytonB:

trulib:

ClaytonB:

Friedman presents the case that anarchic law leads to the best or most efficient outcome for society. That is, Friedman is arguing from the point of view of social justice or social welfare. But this approach assumes that the individual cares about social welfare.

This does not follow.  Friedman writes to try and convince people that anarchic law is a good idea, and chooses to promote the idea by referring to social justice and social welfare.  He assumes his reader cares about these things, so that they will support the idea.  He does not assume that when the idea is implemented, it requires disputants to care about these things.  In Friedman's model, disputants are choosing to use courts out of self-interest.

Well, I take exception to this interpretation for two reasons. First, Friedman says that he chooses the utilitarian approach because he believes we know a lot more about what to expect from certain rule systems (i.e. outcomes) than we know about moral philosophy (specifically, rights, natural rights, etc.)

I don't see how this is an exception to what I said.  That's just Friedman's writing style and has nothing to do with his system.

ClaytonB:

Second, Friedman nowhere that I can find discusses the issue of whether courts are consulted on a purely voluntary basis and many of the discussions he has (such as what the "efficient" fine schedule for speeding is) seem to presuppose a coercive/monopolist court.

Coercive, yes.  Not like merchant law which was purely voluntary.  The merchants either paid the punishment prescribed by the merchant court, or he lost his reputation and was boycotted.  But this can (I conjecture) only work when reputation is highly sigificant, so I don't think this kind of voluntary system can work as the entire legal system of a society.  So Friedman is talking about a coercive legal structure in this sense; that when a court announces a punishment, it can use coercion to see that it's punishment is carried out.  The criminal is obliged to pay his debts; the system does not rest entirely on reputation, as voluntary law does.

But monopolist, no.  He is always referring to multiple competing courts and legal codes.  That's the competition that enables the most efficient way of doing things to be discovered. 

ClaytonB:

trulib:

Kinsella is addressing his argument to libertarians, not to non-libertarians, and certainly not to criminals.  He is giving reasons why libertarians should not feel unethical about use retaliatory force against an aggressor, beyond the point of restitution.  (Roderick Long and Geoffrey Allan Plauche, for example, maintain that retaliatory force is un-libertarian).

I'll look at this again, but I don't think I'm misunderstanding him. He answered my post on my blog (I was shocked) and said I misunderstood him (in a different way than you are saying I misunderstood), but his answer reaffirmed the very thing I'm criticizing! The root of my disagreement is with the Hoppean idea of performative contradiction, which Kinsella also holds. I reject the idea.

Kinsella confirms what I'm saying: that his argument addressed to libertarian victims.  It is not supposed to be a convincing argument to make criminals accept punishments, or anything like that. 

Estoppel theory is a similar idea to argumentation ethics, but the purpose is very different.  AE makes the grand claim of being a justification for objective ethics.  Estoppel theory is just the idea that after a criminal has stolen $50 from me, I have a right not only take back my $50, but I have a right to take an additional $50 from him as well.  If the criminal objects to me doing this he's a damn hypocrite because he obviously doesn't really believe stealing $50 is wrong, otherwise he wouldn't have done it himself.  This is a simplification, but the idea is that a libertarian who is a victim of crime shouldn't feel bad about exacting retribution from the criminal (on top of restitution), to the extent of causing him "equal suffering".  You may not like the theory but how else will a libertarian justify (to himself) exacting retribution (on top of restitution)?  Or would it be wrong for a libertarian to do so? 

This thread was helpful to me; I disagree with Kinsella on AE, but I agree with him on estoppel theory being a good argument for why retribution should be primary in libertarian theories of punishment.

Anyway, estoppel theory itself doesn't really have anything to do with the functioning of a market in law.

ClaytonB:

trulib:

ClaytonB:

The third category of justifiable violence is retaliation. However bad the retaliatory violence stipulated in the agreement may be (let’s say, a public whipping of 40 lashes), the punished party preferred that resolution to martial contest. Hence, we arrive at a conclusion which has evaded libertarian treatments of punishment: retributive violence can constitute an improvement in social welfare as evidenced by revealed preference.

I don't see why it should matter, to a libertarian, why violence is becomes justifiable just because it is administered by a court as opposed to in a "martial contest".  An improvement in social welfare is not a good reason.  Surely the question for a libertarian qua libertarian is: what amount of retaliatory force is justifiable, if any?

No, I disagree with this. Humans act to improve their welfare (or reduce their suffering, if you're a half-empty type). This is why they exchange with one another. We say that we know individuals are better off as a result of having exchanged with one another (voluntarily) because they wouldn't have exchanged if they didn't believe they be better off after exchanging. I'm saying that this same principle applies to stipulated court agreements... if I agree to receive 40 lashes as punishment for my actions in order to stave off martial contest, I have, in essence, "exchanged" martial contest for 40 lashes. So, you can know I am better off for having gone to court and accepted a punishment of 40 lashes than I was beforehand when I was locked into a martial contest.

I don't see the relevance of this observation. 

ClaytonB:

I think there is a more compelling answer to Long, namely, that restitution itself is still a kind of retaliation... they're just characterizing it in language which makes it seem to be something different. There are two ways to see this. First, let's assume you falsely accuse me of stealing your TV. We go to court and you succeed in framing me. When the TV is removed from my house, there is no restitution which is occurring, I am being aggressed against (with the accomplice of the court) and I am clearly suffering a punishment. Second, there is the problem of restitution of unlike things, e.g. I did steal your TV but then sold it immediately... now I have to pay you back in terms of something else.

There are semantic problems here.  I would define retaliation as violence used in response to an act of aggression.  So restitution and retribution are forms of retaliation.  Punishment I define as retaliation that has been ordered by a court.  The purpose of the punishment could be either to restitute (try to make the victim whole again) or retribute (try to make the criminal suffer like the victim suffered). 

Your first issue is clearly simple aggression on my part, and a mistake by a court.  Mistakes happen.  If you actually stole my TV, my taking it back would be my restitution and your punishment.

Your second issue is impossible to solve; crimes cannot be undone.  The best we can do is equivocate (you pay me money instead of my TV).  This applies to a retribution-based punishment as well.  We cannot know exactly how much suffering my loss of a TV caused me, and we cannot know how much suffering any particular punishment will cause you.  But we can do the best we can, trying to equivocate.

trulib:

ClaytonB:

I guess I'm conflating a descriptive and normative theory of law, here (and elsewhere). Perhaps I need to untangle those components.

I'm just starting to learn how to untangle them myself.  Boundaries of Order has transformed my thinking about property in this regard, but the ideas are still new to me.

I have yet to read any Shafer... though, from his LRC articles, I find him to be a bit... I don't know how to say it... depressing... stuffy... something like that.

ClaytonB:

It is possible for disputes to arise for many reasons not related to a property conflict. Cheating is a good example... a woman cheats on her husband so he kills the man she cheated with, that is, a dispute arose between the two men. Nevertheless, there was no property conflict.

There was a property conflict, if you consider property as devoid of any normative assumptions. The husband considered himself to have an ownership right in his wife such that no man could have an affair with her (without his permission).

But that contradicts a liberal conception of property... no one can have property in someone else's body since this is slavery. Yes, that is normative but I'm trying to analyze the problem of law given the liberal conception of what property is. I think that it is fairly unproblematic to derive strong philosophical justifications for the broad outlines of what property is, that is, the liberal conception... and I think that it is safe to predict that, in a competitive law society, the market for arbitration would inexorably move towards a liberal definition of property or something extremely close to it.

The lover invaded this perceived property right; he unilaterally redrew the boundaries the husband had drawn.  Whether the lover's or the husband's claim is valid is a normative consideration.

The woman's body is her own property. Neither man has claim to it - the dispute is, from the propertarian PoV - gratuitous. I'm still working on the issue of gratuitous disputes... I think they are important. I will also begin thinking what happens if both sides don't agree on the philosophy or property, for example, if a Marxist steals from someone claiming that he has equal rights to that person's property. Here, the challenge is directly at the philosophical foundations and the (verbal) dispute becomes more complex.

ClaytonB:

In any case, my characterization of law as an alternative to martial contest is not inconsistent with any of Rothbard, Hoppe, Friedman etc. I just haven't found any place where they describe the law in this way and I think that this is, at least, an important oversight since if law is characterized as an alternative to something worse (martial contest), then any sort of violence which is stipulated as part of an agreement is an example of revealed preference. This means we can say that someone receiving a punishment, even a very severe punishment, has revealed that he preferred that to a martial contest, meaning, the state of affairs that pertains now is better than it was when the parties were locked into the prospect of martial contest. Similarly for self-defense and preemptive attack.

Have you read Benson's The Enterprise of Law?  He characterizes law very much as the solving of conflicts and how individuals are motivated to cooperate with the law as an alternative to something worse.

I've read the excerpt from that book that was posted as a Mises daily. It's excellent. I'll keep that book in mind as a must-read.

ClaytonB:

Second, Friedman nowhere that I can find discusses the issue of whether courts are consulted on a purely voluntary basis and many of the discussions he has (such as what the "efficient" fine schedule for speeding is) seem to presuppose a coercive/monopolist court.

Coercive, yes.  Not like merchant law which was purely voluntary.  The merchants either paid the punishment prescribed by the merchant court, or he lost his reputation and was boycotted.  But this can (I conjecture) only work when reputation is highly sigificant, so I don't think this kind of voluntary system can work as the entire legal system of a society.  So Friedman is talking about a coercive legal structure in this sense; that when a court announces a punishment, it can use coercion to see that it's punishment is carried out.  The criminal is obliged to pay his debts; the system does not rest entirely on reputation, as voluntary law does.

OK - I guess I'm trying to recategorize the possibility of martial contest from "coercion" to a free choice on the assumption that both parties are equally well-defended (e.g. both have major commercial PDAs to defend them).

But monopolist, no.  He is always referring to multiple competing courts and legal codes.  That's the competition that enables the most efficient way of doing things to be discovered.

Yeah, I shouldn't have said monopolist... the whole point of Friedman's AC conception of society is competing law.

ClaytonB:

trulib:

Kinsella is addressing his argument to libertarians, not to non-libertarians, and certainly not to criminals.  He is giving reasons why libertarians should not feel unethical about use retaliatory force against an aggressor, beyond the point of restitution.  (Roderick Long and Geoffrey Allan Plauche, for example, maintain that retaliatory force is un-libertarian).

I'll look at this again, but I don't think I'm misunderstanding him. He answered my post on my blog (I was shocked) and said I misunderstood him (in a different way than you are saying I misunderstood), but his answer reaffirmed the very thing I'm criticizing! The root of my disagreement is with the Hoppean idea of performative contradiction, which Kinsella also holds. I reject the idea.

Kinsella confirms what I'm saying: that his argument addressed to libertarian victims.  It is not supposed to be a convincing argument to make criminals accept punishments, or anything like that. 

Estoppel theory is a similar idea to argumentation ethics, but the purpose is very different.  AE makes the grand claim of being a justification for objective ethics.  Estoppel theory is just the idea that after a criminal has stolen $50 from me, I have a right not only take back my $50, but I have a right to take an additional $50 from him as well.  If the criminal objects to me doing this he's a damn hypocrite because he obviously doesn't really believe stealing $50 is wrong, otherwise he wouldn't have done it himself.  This is a simplification, but the idea is that a libertarian who is a victim of crime shouldn't feel bad about exacting retribution from the criminal (on top of restitution), to the extent of causing him "equal suffering".  You may not like the theory but how else will a libertarian justify (to himself) exacting retribution (on top of restitution)?  Or would it be wrong for a libertarian to do so?

OK, I understand. The first issue is to show that retribution is justifiable. The second is to try to establish how much retribution is justifiable. But I don't think the amount of punishment is something that can be derived from first principles. The dispute resolution should be stipulated and should always be the outcome of both parties agreeing to the given resolution. I think that if this is the case, there would emerge a kind of "market price" for certain actions (I'm borrowing this idea from Friedman), so that, kidnapping almost always results in punishment X being stipulated, armed assault almost always results in punishment Y being stipulated, and so on. As a market matures, the victim will no longer be faced with a wide-open range of possible punishments but will likely have to choose from a menu of "customary punishments" and get the aggressor to agree to the same punishment in order to resolve the dispute.

ClaytonB:

I think there is a more compelling answer to Long, namely, that restitution itself is still a kind of retaliation... they're just characterizing it in language which makes it seem to be something different. There are two ways to see this. First, let's assume you falsely accuse me of stealing your TV. We go to court and you succeed in framing me. When the TV is removed from my house, there is no restitution which is occurring, I am being aggressed against (with the accomplice of the court) and I am clearly suffering a punishment. Second, there is the problem of restitution of unlike things, e.g. I did steal your TV but then sold it immediately... now I have to pay you back in terms of something else.

There are semantic problems here.  I would define retaliation as violence used in response to an act of aggression.  So restitution and retribution are forms of retaliation.  Punishment I define as retaliation that has been ordered by a court.  The purpose of the punishment could be either to restitute (try to make the victim whole again) or retribute (try to make the criminal suffer like the victim suffered). 

Your first issue is clearly simple aggression on my part, and a mistake by a court.  Mistakes happen.

Yes, though in a private law society, courts could be liable for their role in such mistakes. Which is a good thing!

If you actually stole my TV, my taking it back would be my restitution and your punishment.

OK, this has to do with what the reasons are for redrawing the property lines to resolve a dispute - if the sole purpose is to inflict pain on the aggressor, then property destruction would do just as well as property transfer... i.e. if you steal someone's car, just blowing it up would be as good a resolution as returning it to the original owner if the sole purpose is to inflict suffering on the aggressor. So, it seems that there are two elements to redrawing the property lines as part of dispute resolution - to restore the victim to whatever extent possible and inflict an appropriate amount of suffering on the aggressor. Longites disagree and see the sole purpose to be to restore the victim to whatever extent possible. Interesting...

I guess where I take exception to you is that you seem to be linking the two... the restoration of the victim and the punishment of the aggressor, that is, that the punishment of the aggressor should be in some "proportion" to the restoration of the victim. I agree that the principle that the punishment should fit the crime is a crude expression of the degree of punishment which most people will find appropriate, i.e. no cutting off hands for bubble gum thieves. But I don't believe this principle can be applied as rigorously as Rothbard does in EoL - basically, he says that if you steal $1,000 from me, I have a right to be restored $2,000. If you hit me, I have a right to hit you twice. If you bruise me, I have a right to bruise you twice. And so on. While the principle he uses to arrive at this conclusion is sound, I disagree with the "multiply by 2" principle. As you mention below, most punishments except for maybe petty thefts will involve some kind of equivocation so that there is no way to tell what is two times the original deprivation of the victim's rights - if you carelessly drop a bucket on me from overhead and knock me unconscious, it doesn't make any sense that my punishment to you would be to get the opportunity to twice knock you unconscious with a bucket dropped from overhead. But how do you translate "bucket to the head" to any other form of suffering? Most likely, the customary punishment for such an offense would be monetary and I believe the amount would also become customary... i.e. negligence that results in temporary, moderate physical harm is usually punished by a fine of between $X and $Y and the job of the court would be to act as a negotiator between the parties in determining exactly what amount will be paid. If we take the subjective theory of value (and negative value, i.e. suffering) seriously, there really is no way to measure or compare magnitudes of suffering. All that can be said is what amount of money or corporal punishment or jail time or indentured servitude or ________ is customarily agreed upon by parties to certain kinds of disputes.

So, I see a weak link, an intuitive link, between the magnitude of a crime and its punishment, but I don't think that a lot can be said about what proportionality would hold between crimes and punishments. I doubt that even financial crimes would be a simple "multiply by two" though I think the guidelines would be an awful lot more objective than in today's system (where means is the primary measure of financial punishment... i.e. deep pockets get hit with big fines).

Your second issue is impossible to solve; crimes cannot be undone.  The best we can do is equivocate (you pay me money instead of my TV).  This applies to a retribution-based punishment as well.  We cannot know exactly how much suffering my loss of a TV caused me, and we cannot know how much suffering any particular punishment will cause you.  But we can do the best we can, trying to equivocate.

And I think that's where the "market price" theory of dispute-resolution shines... conventions would emerge regarding how much suffering a loss of a TV really is ... as measured in dollars. This could be something as simple as an equation that becomes customary... i.e. the multiply purchase price by 2 rule or some other equally simple rule.

Clayton -

What happened to this thread's formatting?

I found a recent article that may be relevant to your thesis. John Hasnas again. The guy is on a roll. Here's the abstract:

Advocates of the privatization of law often assume that unless law
springs from some act of agreement, some express or implicit social
contract by which individuals consent to be bound, it is nothing
more than force. In this Article, I argue that this is a false dilemma.
Although law is rarely grounded in consent, this does not imply that
law necessarily gives some individuals command over others. Law
can arise through a process of evolution. When this is the case, those
subject to law are indeed bound, but not by the will of any particular
human beings. Although this depoliticized law is inherently coercive, it
is not inherently a vehicle for domination. This Article argues that such
a system of depoliticized law is consistent with the ideal of the rule
of law, and, in fact, is free market law, when that phrase is properly
understood.

Also, a nice excerpt:

The holy grail of libertarian legal theory is "free market law." Several libertarian scholars have undertaken a quest to show how market forces can generate the rules of law necessary for a peaceful and orderly society. These scholars have made their task unnecessarily difficult, however, by adopting the economists’ definition of the ideal market and by limiting their analysis to the effect of competitive forces. Whether competition alone can produce a viable, liberal legal regime in an unregulated environment is undoubtedly an interesting theoretical question. But it is not one that must be answered to determine whether free market law can exist. For when we turn our attention from flights of economic fancy to the real world, it becomes apparent that depoliticized law is free market law.

As noted in Part I, in the real world, human action is always subject to some form of regulation. There can be a free market in the real world only in
the sense that human beings are permitted to transact their business free from political regulation. This means that the free market is correctly understood as the realm of human activity regulated by ethical beliefs, customary practices, and spontaneously evolved law. But spontaneously evolved law is depoliticized law. When we are not blinded by ideal economic types, we can see that depoliticized law is an integral part of the free market. In my judgment, the effort to provide an account of how purely competitive forces can produce a functioning system of consent-based law is a red herring. As intriguing as this speculation may be, it is tangential to the central question of libertarian theory, which is how human beings organize themselves in the absence of a centralized coercive authority. The answer to this question is not merely that they buy, sell, and trade with each other in a manner that increases aggregate welfare, but also that they resolve interpersonal disputes in a way that gives rise to general rules that enhance the ability of individuals to pursue their ends free from violent interference by their fellows. The spontaneous generation of such depoliticized law is part and parcel of the market process. Depoliticized law is as much a product of the market as are cars, coal, and tangerines. In economic terminology, depoliticized law is endogenous to the market.

In my opinion, libertarians can call off the quest. The grail has been found. Just as in the movie Indiana Jones and the Last Crusade, it was
hidden in plain sight. Free market law is the depoliticized law that has been with us for centuries and that forms the infrastructure of the Anglo-American legal system.

trulib:

Kinsella is addressing his argument to libertarians, not to non-libertarians, and certainly not to criminals.  He is giving reasons why libertarians should not feel unethical about use retaliatory force against an aggressor, beyond the point of restitution.  (Roderick Long and Geoffrey Allan Plauche, for example, maintain that retaliatory force is un-libertarian).

Depends on what you mean by retaliatory force. I haven't read the whole post, much less the whole thread, so you may cover this, you may not - nevertheless, just in case, I want to clarify that while Long and I are inclined to hold that retributive punishment is unlibertarian, we do think that defensive force to end a rights violation (including to acquire restitution) is justified/libertarian.

Down with retribution! Primitive, unquantifiable, and easily devolves into an excuse for aggression.

Geoffrey Allan Plauche:

trulib:

Kinsella is addressing his argument to libertarians, not to non-libertarians, and certainly not to criminals.  He is giving reasons why libertarians should not feel unethical about use retaliatory force against an aggressor, beyond the point of restitution.  (Roderick Long and Geoffrey Allan Plauche, for example, maintain that retaliatory force is un-libertarian).

Depends on what you mean by retaliatory force. I haven't read the whole post, much less the whole thread, so you may cover this, you may not - nevertheless, just in case, I want to clarify that while Long and I are inclined to hold that retributive punishment is unlibertarian, we do think that defensive force to end a rights violation (including to acquire restitution) is justified/libertarian.

Yes, I was referring to the use of retaliatory force beyond the point of restitution.  If the force is used to "make the criminal suffer to the same extent he made his victim suffer" is greater than the force used to "make the victim feel whole again" then you would say this "extra" force is unjustified.  Kinsella, using his estoppel approach, would say that it is justified.

I think in a free market in law, courts taking the Kinsella approach would be more successful than courts merely focussed on restitution.  Restitution-only courts do not take into account the status of the criminal, so they suffer from the "millionaire problem", the "repeat offender problem", the "confession problem", and the "intent problem".  Estoppel theory makes a persuasive case for why libertarians should not feel they have violated the rights of their aggressor by using one of these courts, which will use retaliatory force beyond the point of restitution.

trulib:

Geoffrey Allan Plauche:

trulib:

Kinsella is addressing his argument to libertarians, not to non-libertarians, and certainly not to criminals.  He is giving reasons why libertarians should not feel unethical about use retaliatory force against an aggressor, beyond the point of restitution.  (Roderick Long and Geoffrey Allan Plauche, for example, maintain that retaliatory force is un-libertarian).

Depends on what you mean by retaliatory force. I haven't read the whole post, much less the whole thread, so you may cover this, you may not - nevertheless, just in case, I want to clarify that while Long and I are inclined to hold that retributive punishment is unlibertarian, we do think that defensive force to end a rights violation (including to acquire restitution) is justified/libertarian.

 

Yes, I was referring to the use of retaliatory force beyond the point of restitution.  If the force is used to "make the criminal suffer to the same extent he made his victim suffer" is greater than the force used to "make the victim feel whole again" then you would say this "extra" force is unjustified.  Kinsella, using his estoppel approach, would say that it is justified.

I think in a free market in law, courts taking the Kinsella approach would be more successful than courts merely focussed on restitution.  Restitution-only courts do not take into account the status of the criminal, so they suffer from the "millionaire problem", the "repeat offender problem", the "confession problem", and the "intent problem".  Estoppel theory makes a persuasive case for why libertarians should not feel they have violated the rights of their aggressor by using one of these courts, which will use retaliatory force beyond the point of restitution.

I like to think of retaliation as an aspect of human nature - people want to retaliate against certain behaviors, so they do - more of a "realist" approach. The issue, then, is what sorts of retaliations are justifiable and, more importantly, what are the criteria for determining whether a specific level of retaliation is justifiable or not? I think you said something to this effect earlier in the thread ... I now completely agree.

I read the essay on empirical natural rights by John Hasnas and found his point of view very persuasive - however, I still think all the authors I've read fail to emphasize the integral role that violence plays in justice and also fail to emphasize the significance of the voluntary exchange of accepting stipulated violence as opposed to martial contest. Hasnas brilliantly points out that after the emergence of the moot court in English common law, it became an expected condition for assistance from family members in a potentially violent dispute that the matter be heard by the council. It just goes to show how strong the disincentive to martial contest is... the costs of family warfare are devastatingly high and, since humans can make predictions, the efforts to avoid such high risks and costs are correspondingly high.

Clayton -

trulib:

I think in a free market in law, courts taking the Kinsella approach would be more successful than courts merely focussed on restitution.  Restitution-only courts do not take into account the status of the criminal, so they suffer from the "millionaire problem", the "repeat offender problem", the "confession problem", and the "intent problem".  Estoppel theory makes a persuasive case for why libertarians should not feel they have violated the rights of their aggressor by using one of these courts, which will use retaliatory force beyond the point of restitution.

I don't find estoppel theory very persuasive. It makes the false assumption that you are justified in doing anything to someone so long as he did it to you first. If someone did something monstrous to you, you can do it right back. I don't think this flies at all. A theory of virtue ethics and natural rights short circuits the logic of estoppel and undermines Kinsella's theory of justice.

Ironically, though Kinsella thinks retributive punishment is or can be justified, he thinks that in a free society justice will tend to be predominantly restitution-based. Vengeance just doesn't pay. And it's not civilized.

I don't see that restitution-only courts necessarily suffer from the problems you mention. For one thing, restitution has been successful in the past. Also, Long has written on some of these issues. Patronage, the right to restitution being saleable and homesteadable, are some solutions.

Your complaints about restitution-only (as opposed to restitution + retribution) courts also overlooks the possibility of criminal law courts, which need not deal in retributive punishments, but rather deal with risk mitigation, handing out decisions for penalties like ostracism, for example.

I don't find estoppel theory very persuasive. It makes the false assumption that you are justified in doing anything to someone so long as he did it to you first. If someone did something monstrous to you, you can do it right back. I don't think this flies at all.

That's exactly the problem I had with it. It can be reduced to an arbitrary justification for the most ridiculous retribution doctrine. I don't see how it constitutes anything other than primitive revenge.

Legislative law is just a set of rules written up by governments that outline the punishments for certain actions.  Is there more that needs to be said?

Geoffrey Allan Plauche:

trulib:

I think in a free market in law, courts taking the Kinsella approach would be more successful than courts merely focussed on restitution.  Restitution-only courts do not take into account the status of the criminal, so they suffer from the "millionaire problem", the "repeat offender problem", the "confession problem", and the "intent problem".  Estoppel theory makes a persuasive case for why libertarians should not feel they have violated the rights of their aggressor by using one of these courts, which will use retaliatory force beyond the point of restitution.

I don't find estoppel theory very persuasive. It makes the false assumption that you are justified in doing anything to someone so long as he did it to you first. If someone did something monstrous to you, you can do it right back. I don't think this flies at all. A theory of virtue ethics and natural rights short circuits the logic of estoppel and undermines Kinsella's theory of justice.

Ironically, though Kinsella thinks retributive punishment is or can be justified, he thinks that in a free society justice will tend to be predominantly restitution-based. Vengeance just doesn't pay. And it's not civilized.

I don't see that restitution-only courts necessarily suffer from the problems you mention. For one thing, restitution has been successful in the past. Also, Long has written on some of these issues. Patronage, the right to restitution being saleable and homesteadable, are some solutions.

Your complaints about restitution-only (as opposed to restitution + retribution) courts also overlooks the possibility of criminal law courts, which need not deal in retributive punishments, but rather deal with risk mitigation, handing out decisions for penalties like ostracism, for example.

Any response to crime other than shunning is inherently violent - even ostracism/exile is inherently violent. Restitution is merely a rationalization for a particular amount of violence in response to a crime. Self-defense likewise. Unless you are saying that shunning is the morally justifiable response to violence, then you are advocating tit-for-tat to one degree or another, perhaps to a smaller degree than Kinsella, but it is non-zero.

Clayton -

Brainpolice:

I don't find estoppel theory very persuasive. It makes the false assumption that you are justified in doing anything to someone so long as he did it to you first. If someone did something monstrous to you, you can do it right back. I don't think this flies at all.

That's exactly the problem I had with it. It can be reduced to an arbitrary justification for the most ridiculous retribution doctrine. I don't see how it constitutes anything other than primitive revenge.

Still not quite sure why revenge/retribution ought to be considered primitive or why one ought to be opposed to it. It seems that restoration of the person and his/her endeavors to their previously undamaged state is not the only thing that should be obtained in a legal framework. It seems that the person feeling subjectively satisfied that such a thing is ensured. And I think that in cases where restitution is incalculable or unable to be estimated, that persons ought not to be pushed aside and told "c'est la vie" and treated as though it was just some damn natural occurrence like an earthquake. 

ThorsMitersaw:

Brainpolice:

I don't find estoppel theory very persuasive. It makes the false assumption that you are justified in doing anything to someone so long as he did it to you first. If someone did something monstrous to you, you can do it right back. I don't think this flies at all.

That's exactly the problem I had with it. It can be reduced to an arbitrary justification for the most ridiculous retribution doctrine. I don't see how it constitutes anything other than primitive revenge.

still not quite sure why revenge ought to be considered primitive or why one ought to be opposed to it. 

Because it isn't justice in the sense of restoring anything to the victim, other than to appease some psychological desire. It just seems to be a re-enactment of the crime, an escalation or doubling of violence. It doesn't seem to accomplish anything productive. We're just beating the shit out of someone to make ourselves feel better - but that does seem like a rather primitive urge to me (obtaining satisfaction by inflicting violence). The rationale? "He did it first!". That sounds rather childish to me and dissolves any high-ground that one can have in terms of behavioral norms.

When the punisher is removed from the victim themselves, that seems to be even worse in a sense, because we've granted legitimacy to a 3rd party to do what amounts to initiate violence, since they can't be claiming to be defending themselves. But even in the case of the victim being the punisher, the violence is ex-post-defacto and can't really be called defense.

ThorsMitersaw:

Still not quite sure why revenge/retribution ought to be considered primitive or why one ought to be opposed to it. It seems that restoration of the person and his/her endeavors to their previously undamaged state is not the only thing that should be obtained in a legal framework

 

I think it may be better to look at revenge as a strictly personal thing and justice as a strictly legal social system in place by defenition.  So you could use whatever justice system is in place to get revenge on some one, if that suits your desires.

Brainpolice:

ThorsMitersaw:

Brainpolice:

I don't find estoppel theory very persuasive. It makes the false assumption that you are justified in doing anything to someone so long as he did it to you first. If someone did something monstrous to you, you can do it right back. I don't think this flies at all.

That's exactly the problem I had with it. It can be reduced to an arbitrary justification for the most ridiculous retribution doctrine. I don't see how it constitutes anything other than primitive revenge.

still not quite sure why revenge ought to be considered primitive or why one ought to be opposed to it. 

 

Because it isn't justice in the sense of restoring anything to the victim, other than to appease some psychological desire. It just seems to be a re-enactment of the crime, an escalation or doubling of violence. It doesn't seem to accomplish anything productive. We're just beating the shit out of someone to make ourselves feel better - but that does seem like a rather primitive urge to me (obtaining satisfaction by inflicting violence). The rationale? "He did it first!". That sounds rather childish to me and dissolves any high-ground that one can have in terms of behavioral norms.

When the punisher is removed from the victim themselves, that seems to be even worse in a sense, because we've granted legitimacy to a 3rd party to do what amounts to initiate violence, since they can't be claiming to be defending themselves. But even in the case of the victim being the punisher, the violence is ex-post-defacto and can't really be called defense.

I agree that a rationale must exist for the use of justifiable violence. However, I disagree with the attempt to categorize violence used in restitution as something other than violence. It is, in fact, violence. So, the difference between my position and your position is not whether the use of violence in response to violence is justifiable but what kinds or amounts of violence can be justified in response to violence.

A thorough-going libertarian legal philosophy places the freedom of the will of the individual as the value of paramount importance. But only in a society consisting solely of libertarians can we expect such a philosophy to come to dominate law. In fact, most people are not and never will be libertarian, so the law itself will never be libertarian, per se. That is, the law will never take preservation of the individual's freedom of will as its highest value. It may really be the case that a law system without retribution would be the most libertarian but I doubt that such a law system would emerge even in a natural order. The reason is that the law is bound by the facts of nature and nature is not concerned with maximizing the individual's freedom of will. Nature is concerned with maximizing the reproductive success of individuals. Maximal liberty of the individual does not necessarily maximize reproductive success, hence, nature is not necessarily libertarian. When I put my ethics hat on, I advocate for libertarianism. When I put my science hat on, I observe that a natural order will not be perfectly libertarian (though I expect it would be a great deal more libertarian than the statist order we live in today).

Clayton -

So in essence, all central planning is an attempt to improve on the natural order. It seems to most people that we ought to be able to improve on the natural order. However, highly counterintuitively, so far all attempts have indicated that improving on the natural order in any way at all is impossible and makes things much worse, without any exception throughout history. (Natural order: the order than grows spontaneously over time through the interactions, disputes, and resolutions among individuals in the absence of central planning.)