I am interested in finding books and papers that discuss how a legal system, in general, and a dispute resolution system, in particular, would work in a libertarian society.
I think of the following scenarios and wonder how it would be resolved in a libertarian society: A and B enter a contract. A agrees to sell 100 widgets to B for 10 pounds of gold. A delivers the widgets as promised, but B refuses to pay. B claims the widgets were of inferior quality. Similarly, B injures A. A claims he is entitled to 10 pounds of gold as compensation.
How does A get paid his 10 pounds of gold in either case? I understand that the general idea is that A and B would mutually agree on a private court, judge, arbitrator, or mediator of some sort to resolve their dispute. I also understand that B may be ostracized from society if B refuses to submit to a dispute resolution process or to follow the decision made by a court or judge. But, what if B does not fear ostracism and refuses to submit to a dispute resolution process? What if A and B do submit their dispute, A prevails, but B still refuses to pay?
Answers to these questions in this forum would be appreciated, but what I am really looking for is books and papers on the subject. I guess my general question is what force or compulsion, if any, would be used to enforce the law in a libertarian society? Or maybe better said, how would the law be enforced in a libertarian society? Thanks.
A collects stamps. B collects advanced weaponry. B wins.
This is why even with all it's faults we still need minimal government. You can have all the private security firms you want but that doesn't resolve the dispute. The loser of a serious dispute is never going to submit to punishment if he has superior firepower. You think a powerful gang leader is going to voluntarily go to jail if he is found guilty by some private court? And how does the average person on the street even know the facts of the case? Maybe the gang leader was innocent?
Also the whole notion of being ostracized is silly. Next time you shop at Walmart see if you can tell who should be "ostracized".
Lyle: I am not aware of anyone who has written at any length on this subject. However, I have been working on an article for sometime on the subject of law under 'anarchy' and I think this is one of the easier issues to dispose of. Here's what I have written on it:
Disputes are costly and risky, privatizing these costs rationalizes disputes. Human rights then begin to become exactly property rights. Rational property law, then, can only exist in the absence of socialization of the costs of disputes. The more that the costs of disputes are deflected from being borne by the decision-makers in the disputes, the less constrained by real scarcity the decision-makers are and the less concerned with the costs of the dispute they will be. If someone commits a tort ("crime") against someone else, in a natural order society, a dispute may arise. It is a human right for individuals to settle their disputes in any which way they both find mutually agreeable. Hence, if you both want to "take it outside" and duke it out, that's your business. So long as both parties agree to this method of dispute resolution, there are no further legal consequences. This is the basis of the idea of the duel. I term this martial contest.
If one party is disproportionately stronger than the other, the outcome of a martial contest is readily deduced by both parties. This "strongarm effect" creates a default outcome to the dispute... whatever the stronger party dictates. That is, might makes right. In modern law, a crime is not an offense against the victim, it is an offense against the State. By converting the dispute from a dispute between people who are nearly peers into a dispute between the State and an individual, a criminal dispute is transformed into the might-makes-right model - the dispute will be resolved in the manner the State says it will be resolved because the outcome of a martial contest between the accused and the State is certain (the accused will be vanquished). This is the basis of modern State courts or Hobbesian law*.
If, on the other hand, one party is not overwhelmingly more powerful than the other, then the outcome of a martial contest is - from the point of view of both parties - somewhat uncertain. Martial contests are an incredibly costly and unfair way to settle disputes and reasonable people will want to avoid these costs and risks. Arbitrated dispute resolution is far more cost effective, even though it involves negotiation, that is, relinquishing some of your interests in order to avoid a martial contest.
Arbitration is just a means to an end: settlement of a dispute without resort to martial contest. Customary law - or simply, law - emerges from a multitude of successfully arbitrated decisions. Experienced and in-demand arbitrators will utilize the "case record" to help parties see what sorts of settlements are realistically possible and which are not. The problem of incalcitrant parties to an arbitrated disputes is exaggerated... why else would the parties be paying an arbitrator except that they are seriously seeking to avoid martial contest?
As part of the settlement of disputes, the party who has wronged another will likely have to submit to the payment of damages - whether these damages constitute restitution only or retribution, as well, would emerge through precedent in the case record. That is, precedents would emerge over time... if you burn my house down, then you have to pay me the value of the house times two. Or, if you run over my dog, you have to either pay some fine or submit to some sort of public humiliation. And so on.
To add to this, let's look at the case where we have a party who is clearly in the wrong and another who is clearly in the right, both parties fairly well matched in terms of their ability to fight. The party in the right will always choose to argue instead of fight, since he stands to gain much more from arguing at much lower risk, than he can hope to gain by fighting (with much greater risk). The choice facing the party in the wrong is simple: fight or argue?
There are three possible outcomes facing the party in the wrong:
1) Fight and win everything 2) Fight and lose everything 3) Argue and lose something
But the party in the wrong cannot control the outcome of fighting, so he can only choose 1 or 2 together, or 3. If he's fairly well matched to the party in the right, he stands a fairly good chance of getting outcome 2, which could even include his death. Since he's clearly in the wrong, choosing 3 necessarily entails losing something but given that he's submitting to arbitration, he only stands to lose what is customarily judged to be fair, given his actions.
We should expect that, in a natural order society, security services would emerge that would put most people most of the time on a fairly equal footing, in terms of their ability to fight (my PDA vs. your PDA ... they're much more likely to be well-matched than you vs. me). In addition, we should expect that part of what forms the precedents on what are fair judgment awards is informed by how appealing the alternative of fighting looks, by comparison. In other words, the severity of customary awards for this or that tort will be informed by how willing a person is to fight rather than accept such judgments. I believe, for example, that this makes it impossible that arbitrators could "impose" the death penalty, since no one would ever accept certain death versus any other alternative. Hence, the most severe punishment an arbitrator could suggest is outlawing/ostracism (which I would expect would result in the wronged party - and his family - visiting vigilante justice on the party in the wrong).
Clayton -
Lyle D. Riggs:I am interested in finding books and papers that discuss how a legal system, in general, and a dispute resolution system, in particular, would work in a libertarian society. I think of the following scenarios and wonder how it would be resolved in a libertarian society: A and B enter a contract. A agrees to sell 100 widgets to B for 10 pounds of gold. A delivers the widgets as promised, but B refuses to pay. B claims the widgets were of inferior quality. Similarly, B injures A. A claims he is entitled to 10 pounds of gold as compensation. How does A get paid his 10 pounds of gold in either case? I understand that the general idea is that A and B would mutually agree on a private court, judge, arbitrator, or mediator of some sort to resolve their dispute. I also understand that B may be ostracized from society if B refuses to submit to a dispute resolution process or to follow the decision made by a court or judge. But, what if B does not fear ostracism and refuses to submit to a dispute resolution process? What if A and B do submit their dispute, A prevails, but B still refuses to pay? Answers to these questions in this forum would be appreciated, but what I am really looking for is books and papers on the subject. I guess my general question is what force or compulsion, if any, would be used to enforce the law in a libertarian society? Or maybe better said, how would the law be enforced in a libertarian society? Thanks.
I can't provide any books or papers right this moment, so I hope you don't mind if I answer your questions directly.
There's never any certainty that A will get the compensation that he claims he's entitled to. He always has the possibility (however small) of taking a loss from the situation. Presumably, this would motivate him to either purchase an insurance policy or self-insure.
In the case of A having an insurance policy, he can file a claim with his insurance company. The insurance company would first see whether A's claim seems valid (i.e. withstands scrutiny). It would do this because there's always a risk that A could be trying to defraud it. If the case holds up, it would then contact B and/or his insurance company (if he has one and it's different from A's). Note that it may have already made contact as part of its own investigation.
At this point, A's insurance company would probably first try to negotiate with B and/or his insurance company directly. If that fails, both sides would be motivated to find an impartial arbitrator to judge the dispute. The reasons are:
If B has a corresponding insurance policy with the same or another insurance company, and B refuses to abide by arbitration, then B would likely be summarily dropped from insurance coverage. This may well have negative consequences for B in the future. However, that doesn't mean B would be off the hook for the liability. The arbitration could proceed with B placed in absentia. Indeed, it could happen the other way around, with B's insurance being suspended during the arbitration process and only being reinstated if judgement is not found against him.
Now if A does not have an insurance policy with any insurance company, and B does, then the onus is on him to collect from B's insurance company. This puts more work on A directly, but otherwise doesn't change much.
What's more interesting is the case where B is self-insured and refuses arbitration. As before the judgement could proceed in absentia if the case is deemed to withstand (initial) scrutiny. Presuming that judgement is found against B and he refuses to submit, what could be done? Some form of record would be made stating the facts and outcome of the case. This would be sent to any and all organizations which track creditworthiness. B's credit rating (such as it may already be) would decline. A or his insurance company could also hire one or more collection agencies to harrass B into paying.
In the specific case of B refusing to pay A for 100 widgets because B found them defective, why wouldn't B file a claim against A or simply return the widgets to A? By not doing so, B is strengthening A's case against him.
The keyboard is mightier than the gun.
Non parit potestas ipsius auctoritatem.
Voluntaryism Forum
Lyle D. Riggs:I am interested in finding books and papers that discuss how a legal system, in general, and a dispute resolution system, in particular, would work in a libertarian society.
Check out Schaeffer Cox, the Fairbanks Militia and their common law court system run on silver and juries.
They have a simple legal system they have been testing out, and it seems to have promise. There is only so much one can learn from reading intellectuals, academics and ideologues. A working court, solving real issues and confronting real challenges is going to be much more robust than pen to paper theorizing.
cr113:A collects stamps. B collects advanced weaponry. B wins. This is why even with all it's faults we still need minimal government. You can have all the private security firms you want but that doesn't resolve the dispute. The loser of a serious dispute is never going to submit to punishment if he has superior firepower. You think a powerful gang leader is going to voluntarily go to jail if he is found guilty by some private court? And how does the average person on the street even know the facts of the case? Maybe the gang leader was innocent? Also the whole notion of being ostracized is silly. Next time you shop at Walmart see if you can tell who should be "ostracized".
With all due respect, I think this is a blatant case of both strawmanning and context-dropping.
The strawmanning occurs from assuming that B would necessarily "win" if he collects "advanced weaponry" and that "the loser of a serious dispute is never going to submit to punishment if he has superior firepower". However, there is no certainty here or with anything else in the future.
The context-dropping occurs from implicitly assuming that the way things would be in a free-market society must be the same as the way things are today. That's a simple non sequitur. If you're making that a premise, I simply don't buy it. Otherwise, if it depends on other premises, what are they?
Keep in mind that only the most naive libertarians believe that a free-market society must have no coercion whatsoever.
cr113:A collects stamps. B collects advanced weaponry. B wins.
Not if B wants to send a letter.
cr113:Also the whole notion of being ostracized is silly. Next time you shop at Walmart see if you can tell who should be "ostracized".
Ostracism as understood on these forums and ancaps is different from what ostracism in a free market will likely be. In a free market for law, there will be those who are protected by law, and those who are not (out law). Those who are outside the law, cannot expect equitable treatment by those participating within a lawful order.
Lawful and legal are not the same thing, and until people understand that, it is pointless to try to debate how a free market in defense will work. The entire focus on PDAs as a business model, instead of a lawful order is a critical error.
Autolykos: "The strawmanning occurs from assuming that B would necessarily "win" if he collects "advanced weaponry" and that "the loser of a serious dispute is never going to submit to punishment if he has superior firepower". However, there is no certainty here or with anything else in the future."
Notice that I wrote, "serious dispute". Of course if you get ripped off on ebay for a few hundred bucks you're not going to go to war. I'm talking serious disputes. The most obvious being murder. Someone accused of murder and sentenced to death or life in prison is not going to comply if they have superior firepower. It's not about economics. It's self preservation.
Dispute resolution is fundamentally differerent from trade. Trade is a win-win situation that does not involve the use of force. Dispute resolution requires the use of force (or the threat of it). That's why you can't leave dispute resolution to the free market. The free market can't force the resolution on a powerful party.
cr113:Someone accused of murder and sentenced to death or life in prison is not going to comply if they have superior firepower. It's not about economics. It's self preservation.
If they do not comply, they will be outlaw. They will need to have superior firepower not just to the claimant, but to everyone within that lawful order. Not only will people not trade with them, they won't be able to claim the same rights as those people who act within the lawful order. They will be no different than a stray dog. A stray dog with fangs and rabies, but still just a mongrel to be put down.
Failing to abide by a court that seeks to restore both the victim and the aggressor, restoring the latter's standing in the community by making good on a bad act, means that individual has no interest in participating in good faith in a community. They are persona non grata. They, and their property become a target (opportunity) for everyone.
liberty student: "If they do not comply, they will be outlaw. They will need to have superior firepower not just to the claimant, but to everyone within that lawful order. Not only will people not trade with them, they won't be able to claim the same rights as those people who act within the lawful order. They will be no different than a stray dog. A stray dog with fangs and rabies, but still just a mongrel to be put down."
First off how would you know they were guilty? Maybe the murder charge was frivolous. Second, how would you recognize these supposed "outlaws"? You think the cashier at Walmart is going to say "Hey, I can't sell you anything, you're an outlaw." This idea that people will be outcast is silly. The only prayer that has of working is in a small village of a few hundred people.
cr113:First off how would you know they were guilty? Maybe the murder charge was frivolous.
Maybe it was frivolous. That is why we go to court. To resolve claims.
cr113:Second, how would you recognize these supposed "outlaws"? You think the cashier at Walmart is going to say "Hey, I can't sell you anything, you're an outlaw."
They might not get into the store in the first place. Someone might capture them on the road outside. They might not be able to leave their house. But yes, it is very possible that the cashier could check that someone was on the do not serve list. They do exist you know. People do get banned from stores.
cr113:This idea that people will be outcast is silly. The only prayer that has of working is in a small village of a few hundred people.
It's actually not silly, and with digital databases and internet communication, it is very easy to create social, political, financial and legal outcasts. Look at Julian Assange. He's not an outcast by a lawful order, but he has been rendered an outcast by authoritative bodies.
So much so, that he has delivered himself to one of these bodies to face what are clearly frivolous claims.
I want to add, that without some knowledge of jurisprudence, it is very hard to debate whether a minimal state or panarchistic system (polycentric legal order) is more or less feasible.
liberty student: People do get banned from stores.
Ask him if he knows why the're meeting in the dessert?
http://www.youtube.com/user/MrLondon#p/u/3/JD44ouab5pc
liberty student: "They might not get into the store in the first place. Someone might capture them on the road outside. They might not be able to leave their house. But yes, it is very possible that the cashier could check that someone was on the do not serve list. They do exist you know. People do get banned from stores."
We'll have to agree to disagree on this one. I'm not buying it. Peace!
I appreciate the time you have taken to respond to my post. It is helpful.
When I ruminate about libertarian/Austrian theory, the logic leads me, quite compellingly, to accept the idea of a state-less society. I have, however, studied law/jurisprudence for more than twenty years and practiced law for more than fifteen years. (Liberty Student, I am not sure if this meets your definition as having "some knowledge of jurisprudence." I am not sure myself. The longer I have studied law, the more I realize how little I actually know.) My experiences in practicing law and being involved in dispute resolutions are what prompts my questions. I take the theories and try to understand how it would actually work. When I do this, I am less sure that a state-less society is possible and lean towards the idea of a minimal state. Here is why:
What makes the law different from other things that we use to guide our lives is the ability to compel obedience or impose punishments for disobedience by force. Without this force, law is is no different than a set of ethics or moral code. So, the question that follows for me is, in a state-less society who will exercise this power to enforce the law? Because it is the nature and disposition of nearly all people who have power to seek more power and exercise that power improperly, then in a state-less society how will that power be limited and controlled in enforcing the law? These issues come to a head in dispute resolution proceedings. I understand these are broad questions. This is why I am looking for books and papers on these issues. While the discussions in these forums are helpful, I am looking for a more in depth analysis than I think we can achieve here.
Here are three general scenarios involving dispute resolution issues.
First scenario, there is a genuine dispute. All parties agree that a wrong has occurred and that someone is entitled to compensation. The disputes center on who was wronged, who committed the wrong, the extent of the compensation, or some combination of these. Most of these types of disputes are settled through negotiations because of litigation costs and risks. Most parties in this scenario willing submit to the dispute resolution process because they want the matter resolved. Because most settlements are negotiated, which almost always includes assurances that compensation will be paid, compelling payment is not an issue. In a state-less society, I think this will continue to occur. I think in a state-less society even more cases will be settled by negotiation because the non-prevailing party would bear all of the litigation costs. So, the need to compel someone to participate in a dispute resolution process and to honor the decision resulting from the process is not really an issue in this scenario.
Second scenario, the person asserting the claim is not really injured and is advancing, what we call today, a nuisance lawsuit, or the person is actually injured, but is mistaken as to who is liable for those injuries. In a state-less society, these types of claims would be even less frequent. A nuisance lawsuit today usually involves a tort (personal injury) claim. Most US courts in these lawsuits do not impose all of the litigation costs on the non-prevailing party. When they do, it is usually just court costs, but almost never attorney's fees. So, the uninjured party asserts the claim knowing its risks of having to pay for asserting this false claim is minimal. The other party settles the case to avoid litigation costs. Because in a state-less society the non-prevailing party would bear all of the costs of litigation, nuisance lawsuits would be even more discouraged. For this same reason, a claimant with a valid injury will make a greater effort to make sure she is suing the right person. So, the need to compel someone to participate in a dispute resolution process and to honor the decision resulting from the process is not a significant issue here.
Third scenario, a person has a valid claim and is entitled to compensation. The liable party is known, but refuses to accept liability or to pay compensation. I do not think this would be a widespread problem in a state-less society. I understand what has been discussed by others in this thread. Most people will, as they do now, compensate those they have injured whether though insurance or otherwise because of their ethics, moral codes, desire to maintain their standing in society, etc. For this group of people, the law is basically irrelevant. It is their ethics or sense of moral obligation, not the law, that compels them to compensate those they have injured. But, there are those who will not compensate those they have injured, submit to a dispute resolution process, or honor the results. Society must be able to address this scenario if the law is to have any validity at all. If an injured party does not have a process to compel the liable party to make restitution, then lawlessness is encouraged. Contracts can be beached without consequence. People will be less careful in their interactions with others since they will not be held liable for even their negligent acts, let alone intentional acts. This is the issue I am trying to get at.
I have not found a historical example of a state-less society with a well-developed dispute resolution system. The closest examples I have found are intermittent periods during the common law era of England when the monarch and aristocracy was not so meddlesome. Even during those periods, there was still a minimal state. If a person refused to submit to dispute resolution process, then the injured party would have the state-sponsored court issue an order to compel the liable party to participate. The local sheriff or constable would deliver the order. If the liable party lived outside the court's or sheriff's jurisdiction, then the court or sheriff would involve the local court or sheriff who did have jurisdiction. One way or another, the injured party could compel the liable party to submit to the process. If the liable party refused to honor the judgment of the court to pay compensation, then a sheriff could execute the judgment and take property from the liable party and give it to the injured party or sell it and given the proceeds to the injured party. This procedure was of course subject to abuse. The common law (state) courts developed over time safeguards to minimize that abuse.
I am sorry for this long version of my questions. I do not expect libertarian theory to be able to address every conceivable hypothetical. I am just trying to get a better understanding of current libertarian thought on how law might be enforced in a state-less society as opposed to a minimal state society. Most of what I have read and studied about law in a libertarian society address the issues of what the law should be. There is plenty to read and study on this subject. Now, I am looking for how the law will be enforced and disputes resolved in a libertarian society. I have found some writings. These have been summarized, in part, by what has already be posted in this thread. I am just looking for systematic approaches or analysis in books or papers that answer my questions and perhaps the broader question of how laws would be enforced in a state-less society? Who will exercise the power to enforce those laws in a state-less society? How will that power be controlled in a state-less society?
If such books or papers are lacking, then maybe there is room for contribution to the subject by a novice like me. Thanks again for those who have addressed my questions. I really appreciate it.
"What makes the law different from other things that we use to guide our lives is the ability to compel obedience or impose punishments for disobedience by force."
That's basically the same conclusion I came up with. In the scenarios you gave I think you left out the most obvious one. Criminal disputes. I think criminal disputes really highlight the differences between anarchism and minarchism.
The only book I know of that mentions this is Ayn Rand's Capitalism the Unknown Ideal. But she only mentions anarchism in a few paragraphs. It's a great book though.
cr113:Notice that I wrote, "serious dispute". Of course if you get ripped off on ebay for a few hundred bucks you're not going to go to war. I'm talking serious disputes. The most obvious being murder. Someone accused of murder and sentenced to death or life in prison is not going to comply if they have superior firepower. It's not about economics. It's self preservation.
I seriously doubt that death or life imprisonment per se would be punishments for murder in a free-market society. First off, killing the murderer removes any possibility for him to provide restitution. Second, while indentured servitude may occur in order to pay off restitution, there would be no particular length of time required.
cr113:Dispute resolution is fundamentally differerent from trade. Trade is a win-win situation that does not involve the use of force. Dispute resolution requires the use of force (or the threat of it). That's why you can't leave dispute resolution to the free market. The free market can't force the resolution on a powerful party.
How are you defining "the free market"? It's de facto inaccurate to state or claim that a government has a monopoly over violence or the use of force within its territorial boundaries. Obviously people can and do wield violence or use force without government approval or permission.
If you want to consider coercion to be outside of "the free market", that's fine. In that case, any time someone defends his property against an aggressor, he is not engaging in a free-market activity. But that in no way means that there must be one and only one "ultimate authority" which judges all of his disputes. (Strictly speaking, that doesn't exist even today. The world is divided among various governments.)
Finally, let me ask you this: does the loser of a serious dispute really have superior firepower if the multitude of people around him are all against him? Presume that all of those people are themselves armed.
cr113:That's basically the same conclusion I came up with. In the scenarios you gave I think you left out the most obvious one. Criminal disputes. I think criminal disputes really highlight the differences between anarchism and minarchism.
It seems that you're defining "criminal disputes" as "disputes in which the losing party is punished by violence, imprisonment, or both". If so, then I'd say that, in all likelihood, there would be no criminal disputes in a free-market society. The "punishments" for all disputes would be restitution payments. In other words, there would be no crimes, only torts. Does this make sense?
Autolykos "It seems that you're defining "criminal disputes" as "disputes in which the losing party is punished by violence, imprisonment, or both". If so, then I'd say that, in all likelihood, there would be no criminal disputes in a free-market society. The "punishments" for all disputes would be restitution payments. In other words, there would be no crimes, only torts. Does this make sense?"
I guess my definition is a little fuzzy. When I said criminal disputes I had in mind things like murder, rape and armed robbery vs contractual type disputes where there is no violence. So maybe "disputes involving violence" is a better way to say it?
That's fine with me.
Let's say we both live in a free-market society. I'm a shiftless bum living on the streets, while you live in a comfortable house. One day I decide to break into your house to steal your stuff or maybe even hold you hostage. You find me, put a gun in my face, and order me in no uncertain terms to leave. I do so.
Have you coerced me in that situation? Absolutely. The question is whether I deserved it. It's not that all coercion is bad or wrong, but that some coercion is. Whether a case of coercion is or not is a matter of morality and law. Note, however, that this means coercion can occur in a free market.
Make sense?
cr113:This is why even with all it's faults we still need minimal government. You can have all the private security firms you want but that doesn't resolve the dispute. The loser of a serious dispute is never going to submit to punishment if he has superior firepower.
Apply this logic to the government itself. Then rethink things.
Every decent man is ashamed of the government he lives under - Mencken
cr113: "This is why even with all it's faults we still need minimal government. You can have all the private security firms you want but that doesn't resolve the dispute. The loser of a serious dispute is never going to submit to punishment if he has superior firepower."
gocrew: "Apply this logic to the government itself. Then rethink things."
Government will almost always have the superior firepower over private citizens. Therefore government will almost always be able to force the resolution of a dispute on a private citizen.
Without government the winner of a serious dispute is generally going to be the stronger party, not the party who is in the right.
How would you handle national defense?
I'd avoid the use of the term "always". Things didn't work out for poor Louis the 16th, did they?
And what does "almost always" mean? I suppose it ranges from never right up to always.
K.C. Farmer: "I'd avoid the use of the term "always". Things didn't work out for poor Louis the 16th, did they? And what does "almost always" mean? I suppose it ranges from never right up to always."
If that's your counter argument I claim victory!
Your citizen with superior firepower, and the government you claim is necessary, does not win on force alone. It takes the other side to submit. In fact, the existence of the tyrrant depends upon those he subjects to his tyranny. [The Politics of Obedience by Etienne de la Boetie]
If you're talking about a sociopath, a person who would believe he doesn't require other people to exist, then killing everyone will take him only so far until the rest of society gangs up on him or he dies of disease or starvation. [I, Pencil by Leonard E Read]
A reasonable person with superior firepower would quickly realize that his weapons only get him so far in dealing with other people. If he's unwilling to participate in a dispute resolution and accept the results, then he's accepted the role of outlaw. [Outlaw wikipedia; The Solution by Schaeffer Cox]
Your argument seems to suggest that government is required for there to be law. This is simply not the case. It's a common error for most unfamiliar with the Anarcho-Capitalist position to make this assumption.
The dispute resolution that an Anarcho-Capitalist society would have would be the voluntary one most likely utilizing common law similar to what's described in Cox's presentation. Everyone in this society would have the choice to either live with the protection of the law or without it. I think the entire concept of outlawry has been lost for the modern person who accepts the death penalty as the harshest punishment.
The OP asked a question on contract law, which is covered under common law. Opting out of the decision means that individual has chosen to be an outlaw rather than accept the judgement. The society doesn't force him to do something he has not already agreed to do. Enforcement is a non-issue. An offender in such a position wouldn't be caught dead in Walmart or any other public place. He'd most likely flee to another place in hopes of finding a place that will accept him. He has essentially punished himself for being unreasonable and failing to live up to what he said he'd do.
So, is imprisonment or the death penalty any better? What minarchist solution do you subscribe to, and how do you entend to enforce it?
I think KC Farmer has just about nailed it. cr113, you've not responded to anything in my post or answered KC Farmer's post. Why don't you take a look at these?
To be fair, Schaeffer Cox is arguing for a minarchist government, however the same structure of law may be applied to the Anarcho-Capitalist society. The point made was to show how the common law works within a voluntary way.
David D. Friedman on Legal Systems Very Different from Ours.
Michael Van Notten's The Law of the Somalis.
Law, Legislation and Liberty by Hayek (someone has this available as a Torrent here).
Freedom and the Law by Bruno Leoni.
To me, the essential distinction is that between statutory law and case law or customary law. Once it is understood that statutes are never and were never necessary to the production of law, all else* follows. I'll respond to your detailed scenarios so you can get more of an idea of my position (I'm actually studying this subject - as an amateur - so I do have some opinions on it).
*"all else", for me personally, is not "liberty" per se, since everyone has a different idea what "liberty" means, which is of no use in a court of law... instead, the "all else" means that unitary law is possible! And this is great news because the system of dual law that characterizes our present legal order (and has characterized the legal orders of "civilized" societies for the last half-dozen millenia) is, by definition, tyrannical and oppressive.
There is a good part on DROs here:
http://freedomainradio.com/board/blogs/freedomain/archive/2008/11/14/practical-anarchy-the-book.aspx
Here are three general scenarios involving dispute resolution issues. First scenario, there is a genuine dispute. All parties agree that a wrong has occurred and that someone is entitled to compensation. The disputes center on who was wronged, who committed the wrong, the extent of the compensation, or some combination of these. Most of these types of disputes are settled through negotiations because of litigation costs and risks. Most parties in this scenario willing submit to the dispute resolution process because they want the matter resolved. Because most settlements are negotiated, which almost always includes assurances that compensation will be paid, compelling payment is not an issue. In a state-less society, I think this will continue to occur. I think in a state-less society even more cases will be settled by negotiation because the non-prevailing party would bear all of the litigation costs. So, the need to compel someone to participate in a dispute resolution process and to honor the decision resulting from the process is not really an issue in this scenario.
I agree with everything except your assumption that the non-prevailing party will bear all of the dispute costs. It may be the case that a "lawsuit insurance" industry might emerge and lawsuit insurers would handle the costs. This is not a very important point except that I like to emphasize the importance of the market in deciding what is the most efficient way to produce goods and services.
We can at least say that if everybody had to pay for their own damned attorney, they'd think twice before suing. The government's courts subsidize certain classes of suits and there's no opt-out since the government's courts are the only courts.
Law originated in the peaceful settlement of disputes using verbal argument that would otherwise have been settled through martial contest. If a person refuses to settle a dispute lawfully, then they are implicitly opting for martial contest, in other words, "no holds barred" war. You might believe that the whole society would burn itself down in a gigantic Hatfield-McCoy feud but I think the very existence of law testifies to the falsity of this belief (human ancestors did not have the ability to speak, so they did not have law, yet somehow, they managed to survive and eventually produce us).
Of course, I do not think that "no holds barred" would really be "no holds barred", i.e. the store owner beheading a child who stole a pack of gum and cannot repay it. Instead, I think a body of case law would emerge to regulate what sorts of retaliatory actions are legally justifiable in response to those who refuse legal means to resolve their disputes. For example, if you burned my house down and refuse to pay for the damages, perhaps I am justified to burn down your barn or your unoccupied rental home (but not your place of dwelling), or (forcibly) seize up to 3 of your vehicles, etc. If you come back later and sue my for my retaliatory actions, as long as I stayed within the legal precedent for such things, you won't have a leg to stand on. You get the idea.
I have not found a historical example of a state-less society with a well-developed dispute resolution system.
Watch the Friedman video. The Pashtun law of the Afghans and the Xeer law of the Somalis are pretty damn close to stateless legal systems and they exist today. Medieval Iceland is frequently cited by ACs, as well as many tribal law systems. As David Friedman says about the performance bond, we (the West) are about 1,000 years behind the state of the art in legal theory since our courts largely do not recognize performance bonds.
The closest examples I have found are intermittent periods during the common law era of England when the monarch and aristocracy was not so meddlesome. Even during those periods, there was still a minimal state. If a person refused to submit to dispute resolution process, then the injured party would have the state-sponsored court issue an order to compel the liable party to participate. The local sheriff or constable would deliver the order.
Yeah, but it always depended on who the liable party was... if you were a commoner trying to sue a noble, forget about it. As always, the state introduces two-tiered law... dual law.
If the liable party lived outside the court's or sheriff's jurisdiction, then the court or sheriff would involve the local court or sheriff who did have jurisdiction. One way or another, the injured party could compel the liable party to submit to the process. If the liable party refused to honor the judgment of the court to pay compensation, then a sheriff could execute the judgment and take property from the liable party and give it to the injured party or sell it and given the proceeds to the injured party. This procedure was of course subject to abuse. The common law (state) courts developed over time safeguards to minimize that abuse. I am sorry for this long version of my questions. I do not expect libertarian theory to be able to address every conceivable hypothetical. I am just trying to get a better understanding of current libertarian thought on how law might be enforced in a state-less society as opposed to a minimal state society. Most of what I have read and studied about law in a libertarian society address the issues of what the law should be. There is plenty to read and study on this subject. Now, I am looking for how the law will be enforced and disputes resolved in a libertarian society. I have found some writings. These have been summarized, in part, by what has already be posted in this thread. I am just looking for systematic approaches or analysis in books or papers that answer my questions and perhaps the broader question of how laws would be enforced in a state-less society? Who will exercise the power to enforce those laws in a state-less society? How will that power be controlled in a state-less society? If such books or papers are lacking, then maybe there is room for contribution to the subject by a novice like me. Thanks again for those who have addressed my questions. I really appreciate it.
I am working on a paper on this subject. Perhaps we could communicate via email and share thoughts. I'm no lawyer but a lot of the subject matter does not actually require legal expertise since it's more of a social problem, a meta-legal problem, than an actual legal problem.
cr113: Government will almost always have the superior firepower over private citizens. Therefore government will almost always be able to force the resolution of a dispute on a private citizen.
And when the government is in the wrong? Who shall resolve the dispute and force the resolution on the government?
Anarchy and the Law is a fantastic anthology of writings on the subject. Many of the essays it contains can be found online. I'd start with Rothbard and Friedman.
Bruce Benson's The Enterprise of Law is also excellent.
Government Explained 2: The Special Piece of Paper
Law without Government
Clayton:The Pashtun law of the Afghans and the Xeer law of the Somalis are pretty damn close to stateless legal systems and they exist today. Medieval Iceland is frequently cited by ACs, as well as many tribal law systems.
It seems that the state paradigm/problem is merely one of size and realm. With development of technology and trade, the realm of human interaction expanded beyond the village, tribe, and valley of one's birth. States may have evolved as optimal, realm-expanding descendants of tribes (and other small close-knit communities with uniform traditions). They maintained and expanded the order/incentive-generating (transaction cost-minimizing) limitations of individual agents' actions necessary for production and exchange to flourish beyond the tribal realm.
Regardless of size or era, a productive majority implements coercion-based incentive schemes over a destructive minority in order for society to flourish -- tradition and ostracism in tribes, laws and enforcement of property rights in states.
Just some (not fully developed) thoughts...
Z.
Clayton:We should expect that, in a natural order society, security services would emerge that would put most people most of the time on a fairly equal footing, in terms of their ability to fight (my PDA vs. your PDA ... they're much more likely to be well-matched than you vs. me).
While it may ultimately come down to their "ability to fight", I think there is much more to say here. If we assume the two PDAs are both large and have powerful weapons, they are obviously not going to have a war over a simple dispute like a petty theft. Which PDA has greater ability to fight is irrelevant in this case; war is not on the table, and that is fully understood by both sides. This conflict will be resolved by one PDA paying off the other. In this case, what is comes down to is "ability to pay", or who has the greatest bargaining power in negotiations.
Clayton:I believe, for example, that this makes it impossible that arbitrators could "impose" the death penalty, since no one would ever accept certain death versus any other alternative.
I think this is incorrect. I think you've reached this incorrect conclusion by focussing solely on "ability to fight" rather than "ability to pay" as well. Also, you appear to not consider that negotiations could (and probably will) happen between PDAs prior to any specific conflict. If I may quote David Friedman:
David Friedman:We can each have our preferences reflected in the bargaining demands of our respective agencies. If the opponents of capital punishment feel more strongly than the proponents, the agencies will agree to no capital punishment; in exchange, the agencies that want capital punishment will get something else. Perhaps it will be agreed that they will not pay court costs or that some other disputed policy will go their way. One can imagine an idealized bargaining process, for this or any other dispute, as follows: Two agencies are negotiating whether to recognize a pro- or anti-capital-punishment court. The pro agency calculates that getting a pro-capital-punishment court will be worth $20,000 a year to its customers; that is the additional amount it can get for its services if they include a guarantee of capital punishment in case of disputes with the other agency. The anti-capital-punishment agency calculates a corresponding figure of $40,000. It offers the pro agency $30,000 a year in exchange for accepting an anti-capital-punishment court. The pro agency accepts. Now the anti-capital-punishment agency can raise its rates enough to bring in an extra $35,000. Its customers are happy, since the guarantee of no capital punishment is worth more than that. The agency is happy; it is getting an extra $5,000 a year profit. The pro agency cuts its rates by an amount that costs it $25,000 a year. This lets it keep its customers and even get more, since the savings is more than enough to make up to them for not getting the court of their choice. It, too, is making a $5,000 a year profit on the transaction. As in any good trade, everyone gains.
One can imagine an idealized bargaining process, for this or any other dispute, as follows: Two agencies are negotiating whether to recognize a pro- or anti-capital-punishment court. The pro agency calculates that getting a pro-capital-punishment court will be worth $20,000 a year to its customers; that is the additional amount it can get for its services if they include a guarantee of capital punishment in case of disputes with the other agency. The anti-capital-punishment agency calculates a corresponding figure of $40,000. It offers the pro agency $30,000 a year in exchange for accepting an anti-capital-punishment court. The pro agency accepts. Now the anti-capital-punishment agency can raise its rates enough to bring in an extra $35,000. Its customers are happy, since the guarantee of no capital punishment is worth more than that. The agency is happy; it is getting an extra $5,000 a year profit. The pro agency cuts its rates by an amount that costs it $25,000 a year. This lets it keep its customers and even get more, since the savings is more than enough to make up to them for not getting the court of their choice. It, too, is making a $5,000 a year profit on the transaction. As in any good trade, everyone gains.
I think this is an extremely important idea.
Taking a step back for a moment, we know that what gets produced in any free market is ultimately determined by public opinion. The relative amount of capital, land and labor devoted to the production of one type of food relative to another type of food is dependent on relatively how much each type of food is demanded, for example. So we can expect the same thing with regard to what laws will be produced in anarchy.
The kinds of laws that get produced will be the kinds of laws that people demand. Public opinion will be reflected in the laws that are produced. The barganing process described by Friedman is the mechanism through which this will take place. This is how individuals' opinions on ethics and justice are translated into laws in anarchy.
Clayton:Hence, the most severe punishment an arbitrator could suggest is outlawing/ostracism (which I would expect would result in the wronged party - and his family - visiting vigilante justice on the party in the wrong).
I don't see how that follows at all. But anyway it contradicts what you said earlier about restitution / retribution being enforced.
Trulib, how are you defining "laws"? How do you believe such "laws" would be "produced" in a stateless society?
You can quote David Friedman, if you must, but I'd prefer you use your own words. Thanks.
I wonder why no has recommended Bob Murphy's Chaos Theory. It's a concise, excellent book. It deals with the notion of private law and private defense.
I Samuel 8
Autolykos:Trulib, how are you defining "laws"? How do you believe such "laws" would be "produced" in a stateless society?
Laws are produced by arbitrators through the resolving of conflicts. People demand laws because they want some assurance that if they are ever involved in a conflict, they will be able to resolve it peacefully. They also demand security and insurance. I believe firms - referred to as PDAs - will offer combined packages of law, security and insurance. These firms will compete with each other over many things, but one of them will be the particular content of the laws they produce. That is, the way they will decide to resolve any given conflict; what they consider a "crime".
We can examine conflicts in two categories: 1) conflicts over the particular events, or 2) conflicts over the general principles.
The first case has been adequately dealt with by Rothbard and others. Suppose Ben accuses Adam of stealing his apple. Adam and Ben belong to different PDAs. The first thing the PDAs will need to agree on is the general principle: who was the legitimate owner of the apple and does the accusation constitute aggression (was it a violation of a legitimate property boundary)? We can suppose both PDAs agree that Ben, the accuser, was the legitimate owner, and that, if Ben's accusations are true, it would indeed be a crime, punishable by paying say 5 apples in compensation. The only debate then is: did Adam actually steal the apple? Both PDA's will investigate the circumstances and if they disagree as to the particular events, they will turn to a third court, which also recognizes apple-stealing as a crime and that 5 apples is suitable compensation, and they agree to abide by its judgment of the particulars. Simple.
The more interesting case is when the PDAs conflict over the general principles that guide their resolutions of conflicts, i.e. the content of the laws they produce. This was not examined by Rothbard, but Friedman does consider it. Suppose the two PDAs agree entirely as to the particular events: Adam did take the apple, which Ben had homesteaded earlier. Except while Ben's PDA bases its laws on the principles of homesteading and voluntary exchange (i.e. it is a libertarian court), Adam's PDA is nonlibertarian and does not base its laws on the principle of homesteading. It uses different principles to assign property rights. Whatever these principles may be, they lead Adam's PDA to conclude that Adam was the rightful owner of the apple, so even though there is agreement as to the particulars, Adam's court does not consider that a crime has taken place at all.
So what are these PDAs to do? There is no point getting another court involved, because there is no disagreement as to the particulars of what took place; the only issue is which PDA's laws will apply in this particular case. This is where bargaining power comes in. The PDAs are not going to go to war over an apple; one of them will in effect "pay off" the other one so that its laws apply in this case. But this would more efficacously be negotiated and contracted in advance of any particular conflict taking place. 2 large PDAs which operate according to different general principles (such as one being pro capital punishment and one being anti) will be prepared for these types of conflicts in advance; there will be an agreement in place so there is no need to negotiate afresh after every such case of conflict between their clients about which law set will apply. Whether Ben is entitled to compensation from Adam is determined by what agreement their PDAs had in place for cases of apple theft between their clients, and hence by the bargaining power of their respective PDAs.
Capital punishment is a divisive issue, even among libertarians. With a free market in law, whether capital punishment is ever enforced, and under what circumstances, will be determined by the bargaining power of pro-capital punishment courts / PDAs relative to the bargaining power of anti-capital punishment courts / PDAs. In turn, this will be determined by the relative profitability of the PDAs, so ultimately by consumer demand, i.e. public opinion about when, if ever, capital punishment should be enforced.
Public opinion will be reflected in the laws that are produced. The barganing process described by Friedman is the mechanism through which this will take place.
I think you're conflating law with individual legal cases. In a customary law system (which I assert any natural order law system must be), individual arbitrated decisions have no normative force, on their own. The "weight" which previously decided cases carry, under customary law, is that those decisions worked, that is, prevented further fighting.
I don't expect we'll agree because I reject egoistic libertarianism which usually leads to this sort of ruggedly individualistic view of law. Law is just one attribute of human culture and it dovetails in with every other attribute of human culture. Most importantly, it dovetails with family, community and other forms of social organization which produce small-scale social order without the costs and complexities of formal law. It is my view that egoistic libertarianism is blind to social structure above the scale of the individual.
I don't understand why ostracism is so hard for some to understand. It's a perfectly simple concept for a community to adopt and employ and we have several historical examples of such behavior inside the market economy.
Go ask an ex-con or a known sex offender how easy it is for them to get a job of desired choice. If business's were allowed to practice more discrimination I wouldn't be surprised of ex-con's and sex offenders given a very limited number of options as a consumer as well.
I don't understand why ostracism is so hard for some to understand. It's a perfectly simple concept for a community to adopt and employ
I think there is a public-choice problem with ostracism... it requires that basically everyone observe the ostracism. Clearly, it is possible for voluntary communities to develop a robust system of ostracism, the Amish are ample proof of that. But, at the largest scale, I do not think ostracism can be the "final punishment." Shunning is an insufficient response to murder and we know this because humans are evolved to want to violently retaliate against those who commit violent crimes. Think of two animals from the same non-human species getting in a fight to the death. Do the genetic parents or other relatives of the dead animal try to retaliate against the "responsible" animal? As far as I know, deadly retaliation for violent intra-species actions is unique to humans. I think the pacifist-libertarian ideal of social organization is pollyannaism.