Law without Government (video series)

Jacob:

I went lollerblading.

 

 

Clayton - thanks for the compliments,

There may be some merit in using the terms law and laws as you suggest.

I like speaking of laws as a "product" that is supplied, demanded, produced and consumed because it makes it clear that you can apply general economic principles to the law industry. (I suppose you would call it the "settlement industry" or "arbitration industry"?). For example we have "bad laws" or "bad law" right now, partly due to the calculation problem... even if we assume government tries its very best to produce court settlements in accordance with individual opinions on justice, it can't, because it can't calculate.

Presumably "bad laws" is redundant to you, as you would say "all laws are bad"? But also "law is good"? In your vision of a free society, there is "law" but "no laws"? And does it still make sense to talk of a "law monopolist", or must you instead talk of an "arbitration monopolist"? At the moment, I feel your definitions just add confusion to what is already a difficult topic to explain.

Also: How do you define order? Would the phrase "order without law" be meaningful with your definition of law? When was there order and when was there law (if ever) in my desert-island story?

There may be some merit in using the terms law and laws as you suggest.

I like speaking of laws as a "product" that is supplied, demanded, produced and consumed because it makes it clear that you can apply general economic principles to the law industry.

Sure, and I agree with your sentiment here. I think we can speak of a "law industry" and "law services/legal services" to refer to the line of work which lawyers and arbitrators ply. A lawyer sells his expert knowledge of the law and arbitration. But lawyers don't make law. An arbitrator sells his spotless reputation and expert dispute-resolution skills but he no more makes law than a lawyer does.

It is the disputants who ultimately "make" law. I put "make" in quotes to denote that this is not an intentional process but is, rather, a by-product of the immediate task at hand - settling the dispute. I see this process as a direct analogue to the way prices emerge. Each individual buyer and seller is contributing to the "setting" of the market price but no one actually sets the price. The price just emerges from the independent, uncoordinated actions of many individuals involved in exchange. If I sell you an apple for $1, I didn't make the price of apples $1. But the fact that you were able to purchase an apple from me for $1 is part of the reason that apples do not go for $1,000 each. No one settlement of a dispute sets the customary terms for settling disputes. But out of many settled disputes there emerges a range of possible terms of settlement. If I stole your car, you would never agree that I should get off scot free. But then, you probably wouldn't demand that I be outlawed, either. So, you'd settle for something in between. And you're probably like most people in this regard. When many cases of car theft have been settled, a pattern will emerge and this pattern is what I believe we are referring to when we speak of the law.

(I suppose you would call it the "settlement industry" or "arbitration industry"?).

No, law industry is fine because the primary tool of arbitrators and lawyers in settling disputes is appeal to the law. In other words, let's say I steal your car and you're a particularly vindictive person. You sue me and you demand that I be outlawed so you can hire a bounty hunter to hunt me down and kill me - I think of outlawry as the "death sentence" of free-market law. I stole the car because I was desperate to feed my kids - I'm not an evil person - and I appeal to this in the dispute. You will not listen. My lawyer could ask when has anybody ever been outlawed for stealing one car? If you still will not budge, then arbitration has failed and the matter falls back to our respective security companies. But now the question is between you and your security company... will they accept the legal risk of taking direct, violent action against me (possibly getting involved in violent conflict with my security company) when I had agreed in arbitration to the customary punishment for the crime that I committed and when you are asking for a punishment which no one in the history of the world has ever agreed to bear? Almost certainly not. So, now you're out of luck. By being unreasonable in your demands in arbitration, you've left yourself with no options. You might be able to take me back to arbitration but then you refused on record to agree to the customary punishment which means that I can simply point to that and say "you yourself said you don't want the customary punishment, so I refuse to agree to anything as large or larger than that." In other words, by being unreasonable, you've only cost yourself.

For example we have "bad laws" or "bad law" right now, partly due to the calculation problem... even if we assume government tries its very best to produce court settlements in accordance with individual opinions on justice, it can't, because it can't calculate.

100% agreed.

Presumably "bad laws" is redundant to you, as you would say "all laws are bad"?

Well, all statutes (what are commonly called "laws") are either bad or unnecessary... kind of like how all price controls are either bad or unnecessary. If you put a price cap of 1 penny on apples, this is bad. If you put a price cap of $1,000 on apples, it's unnecessary.

But also "law is good"? In your vision of a free society, there is "law" but "no laws"?

Yeah, there is law (conventions regarding the reasonable resolution of disputes) but there are no statutes because there is no State to issue them. This is a thought-experimental society, of course.

And does it still make sense to talk of a "law monopolist", or must you instead talk of an "arbitration monopolist"?

The State's courts and the bars constitute a law monopoly because they control who may practice law, that is, who may work in the law industry.

At the moment, I feel your definitions just add confusion to what is already a difficult topic to explain.

I hope I'm clarifying. Arbitrators assist disputants in reach mutually agreeable terms of settlement, otherwise called "a settlement." Many settlements over time results in patterns of customarily accpetable resolutions. These patterns are what I believe to be law per se.

Also: How do you define order? Would the phrase "order without law" be meaningful with your definition of law?

Kind of. The boundary between law and social norm is very fuzzy. This is especially obvious in the old common law systems where social norms were dominant arguments in determining resolutions to disputes. Social order is possible with only social norms and not law per se. I think the difference between mere social norms and law is the division of labor, that is, the emergence of specialized legal professions such as arbitrators, lawyers, legal historians, legal philosophers, expert investigators, scientific witnesses and so on.

When was there order and when was there law (if ever) in my desert-island story?

A major theme of Mises's work is that cooperation comes naturally to humans. We don't need a big billy-club-in-the-sky thumping us over the heads all day long to keep us from murdering each other to extinction. The division of labor creates a selfish interest in cooperation because participating in peaceful cooperation is simply more enriching than engaging in conflict (the State and certain classes of private crime are notable exceptions to this). (Watch this. Read this. And this.) I think order is present in every 'social' species, humans included. As far as law, I think that it emerged sometime after humans learned to speak and engage in extended reasoning since this is what makes legal arguments unique from, say, poetry.

Clayton -

Nice but my suggestions.

Legislation ≠ law. Nor do rulings or desisions, they are a product as some have suggested. Law / ethics - universal. Seems that you imply it is not. The same - that it can be 'created', not discovered. Which is wrong.
 

 

I part ways with Rothbard/Hoppe on the objectivity of ethics (and, therefore, law). Everyone sees it their own way and conflicts can arise whenever people disagree about something, even if they have to create the scarcity in order to fight over it ("I don't care that there are infinitely many apples available, I want the very apple in your hand"). Reason is a precondition to law but law is not the product exclusively of reason. In fact, feelings and emotions play a huge role in determining what people will settle for (for example, victims are more likely to demand lesser damages if they believe the tort was unintentional but not grossly negligent).

Reason is not some divine-like entity dwelling in the aether from which we download our inspired legal truths. Hoppe's position suggests that there are just a handful of simple rules that, if followed, will result in a world where conflict is automatically minimized - just by following these handful of rules. The fact of the matter is that the rules required to prevent and avoid conflicts are immense and there is no guarantee that any rule-set, however perfect, will not eventually lead to conflicts as circumstances change. Law must be ever-changing along with the circumstances of human affairs.

Clayton -

"I part ways with Rothbard/Hoppe on the objectivity of ethics (and, therefore, law). Everyone sees it their own way and conflicts can arise whenever people disagree about something, even if they have to create the scarcity in order to fight over it ("I don't care that there are infinitely many apples available, I want the very apple in your hand").

Sorry but no.

"Ethics - the validity of the principle of self-ownership and original appropriation - is demonstrably not dependent and contingent upon agreement or contract; and the universality claim connected with Rothbard's libertarianism is not affected in the slightest by the circumstance that moral discussants may or may not always come to an agreement or contract. Ethics is the logical-praxeological presupposition - in Kantian terminology: die Bedingung der Moeglichkeit - rather than the result of agreement or contract. The principles of self-ownership and original appropriation make agreement and contract - including that of not agreeing and contracting - possible. Set in motion and stimulated by the universal experience of conflict, moral discussion and argument can discover, reconstruct, explicate, and formulate the principles of self-ownership and original appropriation, but their validity in no way depends on whether or not this is the case, and if so whether or not these formulations then find universal assent." - Hoppe, Intro to TEOL.
 

"Reason is a precondition to law but law is not the product exclusively of reason. In fact, feelings and emotions play a huge role in determining what people will settle for (for example, victims are more likely to demand lesser damages if they believe the tort was unintentional but not grossly negligent)."

lmao, so what?

"Reason is not some divine-like entity dwelling in the aether from which we download our inspired legal truths. Hoppe's position suggests that there are just a handful of simple rules that, if followed, will result in a world where conflict is automatically minimized - just by following these handful of rules. The fact of the matter is that the rules required to prevent and avoid conflicts are immense and there is no guarantee that any rule-set, however perfect, will not eventually lead to conflicts as circumstances change. Law must be ever-changing along with the circumstances of human affairs."

"One common, flip criticism by opponents of natural law is: who is to establish the alleged truths about man? The answer is not who but what: man's reason. Man's reason is objective, i.e., it can be employed by all men to yield truths about the world. To ask what is man's nature is to invite the answer. Go thou and study and find out! It is as if one man were to assert that the nature of copper were open to rational investigation and a critic were to challenge him to "prove" this immediately by setting forth on the spot all the laws that have been discovered about copper.

Another common charge is that natural-law theorists differ among themselves, and that therefore all natural-law theories must be discarded. This charge comes with peculiar ill grace when it comes, as it often does, from utilitarian economists. For economics has been a notoriously contentious science — and yet few people advocate tossing all economics therefore into the discard. Furthermore, difference of opinion is no excuse for discarding all sides to a dispute; the responsible person is the one who uses his reason to examine the various contentions and make up his own mind.[22] He does not simply say a priori, "a plague on all your houses!" The fact of man's reason does not mean that error is impossible. Even such "hard" sciences as physics and chemistry have had their errors and their fervent disputes.[23] No man is omniscient or infallible — a law, by the way, of man's nature." - Rothbard, TEOL.

I'm sorry, please ellimunate me on a scenario were the laws in the previous post stipulated by Hoppe would be invalidated? Then make the case that Hoppe's position would become untenable.

"Ethics - the validity of the principle of self-ownership and original appropriation - is demonstrably not dependent and contingent upon agreement or contract; and the universality claim connected with Rothbard's libertarianism is not affected in the slightest by the circumstance that moral discussants may or may not always come to an agreement or contract. Ethics is the logical-praxeological presupposition - in Kantian terminology: die Bedingung der Moeglichkeit - rather than the result of agreement or contract. The principles of self-ownership and original appropriation make agreement and contract - including that of not agreeing and contracting - possible. Set in motion and stimulated by the universal experience of conflict, moral discussion and argument can discover, reconstruct, explicate, and formulate the principles of self-ownership and original appropriation, but their validity in no way depends on whether or not this is the case, and if so whether or not these formulations then find universal assent." - Hoppe, Intro to TEOL.

Hoppe's position presupposes the objectivity of boundaries in the physical world. There are no objective boundaries in the physical universe. We can objectively observe different properties in different regions of the physical universe (i.e. temperature in this place is high, but in this place is low, etc.) but that is not the same thing as having objective boundaries. The physicist can say "This is a hydrogen atom, not an oxygen atom" because he is measuring objective attributes of the thing in question. But a judge cannot say, "This is Clayton's car, not Conza's car"  simply by measuring objective attributes of the car. Rather, the judge must utilize human ideas about what constitutes physical boundaries (i.e. the car itself, but not necessarily all the unattached contents of the car) and what constitutes a greater claim to rightful possession ("I had it first" or "I exchanged something for it with its previous rightful possessor", etc.) over a lesser claim to rightful possession ("I like it and I want to have it").

This is easier to see in the case of the human family. A child is human in every sense that an adult is human. Nevertheless, we recognize the right of parents to engage in behavior towards their children that could be aggression if committed against an adult peer. For example, if my 5-year old is about to step out into a busy street, I'm well within my rights to seize his shoulder and bodily drag him back onto the sidewalk, even though it might cause some pain in his shoulder and even though he might be extremely upset about being impeded in his chosen path. If an adult were about to step out onto a busy street, however, I have no business reaching out and seizing that person by their shoulder. I am certainly opening myself up to lawsuit for aggression if the person does not appreciate my good-Samaritanism or, in fact, resents it and is angered by my impeding them on their chosen path.

That the very same action results in two different legal outcomes means there must be a defining difference between the adult and the child. Yet it cannot be DNA. Weight, brain size, age in years, and so on are all perfectly arbitrary categories. The fact is that we accept that parents may fret over their children in ways that they may not fret over the children of others or interfere with other adults because there is something special in the parent-child relationship, that is, the parent has a legitimate interest in preserving his child's life and well-being. Such a recognition is actually contrary to the homesteading/self-ownership principles, that is, it results in legitimized coercion from parents to children.

"One common, flip criticism by opponents of natural law is: who is to establish the alleged truths about man? The answer is not who but what: man's reason. Man's reason is objective, i.e., it can be employed by all men to yield truths about the world. To ask what is man's nature is to invite the answer. Go thou and study and find out! It is as if one man were to assert that the nature of copper were open to rational investigation and a critic were to challenge him to "prove" this immediately by setting forth on the spot all the laws that have been discovered about copper.

But man's nature is really beside the point in a conflict. If a man rapes someone, it is no defense to say "it's in my nature". Even if he trots out all the biological facts that might be used to show that humans have a biological disposition to rape, it is of no use. The fact is that the victim demands restitution as a result of his nature and the terms on which he will agree to settle the matter reveal his nature, they cannot be determined on his behalf by an objective exposition of his nature (by Rothbard, Hoppe or a judge).

And this is the central issue - do the parties to a dispute speak for themselves or does someone else speak on their behalf? In a society without law monopolists, I contend that individuals would always speak on their own behalf except where they are prevented by force or where human custom (as in the case of children, the infirm, mentally handicapped, etc.) dictates that someone else must speak on their behalf. The rules regarding who may speak on behalf of whom would emerge through a process of trial and error.

Clayton -

"There are no objective boundaries in the physical universe."

An excellent video, though I'd say that ignoring democracy and comparing every state with tyranny is not something that is going to be very convincing to non libertarians.

Conza:

Legislation ≠ law.

I agree.  Legislation means statutes, and that's a government thing.  What is your definition of "law" and "laws"?

Conza:

Law / ethics - universal. Seems that you imply it is not. The same - that it can be 'created', not discovered.

Where do I imply it is not? 

Conza:

Also I disagree with defining government in that way, i.e self-governance. If you called it the state, sure.

Interesting.  You feel that a distinction between government and state is worthwhile?  I think Hoppe uses the terms interchangeably.

Conza:

 You also call out anarchy = chaos... come again? No ruler ≠ no rules...

What?  Why wouldn't I "call out anarchy = chaos"?

 

@Phaedros: Care to provide an example of one? 

There is an onjective boundary between the surface of water and the air above it.

http://en.wikipedia.org/wiki/Law_of_identity

Without recognizing boundaries, or identities or separateness, one cannot reason at all. There is obviously an objective boundary between you and me as well.

There is an onjective boundary between the surface of water and the air above it.

http://en.wikipedia.org/wiki/Law_of_identity

Without recognizing boundaries, or identities or separateness, one cannot reason at all. There is obviously an objective boundary between you and me as well.

Well, I beg to differ. We can list the properties of water which water satisfies and we can list the properties of air which air satisfies and we can say "here is air" and "here is water" but there is nothing objective about the distinction itself between air and water... both are made of the same stuff and that stuff is made of the same stuff and so on and so forth down to the quantum foam. That doesn't mean that air and water do not have different properties as a matter of objective fact. They are distinguishable and we can reason about them because the universe obeys the law of identity. But the universe itself does not distinguish between air and water... both are expressions of the same physical reality and follow the same physical laws. It is human brains that distinguish between air and water and impose perceptual boundaries between them.

There is a caveat here... there is a reason why the human brain distinguishes the boundaries it does. It actually comes from the theory of computation... search "Solomonoff induction" for more info. To the extent that we take information to be an objective attribute of the physical world, we can say that the boundaries between physical objects are themselves objective in that those boundaries represent the most efficient way to encode information about the physical world, that is, to perform induction about the future state of the physical world (which is a primary concern of the human brain - in fact, all brains). But I do not think this is at all what Hoppe or Rothbard have in mind.

Clayton -

Clayton:

An arbitrator sells his spotless reputation and expert dispute-resolution skills but he no more makes law than a lawyer does.

I am arguing that an arbitrator does "make" law, and that he also "produces" law. Lawyers are completely different; they play the relatively trivial role of advisors to the disputants. The arbitrator / judge is the central figure.

Clayton:

It is the disputants who ultimately "make" law.

Yes, but that's a technicality really. We are supposing that the disputants cannot resolve the dispute between themselves. The disputants don't do any "making" ... they are locked at a stalemate, where violence is the only option left besides bringing in a third party. It is the arbitrator who is doing the "making" of the law here. Unless by "making" you include "accepting" or "agreeing to" what the arbitrator says, but this is trivial.

Clayton:

I put "make" in quotes to denote that this is not an intentional process but is, rather, a by-product of the immediate task at hand - settling the dispute.

Yes, I agree. But a by-product is a product. It is produced, albeit unintentionally. Perhaps we could say that Charlie "by-produced" a law?

Clayton:

I see this process as a direct analogue to the way prices emerge.

I agree with your whole analysis here, except I think there is a gap. After the dispute has moved 'up a level' and is between the security agencies, why couldn't one of them simply pay-off the other one? One agency pays the other to stand-down. It is a good trade all round. The agency that makes the payment obviously feels it is worth it as it will get them more customers, and the agency that receives the payment feels the loss of some its customers is worth the money it receives.

Clayton:

I hope I'm clarifying. Arbitrators assist disputants in reach mutually agreeable terms of settlement, otherwise called "a settlement." Many settlements over time results in patterns of customarily accpetable resolutions. These patterns are what I believe to be law per se.

That does help clarify, thank you. I like the idea of "law" being a pattern. I would say that law is a pattern of laws. That is, I use the word laws as a kind of shorthand for the mouthful that is "customarily acceptable resolutions".

Eugene:

An excellent video, though I'd say that ignoring democracy and comparing every state with tyranny is not something that is going to be very convincing to non libertarians.

Thank you.  My target audience is 1) minarchists who find anarchy appealing, but are having some trouble imagining how it could work, and 2) anarchists who have difficulty describing a working free society to others.

I may cover democracy in a later video, but I am hoping viewers will recognize that a democratic government is... a government.  My comparison is government vs. no government.  Democracy changes nothing about what I have said... a democratic government is still an aggressive monopolist that gets to be judge in cases involving itself, and is therefore tyrannical.

I am arguing that an arbitrator does "make" law, and that he also "produces" law. Lawyers are completely different; they play the relatively trivial role of advisors to the disputants. The arbitrator / judge is the central figure.

 

This is certainly true of today's courts... it's all about the superstar sitting on the bench. But how much do you think the current state of affairs (monopoly courts) is shaping your perception of the way things would be in a competitive market in law services? I see no reason why a judge would be any more glorious or vaunted than an engineer or a banker - it would be just another white-collar job.

Clayton:

It is the disputants who ultimately "make" law.

Yes, but that's a technicality really. We are supposing that the disputants cannot resolve the dispute between themselves.

Unaided. If they cannot, then what use is Charlie except to gang up on one side and say, "Aha! we are more than you, so we win!"

The disputants don't do any "making" ... they are locked at a stalemate, where violence is the only option left besides bringing in a third party. It is the arbitrator who is doing the "making" of the law here.

But what reason does either Adam or Ben have to abide by what Charlie says? Just because "Charlie said it"?

Unless by "making" you include "accepting" or "agreeing to" what the arbitrator says, but this is trivial.

 

I think "make" is an overloaded word... it can imply forcing ("he made him go") as well as producing ("he made the cabinets").

Clayton:

I put "make" in quotes to denote that this is not an intentional process but is, rather, a by-product of the immediate task at hand - settling the dispute.

Yes, I agree. But a by-product is a product. It is produced, albeit unintentionally. Perhaps we could say that Charlie "by-produced" a law?

 

But it's not Charlie who's doing the producing or by-producing... it's Adam and Ben. Charlie is just a facilitator. Charlie says things like "Well, in cases like this, people usually divide the apple in half. I recommend that you both agree to divide it in half or you're going to end up in a fight, that's what happened when Derek and Eddie refused to divide the apple and look at them now. Do you want to end up like Derek and Eddie?"

Clayton:

I see this process as a direct analogue to the way prices emerge.

I agree with your whole analysis here, except I think there is a gap. After the dispute has moved 'up a level' and is between the security agencies, why couldn't one of them simply pay-off the other one? One agency pays the other to stand-down. It is a good trade all round. The agency that makes the payment obviously feels it is worth it as it will get them more customers, and the agency that receives the payment feels the loss of some its customers is worth the money it receives.

 

I think the security agencies are going to tend to be more legally conservative and more "play by the rules" types than their customers. As Hoppe has pointed out, such agencies will have an incentive to be passive (not start fights, which are expensive) and to provide incentives (as in, lower prices) to their customers to encourage them to play by the rules and keep it cool. So, when a dispute moves up a level, I think it will become even more likely that it will be settled in a customary or "ordinary" way. Depending on the terms of the contract, a security agency might just act in the way you have described, covering a payment for one of its customers and then maybe using its muscle to extract the payment from its customer. Or, it may just drop the customer under breach of contract. Personally, I think this is the most likely scenario since it involves the least risk to the security company. Dropping a trouble-maker from your clientele will make less negative PR than getting involved in a dispute with another security agency and then ending up shooting someone or destroying some property, etc. But we're engaged in pure speculation here.

Clayton:

I hope I'm clarifying. Arbitrators assist disputants in reach mutually agreeable terms of settlement, otherwise called "a settlement." Many settlements over time results in patterns of customarily accpetable resolutions. These patterns are what I believe to be law per se.

That does help clarify, thank you. I like the idea of "law" being a pattern. I would say that law is a pattern of laws. That is, I use the word laws as a kind of shorthand for the mouthful that is "customarily acceptable resolutions".

It still makes me cringe because this just isn't how people use the word. If someone says "That's the law" - even under a customary law system - they mean "you have to do it this way, or you're going to get in trouble." If someone says "you've broken the law against _______", even in customary law, they're saying "everyone who does what you've done gets in trouble if they get taken to law, so you're in big trouble." But if you say "Ben and Adam made a new law", you're implying that the dispute settlement has some kind of normative force to it... everyone after Adam and Ben who gets in a similar dispute over an apple will have to settle it the way Adam and Ben did. Of course, this is not what the settlement means at all. It's just how Adam and Ben settled the matter. What really counts is what happens afterward... did Adam and Ben live happily ever after, or did they end up in a quarrel again? If they lived happily ever after, that's evidence that settling a dispute in the way Adam and Ben did is a good idea. If they ended up in a quarrel again, that's evidence that settling a dispute in the way Adam and Ben did is a bad idea. Arbitrators and lawyers would be professionals whose business it is to be familiar with how disputes in their area of specialty are typically resolved and which kinds of resolutions work well and which are sure to run into trouble down the road. In this way, they facilitate the disputants in coming to a "realistic" terms of settlement that will probably be able to stand the test of time so they don't end up in a fight again or back in court again.

Clayton -

Hoppe's position presupposes the objectivity of boundaries in the physical world. There are no objective boundaries in the physical universe. We can objectively observe different properties in different regions of the physical universe (i.e. temperature in this place is high, but in this place is low, etc.) but that is not the same thing as having objective boundaries. The physicist can say "This is a hydrogen atom, not an oxygen atom" because he is measuring objective attributes of the thing in question. But a judge cannot say, "This is Clayton's car, not Conza's car"  simply by measuring objective attributes of the car. Rather, the judge must utilize human ideas about what constitutes physical boundaries (i.e. the car itself, but not necessarily all the unattached contents of the car) and what constitutes a greater claim to rightful possession ("I had it first" or "I exchanged something for it with its previous rightful possessor", etc.) over a lesser claim to rightful possession ("I like it and I want to have it").

Strawman of Hoppe. Intersubjectively ascertainable boundaries.

    "The answer to the question what makes my body "mine" lies in the obvious fact that this is not merely an assertion but that, for everyone to see, this is indeed the case. Why do we say "this is my body"? For this a twofold requirement exists. On the one hand it must be the case that the body called "mine" must indeed (in an intersubjectively ascertainable way) express or "objectify" my will. Proof of this, as far as my body is concerned, is easy enough to demonstrate: When I announce that I will now lift my arm, turn my head, relax in my chair (or whatever else) and these announcements then become true (are fulfilled), then this shows that the body which does this has been indeed appropriated by my will. If, to the contrary, my announcements showed no systematic relation to my body's actual behavior, then the proposition "this is my body" would have to be considered as an empty, objectively unfounded assertion; and likewise this proposition would be rejected as incorrect if following my announcement not my arm would rise but always that of Müller, Meier, or Schulze (in which case one would more likely be inclined to consider Müller's, Meier's, or Schulze's body "mine"). On the other hand, apart from demonstrating that my will has been "objectified" in the body called "mine," it must be demonstrated that my appropriation has priority as compared to the possible appropriation of the same body by another person.

    As far as bodies are concerned, it is also easy to prove this. We demonstrate it by showing that it is under my direct control, while every other person can objectify (express) itself in my body only indirectly, i.e., by means of their own bodies, and direct control must obviously have logical-temporal priority (precedence) as compared to any indirect control. The latter simply follows from the fact that any indirect control of a good by a person presupposes the direct control of this person regarding his own body; thus, in order for a scarce good to become justifiably appropriated, the appropriation of one's directly controlled "own" body must already be presupposed as justified. It thus follows: If the justice of an appropriation by means of direct control must be presupposed by any further-reaching indirect appropriation, and if only I have direct control of my body, then no one except me can ever justifiably own my body (or, put differently, then property in/of my body cannot be transferred onto another person), and every attempt of an indirect control of my body by another person must, unless I have explicitly agreed to it, be regarded as unjust(ified).[7]" [7]Informal translation from Hans-Hermann Hoppe, Eigentum, Anarchie und Staat (Manuscriptum Verlag, 2005, pp. 98-100; originally published in 1985).

This is easier to see in the case of the human family. A child is human in every sense that an adult is human. Nevertheless, we recognize the right of parents to engage in behavior towards their children that could be aggression if committed against an adult peer. For example, if my 5-year old is about to step out into a busy street, I'm well within my rights to seize his shoulder and bodily drag him back onto the sidewalk, even though it might cause some pain in his shoulder and even though he might be extremely upset about being impeded in his chosen path. If an adult were about to step out onto a busy street, however, I have no business reaching out and seizing that person by their shoulder. I am certainly opening myself up to lawsuit for aggression if the person does not appreciate my good-Samaritanism or, in fact, resents it and is angered by my impeding them on their chosen path.

That the very same action results in two different legal outcomes means there must be a defining difference between the adult and the child. Yet it cannot be DNA. Weight, brain size, age in years, and so on are all perfectly arbitrary categories. The fact is that we accept that parents may fret over their children in ways that they may not fret over the children of others or interfere with other adults because there is something special in the parent-child relationship, that is, the parent has a legitimate interest in preserving his child's life and well-being. Such a recognition is actually contrary to the homesteading/self-ownership principles, that is, it results in legitimized coercion from parents to children.

No it's not.

"It is worth mentioning that the ownership right stemming from production finds its natural limitation only when, as in the case of children, the thing produced is itself another actor-producer. According to the natural theory of property, a child, once born, is just as much the owner of his own body as anyone else. Hence, not only can a child expect not to be physically aggressed against but as the owner of his body a child has the right, in particular, to abandon his parents once he is physically able to run away from them and say "no" to their possible attempts to recapture him. Parents only have special rights regarding their child - stemming from their unique status as the child's producers - insofar as they (and no one else) can rightfully claim to be the child's trustee as long as the child is physically unable to run away and say "no."[8]

Hoppe, A Theory of Socialism and Capitalism, n.9 to ch. 2, on p. 212.

Hence you would be within your guardianship / trustee rights -> to protect the child from oncoming traffic. You don't have trustee / guardianship rights over other adults (unless they fall into a coma etc. etc.) and are not able to reason.

Well, I beg to differ. We can list the properties of water which water satisfies and we can list the properties of air which air satisfies and we can say "here is air" and "here is water" but there is nothing objective about the distinction itself between air and water... both are made of the same stuff and that stuff is made of the same stuff and so on and so forth down to the quantum foam. That doesn't mean that air and water do not have different properties as a matter of objective fact. They are distinguishable and we can reason about them because the universe obeys the law of identity. But the universe itself does not distinguish between air and water... both are expressions of the same physical reality and follow the same physical laws. It is human brains that distinguish between air and water and impose perceptual boundaries between them.

There is a caveat here... there is a reason why the human brain distinguishes the boundaries it does. It actually comes from the theory of computation... search "Solomonoff induction" for more info. To the extent that we take information to be an objective attribute of the physical world, we can say that the boundaries between physical objects are themselves objective in that those boundaries represent the most efficient way to encode information about the physical world, that is, to perform induction about the future state of the physical world (which is a primary concern of the human brain - in fact, all brains). But I do not think this is at all what Hoppe or Rothbard have in mind.

Clayton -

Fallacy of division.

The idea that since we're all made of atoms, we're all the same is ludicrous in the extreme. And yet that's pretty much that notion.

And you're creating a strawman of Hoppe. Hoppe would make the claim of intersubjectively discernable boundaries/markings.

you would be within your guardianship / trustee rights -> to protect the child from oncoming traffic

But not if the child could verbally express dissent (which I explicitly said he had in the above quote). The child is free to leave at any time in the Rothbardian/Hoppean view. In order for me to hold him back against his wishes, I must restrain him from leaving me in general at least for the duration of holding him back. This would constitute a tort if done against an adult.

I don't believe that Rothbard/Hoppean theory of property as it relates to the family is properly developed. There's a lot of room for improvement. I generally agree that children must be able to leave their parents but I don't think this is the core issue. The core issue is when does the law generally recognize that a child can speak for himself? Until the child is understood by law to be able to speak for himself/herself, some one person must have power-of-attorney regarding the child's interests - a parent, a grandparent, a godparent, an adoptive-parent or some other kind of guardian. The central question of parenting disputes, then, is really over who has the power-of-attorney until the child is recognized by the law to be able to have no guardian at all, if he wishes.

Clayton -

Clayton:

I am arguing that an arbitrator does "make" law, and that he also "produces" law. Lawyers are completely different; they play the relatively trivial role of advisors to the disputants. The arbitrator / judge is the central figure.

This is certainly true of today's courts... it's all about the superstar sitting on the bench. But how much do you think the current state of affairs (monopoly courts) is shaping your perception of the way things would be in a competitive market in law services? I see no reason why a judge would be any more glorious or vaunted than an engineer or a banker - it would be just another white-collar job.

I think you read too much into what I said.

Clayton:

what use is Charlie except to gang up on one side and say, "Aha! we are more than you, so we win!"

Clayton:

But what reason does either Adam or Ben have to abide by what Charlie says? Just because "Charlie said it"?

They went to Charlie because they could not agree a settlement among themselves.  They sought his opinion on what would be a just resolution.  There would be no point asking him if they weren't going to abide by his decision.  As I said in the video, if one of them does not accept it then they are back to the situation they were in before Charlie arrived.  These questions seem elementary... I don't know what point you're making.

Clayton:

But it's not Charlie who's doing the producing or by-producing... it's Adam and Ben. Charlie is just a facilitator.

I think I misinterpreted your original objection.  I thought you were objecting to notion of a law being something that gets produced.  But I see now that you only object to my statement that it was Charlie doing the producing.  I accept that he did not and could not produce a law on his own, but you cannot suggest that he had no role in the production.  You distinguished law from order by referring to the division of labor, so it is true that Adam and Ben could not have produced a law without an arbitrator.  Charlie played a necessary role; without him, no law would have been produced, but merely a social norm (order).  So all three men had a necessary role in the production of the settlement and, as a by-product, a law.

Going back to my video, note that I said "By arbitrating on a conflict, and helping to resolve it peacefully, Charlie has produced a law."  By adding the bolded part, I am implying that it would not be a law unless Adam and Ben accepted the decision, and it became a part of the pattern of customarily acceptable resolutions we call the law. 

Clayton:

But if you say "Ben and Adam made a new law", you're implying that the dispute settlement has some kind of normative force to it... everyone after Adam and Ben who gets in a similar dispute over an apple will have to settle it the way Adam and Ben did.

Maybe future similar disputes will be resolved by referring to Charlie's successful resolution in the Adam vs Ben case; maybe not.  It doesn't make any difference to the status of Charlie's resolution as a law.

Am I correct in taking your silence on the matter of strawmanning Hans-Hermann Hoppe's position as conceded then?

But not if the child could verbally express dissent (which I explicitly said he had in the above quote). The child is free to leave at any time in the Rothbardian/Hoppean view. In order for me to hold him back against his wishes, I must restrain him from leaving me in general at least for the duration of holding him back. This would constitute a tort if done against an adult.

Yes and if the child is proclaiming to be an adult & wants to later press charges constituting a tort against the individual who held him/her back - so be it! The "child" is free to then seek legal action... like any other adult.

And if they are unable to do so - seek legal aid - then that kind of dents their claim of not needing guardianship, does it not? But really this is essentially a lifeboat scenario, not that the philosophy cannot handle it.

It is exactly analogus to that of stopping an adult from committing suicide. Which Walter Block has addressed adequately,

Jonah Goldberg and the Libertarian Axiom on Non-Aggression:

...Before considering the latest Jonah Goldberg criticism of this philosophy (saving a friend from suicide by force), consider, perhaps, an even more difficult case....

You are standing in the path on an onrushing boulder, completely unaware of your fate. In a second, this massive rock will hit you, and you will die. (Let us stipulate the truth of this supposition). Instead, however, I push you out of its path, and into safety. The only trouble is, as a result of it, although I have saved your life, I also broke your arm.

Now, if you are a reasonable sort of person, you will be grateful to me. Instead, you insist upon sticking to the literal letter of libertarian law, and sue me for damages for the injury you have sustained. After all, I did initiate a violent act upon your person, which resulted in an injury. If this is not assault and battery, you argue, then nothing is. How shall the libertarian judge rule?

One possibility is to hold me innocent of this charge. This could be done by adding up the two acts, the life saving and the arm breaking, and deciding that the former is far more important than the latter. So much so that the one ought to be in effect "subtracted" from the other, and since the result would be a "positive" (I contributed more to your life by saving it than I cost you through the injury you sustained), I would be let off scott free. The point here is that I committed not two acts, but only one: saving-your-life-and-injuring-you, and that this complex but single act is not one of initiatory aggression.

A difficulty with this line of reasoning is that you might have been standing in the way of the boulder as part of a suicide attempt. You regarded the situation where you are dead far more highly than the one where you are alive, but debilitated. We may assume you wanted to end your life because of bodily malfunctions like a broken arm, and now I have worsened your welfare, not improved it.

Another problem is that these really are two separate acts. It is certainly possible that I could have pushed you out of death’s way without breaking your arm. To call it two separate acts is really to fudge: this would only be done in order to achieve the common sense result we all presumably want: to find me innocent of bodily harm.

No, the only proper libertarian judgment is that I am indeed guilty of a battery upon your person. My motives may have been exemplary, but my act, strictly speaking, was in violation of your property rights in yourself. I might well be let off with a light sentence, given the extenuating circumstances, but guilty I am.

... With this introduction, I am now ready to consider Jonah Goldberg’s attack on libertarianism.... Consider a drunken A, who is standing at the edge of a bridge, ready to jump. B, a friend of hers, forcibly grabs A, and saves her from suicide. According to our analysis, B is guilty of a battery, and even of a (short bout of) kidnapping, given that B follows up his act of life saving by restraining A from further attempts to harm herself until she sobers up. But now what? Suppose that when she wakes up the next morning, cold stone sober, A still wants to kill herself. According to the logic of the argument of the Goldbergs (and Friedmans) of the world, B may restrain her from so doing for the rest of her life. This is the role accorded Goldberg to the state. After all, if it is justified to use violence against a person to save her life, and this works in the short term, why not for the long run? When life is placed at the core of a political philosophy, not the non-aggression axiom, this all follows from the laws of logic.

...

If you really think saving your friend’s life is important because the desire for suicide is only temporary, then you ought to be willing to pay a relatively small penalty if this friend then turns around and sues you for battery, or kidnapping. The problem with the Goldberg variation (sorry, I couldn’t resist) is that he wants a freebie: to initiate violence against an innocent person with no risk of punishment whatsoever.

I don't believe that Rothbard/Hoppean theory of property as it relates to the family is properly developed. There's a lot of room for improvement. I generally agree that children must be able to leave their parents but I don't think this is the core issue. The core issue is when does the law generally recognize that a child can speak for himself? Until the child is understood by law to be able to speak for himself/herself, some one person must have power-of-attorney regarding the child's interests - a parent, a grandparent, a godparent, an adoptive-parent or some other kind of guardian. The central question of parenting disputes, then, is really over who has the power-of-attorney until the child is recognized by the law to be able to have no guardian at all, if he wishes.

Not properly developed? Obviously you're entitled to your opinion, no matter how baseless I think it is - considering Rothbard and Hoppe have already addressed your response, you've not added anything new to the discussion / elaborated on how it is undeveloped.

"The core issue is when does the law generally recognize that a child can speak for himself?" - I assume you are speaking metaphorically, because the law is obviously not an entity.

So essentially you are asking what's the usual frame in which we recognize the ability of children to understand that they are able at that time to be on their own/self-actualizing? The answer to that is when they claim as such. And until then you operate under the impression of trustee / guardianship, whilst they go from the natural progression of child -> adult.

The point is that parents (or some other guardian) does have the right in the capacity as guardian to protect the child, so long as the child has yet to develop the maturity and awareness and wherewithall to "divorce" from the situation.

Part Two is here!

In this part, Alice is mugged, and her protection agency identifies Bill as the mugger. But Bill protests his innocence. Things start to get interesting when Bill's protection agency stands by him. How will the two protection agencies resolve this conflict?

Just watched it. Very well done. You have presented what is basically David Friedman's view.

In Hoppe's view, the insurers are the starting point, not the security agencies.

One of the things that is not addressed here is how individuals are insured for torts they may commit, not just against torts (think auto liability versus full coverage). You suggest that confinement may be a common practice for dealing with this but I'm skeptical that confinement would play much of a role in a free market in law and security. My reason for thinking this is that confinement has typically been limited to detainment of a suspected criminal for the duration of a trial, its only other use prior to the advent of the modern prison has been political... that is, the dungeon (e.g. Guantanamo Bay). It's just too costly to incarcerate people, even if you make them work (desperate people have no reason to care about their work, so their productivity is atrocious).

Somali Xeer is based on small groups of individuals (can't remember the name right now, but it's no more than four or five men in a group) who are co-liable for each other's torts. A tort committed by one member can be collected from all members of that group. Of course, people are very finnicky about who they allow into their group. One of the great features of this system is that it utilizes the natural human capacity for character-assessment to its fullest. You don't need criminal records bureaus, etc. etc. when you can just have nosy people using their natural nosiness to nose around in each other's business. It also puts a human face on the whole system.

Of course, we can't know whether Xeer has it right (it definitely has some flaws as identified by Michael van Notten) on this account or whether a more clinical, impersonal system would emerge in a free market of law and security. I'm simply noting that there are more possibilities than just the clinical one.

Finally, I will be so impertinent as to request that you make one video that discusses "getting from here to there". My view: our current legal system is grossly distorted but it's all we've got. So, I think we have to find a way to incorporate free market competition in law (arbitration) and security into the current system. There are two ways I see to go about this. The first is to evolve the current system towards a free market system. Of course, evolving a political monopoly into a free market of competition has never worked in the history of the world but I'm mentioning it for the sake of completeness. This is actually occurring to an extent as the judicial system is being forced to increasingly rely on voluntary arbitration. In the State of Oregon, I know that the juvenile courts are heavily using voluntary arbitration to get kids to work out ways to make amends for their wrongs in negotiation with the victim (e.g. repainting a grafitti'd fence).

The other option is to simply cut the monopoly in law and security (the State) off at the knees. This also has never worked in history (without descent into social chaos). In this scenario, the old legal codes (including statutes not related to sustaining the old law/security monopoly) could be taken as the new starting point for free market law. It's sort of like saying "From this moment, there is no government. However, since we must have some law, the law that was in effect before remains in effect now until it is overturned in the free market." I'm not aware of this ever having been tried before.

Clayton -

Clayton:

Just watched it. Very well done. You have presentedwhat is basically David Friedman's view.

Thanks.I am a big fan of David Friedman on free market courts as you know. Part 3 will be much more clearly inspired by him.

Clayton:

In Hoppe's view, the insurers are the starting point,not the security agencies.

I don't see a fundamental difference between their two visions, only their way of explaining it. I don't really know what you mean by starting point, except in terms of how you start explaining it. As I said at the end, I made a simplification by thinking of Dawn Defense as a combined a) insurance, b)security, c) investigation, d) arbitration and e) law enforcement firm all-in-one. It may not be this way, but I think it makes things easier to explain. Also, we know that firms seek to make things as easy as possible for consumers, and therefore I think it likely that some firm would offer a combined package like this, to save the consumer the hassle of having to pick 5 different firms (3 while in the stressful situation of having just been aggressed against). This consumer-facing firm might then outsource some functions, but the consumer trusts them to pick reliable firms to perform the outsourced functions. I take a consumers eye view in my explanation, starting with what consumers actually demand most - security and the means to justice.

Clayton:

One of the things that is not addressed here is how individuals are insured for torts they may commit, not just against torts (think auto liability versus full coverage).

I was going to mention that but I thought it might add unnecessary confusion. Ibelieve this is known as a system of sureties, or performance bonds. I am notconvinced this would be widespread. It is a very important factor in BobMurphy's vision in Chaos Theory, but I think he takes it too far.

Whatyou're saying is that Bill might have belonged to some organization that vouched for him. "If Bill commits a tort (intentional or unintentional),we will pay for it". So in Somalia these organizations are just four or five people? Do you think that is because of a low level of development, and that in a more advanced, peaceful society there might be hundreds or thousandsof people per organization? Or is the point that everyone in the organization knows each other very well?

I am not sure what incentive a 'good person' would have to join an organization that vouched for intentional torts, even if they did for unintentional torts (e.g. autoliability) - after all, "I'm not going to mug anyone, why do I need this insurance?" Nor am I sure why any organization would vouch for proven criminals. And if the criminals don't belong to any surety organization, what good are sureties? Payments over a long-term, with imprisonment if necessary, would still have to be used then.

But maybe Bill would belong to such an organization. However I see this as a possible system over-and-above the basic system of dispute resolution I described. Who would actually pay the punishments, like what the punishments would actually consist of, is secondary to the basic functioning of the system.

Where I disagree with Bob Murphy is that he conflates this surety organization with the security/insurance organization (i.e. the PDA). I think they would be entirely seperate, and must be thought of as logically seperate. Tanna Justice wouldn't vouch for Bill, in the sense that they are not going to pay his $10,000 punishment on his behalf.

Clayton:

Finally, I will be so impertinent as to request that you make one video that discusses "getting from here to there".

Currently out of scope I'm afraid. Massive complicated topic as well - would probably need a whole series to itself! I think Hoppe-style secessionism is the way to go.

Part Three is done!

This part looks at a conflict between protection agencies about principles, namely a disagreement about whether the death penalty is a suitable punishment for murderers. It explains how, in a system of competing providers of security and law, consumer preferences for justice are reflected in the policies, decisions and agreements of the protection agencies.

 

 

Excellent work. Very Friedman.

Clayton -

@Graham: great job! Best of luck with these videos, I find stuff like that really useful in bringing people to logical conclusions.

@Clayton: a lot of nice ideas! BTW, kids discredited Rothbardian theory for me, too. That, and also I cannot see how NAP is "natural" - a unique solution to any deontological derivation from observed facts. Too many assumptions many people do not make.

Have you read Hoppe on the reason for private property?

Have you read Hoppe on the reason for private property?

Not sure if this is meant for me... but yes.

No, for Andris. I am not saying Hoppe is right, I am saying his view is certainly important to examine.

Yes, I have. Hoppe presents ideas in very clear style, and most of them are really interesting and useful, but still I find I need a (maybe small) leap of faith to fully embrace his position.

If you cannot accept NAP from bottom up, it may be also accepted from the top down. As in you don't need to start with a void and build from there. You can take your current assumptions and use logic to systematically show the inconsistencies in ideology that ultimately lead to the NAP being left standing.

E.g.: Assumptions: 1) Involuntary Taxation good 2) stealing bad

Deconstruction: they are the same thing. Hence, remove taxation.

Assumptions: 1) Regulations good 2) Me hitting neighbor to prevent him from drinking his own piss bad

Deconstruction: they are the same thing. Hence, remove regulations

We take basic human interactions and deconstruct the macro aspect of government to these human interaction basics and show that our instinct to embrace NAP leads us to reject the state.

You do not need to prove the NAP as long as you show that everything else is inconsistent.

Clayton:

[The lack of objective boundaries in the physical universe] is easier to see in the case of the human family. A child is human in every sense that an adult is human. Nevertheless, we recognize the right of parents to engage in behavior towards their children that could be aggression if committed against an adult peer. For example, if my 5-year old is about to step out into a busy street, I'm well within my rights to seize his shoulder and bodily drag him back onto the sidewalk, even though it might cause some pain in his shoulder and even though he might be extremely upset about being impeded in his chosen path. If an adult were about to step out onto a busy street, however, I have no business reaching out and seizing that person by their shoulder. I am certainly opening myself up to lawsuit for aggression if the person does not appreciate my good-Samaritanism or, in fact, resents it and is angered by my impeding them on their chosen path.

That the very same action results in two different legal outcomes means there must be a defining difference between the adult and the child. Yet it cannot be DNA. Weight, brain size, age in years, and so on are all perfectly arbitrary categories. The fact is that we accept that parents may fret over their children in ways that they may not fret over the children of others or interfere with other adults because there is something special in the parent-child relationship, that is, the parent has a legitimate interest in preserving his child's life and well-being. Such a recognition is actually contrary to the homesteading/self-ownership principles, that is, it results in legitimized coercion from parents to children.

I know this is an old post, but I didn't read it until today. Anyways, I think you've hit upon the core reason for the origin of the state. That is, states arose by people extending this presumed parent-child relationship to elder-younger. "Respect your elders (just because)" is still very much alive and well. Over time, this then turned into ruler-ruled and even master-slave.

As you noted, any supposed boundary between who can be legitimately aggressed against - not simply coerced - and who can't is necessarily arbitrary, even if it rests on prior assumptions. The only alternative is to suppose no boundary at all.

Anyways, I think you've hit upon the core reason for the origin of the state. That is, states arose by people extending this presumed parent-child relationship to elder-younger. "Respect your elders (just because)" is still very much alive and well. Over time, this then turned into ruler-ruled and even master-slave.

Yeah, this is the Molyneux theory (maybe not original to him but he's the one I've most heard speaking of it). I wonder if, perhaps, cause and effect are reversed in this theory: perhaps parents who live under brutal states are brutal to their children and parents who live under minimal states treat their children more naturally.

As you noted, any supposed boundary between who can be legitimately aggressed against - not simply coerced - and who can't is necessarily arbitrary, even if it rests on prior assumptions. The only alternative is to suppose no boundary at all.

I think there can be non-arbitrary boundaries and I think these boundaries can emerge through voluntary law. For example, majority might be determined by the child's answers to a set of questions asked by a neutral third-party (e.g. a psychologist) whose purpose is to determine the child's ability to make decisions on his own. My only contention is that armchair philosophy, such as the NAP, is not a realistic guide to determining the law in a voluntary law society.

Clayton -

 is not a realistic guide to determining the law in a voluntary law society.

Why not?