A Praxeological Account of Law
What is law? I will attempt to answer this question using a praxeological approach. A good place to begin is to look at how the legal profession itself defines law. The website for the Oregon courts has an excellent summary[1] of modern law and courts. I will quote it at length:
Throughout history, people have had disputes and have needed some means to settle their disputes. As civil societies develop, they need an orderly system of conflict resolution. One system that developed in “western” cultures is the “law court” or court of law. In England, those early law courts developed a “body of law” called the common law, which defined both the rights of the people and the government and the duties people owe each other and their government. There was no legislature yet to adopt statutes.
English settlers brought this common law with them to the American Colonies, where it developed into the American common law. Over time, state and federal constitutions and statutes have superseded much American common law. Courts continue to look to the common law for guidance if no statute defines the rights and duties in a particular case.
As in other states, courts in Oregon are both rooted in this common law tradition and governed by a state constitution and statutes that supersede the common law. Oregon’s statutes are organized by subject matter in a set of books called Oregon Revised Statutes (ORS).
As in other states, Oregon law has two broad branches: civil law and criminal law, each with origins in the common law and each now governed primarily by statute.
Civil law includes statutes and “case law” that define or interpret individuals’ and organizations’ private rights in their relationships and disputes that involve property, contracts, personal injury, family relationships, tax, or government rules and regulations.
Because Oregon does not have laws that define every private right, courts rely on the “court-made” law called “common law” to resolve some disputes.
Criminal law is the body of laws that define a person’s basic rights in and duties to preserve a peaceful and safe society. A person who violates the duties to preserve social peace and safety may be guilty of a crime “against the people” and so face jail, prison, or some other punishment. In addition, if the lawbreaker’s act injured another (the “victim”), the victim may have a right to a private, civil law claim for damages.
Modern criminal law is almost all statutory. Criminal cases require courts to decide whether and how certain criminal laws apply and whether those laws as applied violate the state or federal constitution.
The legislature can change the common law by enacting a statute, so long as the governor does not veto the new law. The courts must follow that law so long as it does not conflict with the state or federal constitution. However, if no statute “governs” the issue in a particular case, the court may look to the common law rules for guidance.
When an appellate court must interpret statutory or common law in order to decide a case, the court’s decision becomes “precedent” for deciding future cases with similar issues.
A precedent that interprets a statute makes that interpretation part of the statute.
A precedent that applies the common law to a new situation becomes part of the common law.
Although courts usually “follow precedent,” courts may modify the earlier common law rules in some circumstances.
The legislature enacts other statutes that affect courts as well. The legislature determines the budget for the state courts and defines the amounts they charge for filing fees and other court fees. The legislature also defines how state courts collect fines and distribute the money collected.
This summary contains all the essential elements of the modern law. Americans have a common law tradition which forms the foundation on which the law rests. Statutes override the common law to force the courts to operate in accord with the State’s interests. Interpretation of the common law or statutory law forms new legal precedent. New precedents are folded into the common law and statutory law to extend the body of law.
Law touches every aspect of human behavior. It can be concerned with highly technical matters (for example, in patent disputes) or very elemental, visceral issues (such as, custody of the remains of a victim of a violent crime). It can become mired in issues of metaphysics, science and language. Law is potentially concerned with any aspect of human action and knowledge.
Not only is law unboundedly complex, the discussion of law is plagued by selfish interests. Law is like economics in the sense that:
Economics is haunted by more fallacies than any other study known to man. This is no accident. The inherent difficulties of the subject would be great enough in any case, but they are multiplied a thousandfold by a factor that is insignificant in, say, physics, mathematics or medicine-the special pleading of selfish interests. While every group has certain economic interests identical with those of all groups, every group has also, as we shall see, interests antagonistic to those of all other groups. While certain public policies would in the long run benefit everybody, other policies would benefit one group only at the expense of all other groups. The group that would benefit by such policies, having such a direct interest in them, will argue for them plausibly and persistently. It will hire the best buyable minds to devote their whole time to presenting its case. And it will finally either convince the general public that its case is sound, or so befuddle it that clear thinking on the subject becomes next to impossible.
Henry Hazlitt – Economics in One Lesson
The law is even worse, in this regard. Not only does it touch an even broader swath of human behavior (all of economics and everything else), the incentives facing special interests to manipulate the law have even greater and more immediate benefits than the manipulation of economic policies whose effects may not be felt for some time. Consider the large awards from civil lawsuits for ridiculous non-torts that make the news headlines from time to time, for example.
Defining law is complicated by the superficially abundant varieties of legal systems throughout the world. Law looks quite different in different cultures. The Afghans have their Pashtunwali, the Somalis have their Xeer. The English had their famed common law which still survives in many different forms. The Vatican has its Code of Canon Law. By far, the predominant form of law in the modern world is national, statutory law. It is so predominant, in fact, that most people today identify the word “law” with this system. In this article, I will defend the following definition: Law is a body of terms of settlement of disputes that usually succeed over time in preventing further open conflict which has been discovered through a process of trial and error.
Before Law
There was a time before law. If we go far enough back in our evolutionary ancestry, we reach a point where our ancestors were not yet verbal. Since the ability to speak and engage in complex, rational argument is a precondition for law, these ancestors could not have had law. At some point, our ancestors acquired the ability to speak. At some later point, law emerged.
Of course, even before our ancestors could speak, they could get into disputes. Disputes occur between other animals frequently. Without the ability to speak, there are fewer ways in which to resolve disputes. Usually, dispute resolution between animals involves intimidating displays of force, threats, and violent or even deadly conflict. Disputes are costly and risky so, even in the non-verbal animal kingdom, there are dispute avoidance mechanisms. Birds mark their territory with sticks, dogs with urine, and so on. The behavior of establishing publicly visible borders is important because, as long as others see and abide by those borders, disputes can be avoided.
When a dispute arose between our verbal ancestors who had not yet developed law, they had the option of talking about the dispute. If, after talking (perhaps shouting), they did not engage in physical violence, they had resolved their dispute verbally. People who could resolve their disputes verbally would incur less costs and risks than those who could not and, consequently, would enjoy an advantage in survival and reproduction. However, we know from experience that it is very difficult for two parties to resolve any serious dispute unaided since each party to a dispute tends to distort the facts and engage in special pleading in his own favor. One solution to this problem is to ask a disinterested third-party to hear the dispute and offer an opinion. People who were willing to bring their disputes to a third-party were more likely to resolve their disputes without the cost and risk of violent conflict and enjoyed an advantage in survival and reproduction over those who did not.
By the time of the earliest written history, law had already emerged – sometime between the first verbal arguments and the dawn of human history. Governments, too, had already emerged by the dawn of human history. Because most people identify “law” with national, statutory law, there is a tendency to presume that law emerged alongside or even after government emerged. But we can be confident that law emerged before government did because not all societies had or have government but all societies have law[2].
Hence, law is temporally antecedent to government. This is an important point because it means that it is possible to have law without government, a point which, it seems, most people today do not believe to be true. More importantly, if law is antecedent to government, then when governments emerged on the scene, they emerged in a pre-existing legal context. Today, we tend to identify dispute-resolution and the creation of law with government courts and legislation.
Something important happened between the time when law first emerged and the time of the advent of government. Prior to the emergence of government, disputes were resolved between disputants, possibly with the assistance of a third-party. Family relations and tribal or clan customs likely played a dominant role in the nature of law at the time. Law consisted of a body of norms which had emerged from use as effective rules for the final settlement of disputes without further conflict. The particular features or attributes of specific law systems are not as important as the general character of law – emergent and voluntary. Law was the alternative to violent conflict so participation in law was not coercive. It was simply an alternative to outright violent confrontation.
After the emergence of government, the character of law changed. Law not only emerged through the voluntary settlement of disputes, it was also dictated by governments. Participation in law was either required or prohibited in many instances. Prosecution eventually became a subsidized profession. I will argue that dictations fail to meet the criterion of being law since they do not emerge from the resolution of disputes. The difference applies to whether one should follow a law out of conscience or merely prudence. Decent people do not murder one another or wantonly pillage each other’s houses not only because it is illegal to do so but because it is simply immoral.
When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them.
Frederic Bastiat – The Law
How Disputes Arise
Morality can be thought of as the art of choosing right ends. I think it’s safe to say that most people choose their own ends without a great deal of introspection. But among those who do introspect and opine on morality, there is almost universal agreement that the choice of right ends cannot be based solely or even primarily on one’s own desires irrespective of social well-being. This is the central tenet of collectivism, which is the prevailing moral sentiment today and has been for a very long time.
But this is exactly wrong. The only sense in which an end can be “right” as opposed to “wrong” is the extent to which that end is a means to the ultimate end which every acting being has – satisfaction of wants. Satisfaction of wants is only apprehended subjectively.
… As a passive being [man] experiences sensations that are painful or pleasurable. As an active being he strives to banish the former and multiply the latter. The result, which affects him again as a passive being, can be called satisfaction. [Emphasis original]
Frederic Bastiat – Economic Harmonies[3]
This is might be mistaken for hedonism but hedonism tends to focus on the pursuit of pleasure as an end in itself. In a praxeological framework the pursuit of pleasure is just one means of attaining satisfaction. An ascetic, for example, attains satisfaction of his ends through the denial of carnal pleasures.
If I choose a particular course of action it is because I believe I am right to do so, that it is to my best and highest benefit to follow this course of action. And the same is equally true of another person who has chosen a course of action which conflicts with mine. Hence, we are not only involved in a dispute but we are each convinced, “I am the one who is in the right, I have the right to do as I’m doing and you are interfering with my rights.” I think this explains why normal people take legal disputes so personally.
However, I think right and wrong distract from the real issue which is the fact of conflict. Regardless of who is right or wrong, the problem is that my chosen means-end involves obstructing one of your chosen means-ends. I can only be happy by frustrating you. Disputes arise whenever the chosen means-ends of two individuals come into conflict.
Why We Bargain Rather Than Fight
If I’m living in a very primitive society and I get into an argument with one of my fellow men, what happens? There are no judges and may not even be a chief we can appeal to. So what do we do? One option is to fight. But if my opponent is much bigger than me, I will almost certainly defer to him rather than fight him. If I am much bigger than my opponent, I will gladly fight him and probably win. But if you take any two men at random, they will be about the same size, strength and ferocity with high probability because most humans are close to the average. I will probably be about as afraid of the person I am in a dispute with as he is of me. We each are going to be wary of the other.
Since we’re human, we can do something that other animals can’t: we can speak and reason. It might consist of a mix of shouting and posturing with reason but that is much better than getting my skull bashed in over whatever it was we were arguing about. If we resolve our dispute without further violence, then we have succeeded in a kind of cooperative voluntary exchange. We both agreed together to exchange our present circumstances – fight/standoff – for a better set of circumstances – bargained settlement. I would rather give up a little of my sustenance to avoid the uncertainty and risk of being involved in a man-to-man battle where I might get to keep everything or I might just lose everything.
This is a crucial point because it explains how both parties to a dispute are better off, even though it might superficially appear that the party who was in the wrong – and, thus, has to pay – loses out. Because he agreed to the terms of settlement voluntarily, we can be sure that he believed that settling was preferable to remaining in a state of open conflict. Hence, both parties are better off as a result of settling the dispute.
The cooperative nature of the settlement decision is the essential difference between the kind of exchange that occurs as a result of dispute-resolution and ordinary voluntary exchange (catallactic exchange). In ordinary voluntary exchange, each decision-maker is completely autonomous and his decision to exchange or not exchange is determined solely by internal factors within himself. But it is very difficult to get even two people to make one choice that they both agree is the best for the both of them taken together. Each party wants to keep everything and give up nothing. The prospect of violent conflict if the issue is not settled – and the uncertainty regarding the outcome of such a conflict – drives them to bargain with one another. There cannot be social order without the cattle-prod of the prospect of violent conflict driving disputants to arbitrate their disputes. Thieves would simply keep the proceeds of their theft and social order would necessarily disintegrate.
Testing the Settlement
After two people verbally argue out their differences, the dispute can either go back to a state of open conflict (perhaps a standoff), or it is resolved through some kind of mutually agreed (stipulated) settlement. If the parties settle, then – as time goes by – they will either abide by the terms of the settlement because they believe sticking to the settlement is the best choice among the alternatives or they will end up in a dispute again over this or something else (feud). Good settlements are proven by their ability to prevent a return to open conflict or standoff. Poor settlements are proven by the opposite. As many disputes are settled, people learn that certain kinds of settlement are likely to fail and other kinds are likely to succeed in preventing a return to conflict or standoff. Those terms of settlement that tend to work in preventing future conflict can be termedlaw. The profession of assisting people who are trying to bargain for terms of settlement of a dispute in choosing good terms of settlement (and avoiding poor terms of settlement) can be called arbitration.
Past Settlements Inform Future Behavior
But the story does not end here. Law itself feeds back and informs the means-ends choices that people make. Knowing that a certain course of action is likely to result in either direct conflict or unfavorable terms of settlement in arbitration makes that course of action – ceteris paribus – less attractive than it otherwise would have been. Such courses of action come to be perceived as unlawful. As a result of the settlement of disputes through mutual agreement to terms of settlement, society self-organizes and becomes lawful and orderly. A wise overlord is not needed. In fact, the Leviathan of Hobbes is a pox – it is the universal bully that – by virtue of its overwhelming power – may impose its ends upon all others. Such an organization is cancerous to lawful and orderly society.
Calculation Argument Applied to Law
Ludwig von Mises argued that socialism is impossible because governments are not subject to the market discipline of profit and loss and, therefore, they are unable tocalculate. That is, government simply cannot tell if it is making things better or worse, economically, even if it has perfectly altruistic intentions.
The paradox of “planning” is that it cannot plan, because of the absence of economic calculation. What is called a planned economy is no economy at all. It is just a system of groping about in the dark. There is no question of a rational choice of means for the best possible attainment of the ultimate ends sought. What is called conscious planning is precisely the elimination of conscious purposive action.
Ludwig von Mises – Human Action[4]
Exactly the same problem exists with planned law, or statutory law. Law that emerges from the mutual, voluntary settlement of disputes is informed by a process of discovery through trial and error. Settlements which worked in past disputes are likely to work in new disputes. Courses of action which are likely to result in unfavorable terms of settlement inform the choices that people make, thus reducing the incidence of disputes to begin with and making society more harmonious. The choice to arbitrate disputes in an orderly manner and accept the (sometimes painful) outcomes of orderly dispute-resolution is reinforced by the orderliness of society itself. That is, whereas disputants in earliest human history bargained with one another solely out of a desperate attempt to avoid the risks and dangers of open conflict, we have a long experience with the benefits to the individual of participating in orderly dispute resolution. This process of feedback on the choices people make continually drives the gangly process of cooperative, catallactic exchange in dispute resolution closer to a process of pure, catallactic exchange – the act of taking a legal risk becomes, more and more, an entirely conscious trade-off based on calculation of costs and benefits.
Statutory law, on the other hand, is informed by nothing more than glorified hunches. The author of statutory law cannot know – even if he has the most altruistic intentions – whether his law is going to reduce or increase the incidence of conflicts and he cannot know whether it will work in preventing future conflicts from buried dissatisfaction with the imposed terms of settlement. As Mises calls central, economic planning, it is a “system of groping about in the dark.”
The Bully Problem
In a very primitive society, the situation where one person is significantly stronger than another creates the potential for bullying. The bully enjoys a surfeit of rights vis-à-vis others weaker than himself. Simple verbal dispute in a primitive society does not provide any means to solve this problem. Other, more sophisticated social structures – such as the division-of-labor and specialization in the production of security – must emerge before the bully problem can be solved.
However, it is important to note that the bully problem is not solved by government. Hoppe ridicules the State:
Moreover, as ultimate judge the state is also a monopolist of taxation, i.e., it can unilaterally, without the consent of everyone affected, determine the price that its subjects must pay for the state’s provision of (perverted) law. However, a tax-funded life-and-property protection agency is a contradiction in terms: an expropriating property protector. [Emphasis added]
Hans Hoppe – State or Private Law Society[5]
The State can just as well be described as a “bullying bully-stopper”, an equally absurd notion.
The bully never actually engages in dispute-resolution because he does not need to. He simply imposes a condition that Mises termed autistic exchange on the terms of settlement.
Action always is essentially the exchange of one state of affairs for another state of affairs. If the action is performed by an individual without any reference to cooperation with other individuals, we may call it autistic exchange. An instance: the isolated hunter who kills an animal for his own consumption; he exchanges leisure and a cartridge for food.
…
Where there is no intentional mutuality, where an action is performed without any design of being benefitted by a concomitant action of other men, there is no interpersonal exchange, but autistic exchange. It does not matter whether the autistic action is beneficial or detrimental to other people or whether it does not concern them at all. A genius may perform his task for himself, not for the crowd; however, he is an outstanding benefactor of mankind. The robber kills the victim for his own advantage; the murdered man is by no means a partner in this crime, he is merely its object; what is done, is done against him.
Ludwig von Mises – Human Action[6]
The position of the State as the universal bully is precisely why I argue that statutory law is not law at all. Rather than allowing people to choose their own terms of dispute settlement, there is a universal generator of dispute-settlements (the State’s courts) which all disputants are compelled to patronize. The opinion of the individuals involved in the dispute regarding the quality and long-term workability of the imposed terms of settlement (judgment/decree) is mostly or completely irrelevant.
Another Approach to Property Rights
Consider the bully problem. Although bullies get their way, nobody believes (except the bullies themselves) that it is right that bullies should get their way. That is, nobody believes might makes right. The bully system of “law” is as an example of double-standards. There is one way for the bully and another way for everybody else.
The Austrian account of property rights – as exemplified in the writings of Hoppe or Rothbard – begins with two basic principles. The first principle is that of self-ownership. The second principle is that of original appropriation or homesteading. A corollary to these two principles is voluntary exchange.
The unspoken assumption of the homesteading principle is that, absent some reason why something should belong to one person rather than another, no one has any better claim to it than anybody else. Who owns the moon? Who owns Mars? There is a slice of the Antarctic continent, called Marie Byrd Land, which is not claimed by any sovereign nation. Who owns it? I can give no good reason why I have rights to exclusive use of some portion of the Moon or a portion of Marie Byrd Land. So, no portion of the moon or Marie Byrd Land is my property. These questions open up the larger question of how any physical thing came to be owned in the first place.
To grant some individuals a priori primacy in property claims is equivalent to the bully system of law – it is the grant of privilege or double-standards. I term this dual-law. The choice is between some version of homesteading on the one hand or dual-law on the other hand. A better reason must be given for why someone owns something than “because he’s stronger than everybody else” or else accept the assignment of property rights by a system of privilege, that is, dual-law.
But is it true that we can deduce a perfect system of property rules (rules for the resolution of property disputes) solely by means of reflection? I think the answer is no unless we mean meta-rules that are completely devoid of content, such as the rule that “some kind of reason must be given why a thing belongs to one person rather than another.” Rather, laws regarding the resolution of property disputes (that is, property rights) are no different than any other kind of law and emerge in exactly the same way – through a process of discovery by trial-and-error.
In fact, if we say that the rules of property can be deduced solely by means of reflection, then we are doomed to Marxism. The reason is simple – since no one has any better claim to anything than anybody else, nobody owns or can come to own anything. The homesteading principle itself should be dismissed as a piece of capitalist propaganda designed to lure the masses into accepting their own enslavement in a system of privilege through “property rights.”
But the fact of the matter is that the practice of owning things, of homesteading them, and so on is an integral part of human action. It is a brute fact of human action, and the disputes that arise in the process are also brute facts of human action. And the means which have been successful in settling these disputes in the past – property law – are also brute facts of human action. Hence, property rights emerge from the resolution of disputes about who owns what and the normative content of property rights is filled out by the same process of discovery through trial-and-error as any other law.
The Objective Approach to Law
Rothbard argued that the correct choice of means-ends is objective and, therefore, that morality is objective. However, I think this is incorrect. The correct choice of means-ends varies from individual to individual as a result of the fact of individual variation. One man likes chocolate ice cream and despises vanilla ice cream. Another man despises chocolate ice cream and loves vanilla ice cream. Morality, like taste, is subjective. However, certain patterns in morality emerge over time, just as patterns in taste emerge over time, in response to survival pressures. Rothbard (in EoL) uses the illustration of eating a poisonous mushroom as an example of an “objectively wrong” act. But here he is confusing the objective patterns of means-ends choices that exist in the population with right and wrong means-ends. There is no right or wrong, there just is. If you choose to eat a poisonous mushroom, you’ve chosen to eat a poisonous mushroom. If you die, leaving no offspring to pass on your proclivities for poisonous psychedelics to, it is less likely that people will choose the eating of poisonous mushrooms as a means-end to the ultimate end of satisfaction. This biological fact has created an observable pattern of poisonous-mushroom-avoidance in human behavior. But it is a mistake to confuse a pattern of human behavior with a moral norm.
The Utilitarian Approach to Law
Utilitarianism is another approach to discussing law.
A … reason to use practical rather than ethical arguments is that I know a great deal more about what works than about what is just… I think more is known about the consequences of institutions than about what is or is not just–that economics is a much better developed science than moral philosophy.
David Friedman – Machinery of Freedom
Friedman is correct as far as it goes – economics is in better shape than moral philosophy. However, the obvious question left unaddressed is why. Why is moral philosophy in such bad shape? The answer should be equally obvious – because the means by which social norms of any more consequence than please-and-thank-you are developed has been stunted. Specifically, we live in a world of statutory law. Law is centrally planned and the consequences to the quality of legal norms are no different than the consequences of central economic planning on prices. Rationality in law is impossible because we have removed the feedback which used to inform the law: the success or failure of a variety of terms of settlement in preventing further conflict. Law is no longer a process of trial-and-error, it is almost completely a planned process.
As Bastiat notes, we intuitively expect the law to conform to our moral notions. A world in which murder is legal and selling one’s labor is illegal would seem terrible and alien to any normal person. The line between law and moral norms is fuzzy (that is, when do you scold someone versus sue them?) but they are only different in degree, not in kind. I believe that the stagnation of moral philosophy vis-à-vis other disciplines is correlative with the stagnation in law itself. Without the crucial process of discovery through trial-and-error, we have no way to know what should be legal or illegal. That is, we have nothing better than force of opinion on which to argue what is right and what is wrong.
Conclusion
Law is a body of terms of settlement of disputes that has been discovered to work over time through a process of trial-and-error. Statutory law is centrally planned law and suffers from the same calculation problem that Mises expounded for economic central planning. Law informs the individual’s calculation of the tradeoffs regarding the risk of conflict with others versus the private benefits of a given course of action. Law is the ultimate mechanism by which social norms are discovered and the stagnation in modern law – a result of the stunting of the process of legal discovery through trial-and-error by statutory law – is correlative with the stagnation in moral philosophy.
A revolution in ideas about law is needed. This revolution must acknowledge the crucial importance of the status quo in law – in however bad repair modern law may be, it is still all we have. But it must also acknowledge the crucial importance of rebooting the process of trial-and-error in the resolution of disputes (that is, curtailing the making and enforcement of statutory law) in the lives of individuals. Some specific, concrete steps that can be taken toward this end include:
The moral confusion of society will continue to grow worse until the process of discovery by trial-and-error by which bad social norms can be selected out and good social norms can be preserved is restarted.
[1] http://courts.oregon.gov/OJD/aboutus/courtsintro/index.page?
[2] If we take the collection of taxes or the existence of some kind of compulsory obligation to a chief or lord to be the sign of the existence of a government, then tribal societies did not have governments even though they all had laws.
[3] §2.22
[4] Ch. 26
[5] http://www.lewrockwell.com/hoppe/hoppe26.1.html
[6] Ch. 10
I'm only going to bother to comment on the strawmen against Rothbard.
"The Objective Approach to Law
Rothbard argued that the correct choice of means-ends is objective and, therefore, that morality is objective. However, I think this is incorrect. The correct choice of means-ends varies from individual to individual as a result of the fact of individual variation. One man likes chocolate ice cream and despises vanilla ice cream. Another man despises chocolate ice cream and loves vanilla ice cream. Morality, like taste, is subjective. However, certain patterns in morality emerge over time, just as patterns in taste emerge over time, in response to survival pressures. Rothbard (in EoL) uses the illustration of eating a poisonous mushroom as an example of an “objectively wrong” act. But here he is confusing the objective patterns of means-ends choices that exist in the population with right and wrong means-ends. There is no right or wrong, there just is. If you choose to eat a poisonous mushroom, you’ve chosen to eat a poisonous mushroom. If you die, leaving no offspring to pass on your proclivities for poisonous psychedelics to, it is less likely that people will choose the eating of poisonous mushrooms as a means-end to the ultimate end of satisfaction. This biological fact has created an observable pattern of poisonous-mushroom-avoidance in human behavior. But it is a mistake to confuse a pattern of human behavior with a moral norm."
No, no, no, no, no...
If Crusoe had eaten the mushrooms without learning of their poisonous effects, then his decision would have been incorrect-a possibly tragic error based on the fact that man is scarcely automatically determined to make correct decisions at all times. Hence, his lack of omniscience and his liability to error. If Crusoe, on the other hand, had known of the poison and eaten the mushrooms anyway-perhaps for "kicks" or from a very high time preference-then his decision would have been objectively immoral, an act deliberately set against his life and health. It may well be asked why life should be an objective ultimate value, why man should opt for life (in duration and quality) In reply, we may note that a proposition rises to the status of an axiom when he who denies it may be shown to be using it in the very course of the supposed refutation. Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life, he would have no business in such a discussion, indeed he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of his discussion, and hence the preservation and furtherance of one's life takes on the stature of an incontestable axiom.
Ethics of Liberty, ch. 6
Both Rothbard and Hoppe have been led astray with the "impossibility of the contrary" argument. First of all, there's no such thing as something "rising to the level of an axiom." An axiom is simply something that is taken to be true without further justification. Axiom A means "Assume A." If A has "risen" to the level of axiom, then it has risen from something else and it is a mistake, then, to call it an axiom - the actual axiom(s) are whatever A has arisen from and A itself is a theorem, not an axiom.
Hoppe's argument for self-ownership and Rothbard's argument for objective ethics here are tantamount to claiming that self-ownership and objective ethics are one and the same as the Law of Non-Contradiction (LNC) because their arguments are formally indistinguishable from Aristotle's argument for the LNC. "A cannot be ~A because to deny this is to affirm it." "Man must be a self-owner because to deny this is to affirm it." "Man must value life because to deny this is to affirm it."
The LNC, of course, is utterly devoid of content and can be equally well applied to things that are not even real (such as points, lines, planes or cubes) as to the real world of experience. But the justification of self-ownership by the impossibility of the contrary is not devoid of content, it is filled with all sorts of specific ideas about the nature of the physical world, the nature of human beings, and so on. In using the impossibility of the contrary argument, either Hoppe and Rothbard are arguing that self-ownership and life-valuing are actually just different ways of stating the LNC or they are surreptitiously importing a lot of content into the LNC that does not belong there.
I'll focus on the key phrase in Rothbard that is problematic:
"his decision would have been objectively immoral, an act deliberately set against his life and health"
The problem, here, is that Rothbard is confusing autistic exchange with ordinary exchange. In autistic exchange not involving other persons, there can be no such thing as "right and wrong" because there is no conflict. Right and wrong - in the praxeological framework I spelled out above - emerge as a byproduct of the resolution of disputes. We only have an idea of "right and wrong" because we can get into disputes with other human beings. But there is no sense of right and wrong outside of the possibility of disputes between human beings. Crusoe, alone on his island, is incapable of doing anything that is moral or immoral. Questions of morality simply cannot arise. This, I believe, was Mises's view, as well (I don't have a cite to back this up, though).
Clayton -
Excellent article.
While reading the sections about (1) the law being antecedent to government and (2) bullying, an idea occured to me. The benefits of conflict avoidance between two human agents of approximately equal martial skills (capacity) are obvious. But the game-theoretical equation about profit maximization can be significantly changed by grouping/herding of agents for the purpose of shifting the balance of martial skills (capacity) in their favor thereby affecting conflict resolutions either through threat or excercise of force. This way, both the leader/organizer/elite and the followers/herd are likely to win more (enjoy more advantageous resolution outcomes) than if each of them tried conflict resolution with non-members individually. This, in turn, increases the incentives for becoming a member of the herd/group. If correct (still in early stages of development), this could be (yet another possilble) explanation for the "natural" emergence of princes/governments/states.
@z: I'm inclined to hold that States are truly aberrant and are the result of maladaptation of human beings to the division-of-labor, particularly in law and security. That is, because our brains spent 90% of their evolutionary history in the Savannas of Africa where there was little, if any, division of labor (if you wanted to smash wheat, you found the rock to smash it with yourself, etc.), our brains are hardwired for primate economics, that is, the economics of total self-sufficiency (self-production). Governments can arise because people generally agree to the curtailment of specialization and division-of-labor in the production of security and law. In other words, while the rest of the economy is slowly but surely yielding to the benefits of exchange and division-of-labor, the government propagandists keep appealing to the maladapted part of our brains that believes, deep down, that we really should go find our own rock to smash wheat with rather than buying a bag of flour from Wal-Mart that was packaged in China for $0.99.
As you may be aware, I also believe there is a complex sexual/reproductive component that goes to explaining the abberation of the State, as well.
Clayton, both of yours are good hypotheses. I'd appreciate if you tried to poke a hole or two in mine.
You have for the so manyth time, chosen to completely ignore my post & press on as if it & the links contained within do not exist.
The benefits of conflict avoidance between two human agents of approximately equal martial skills (capacity) are obvious. But the game-theoretical equation about profit maximization can be significantly changed by grouping/herding of agents for the purpose of shifting the balance of martial skills (capacity) in their favor thereby affecting conflict resolutions either through threat or excercise of force. This way, both the leader/organizer/elite and the followers/herd are likely to win more (enjoy more advantageous resolution outcomes) than if each of them tried conflict resolution with non-members individually. This, in turn, increases the incentives for becoming a member of the herd/group. If correct (still in early stages of development), this could be (yet another possilble) explanation for the "natural" emergence of princes/governments/states.
@Conza: "No, no, no, no, no" is not an argument, so there's nothing really to respond to. As far as chasing rabbit trails all over these forums and the rest of the Internet, I think the least you can do is copy/paste the relevant section into this thread where I can respond to it inline. I looked at the links and I get the gist of what you're trying to say but it's impossible to rebut a gist.
Hi Clayton,
The point about finding the settlement that ends the conflict, to me has to do with the opinion of third parties; not just the two involved.
If one person steals bread, and the baker demands he pays him twice the value back, AND the rest of the (local) society thinks that would be fair, then that's what can settle the issue for the people involved.
The reason I bring this up is because the increasing wealth through the division of labor is an economic law. And people can use that insight as the basis for opining on disputes.
So I agree that the specifics of law must go through an evolutionary process of creative destruction of succesful and unsuccesful arbitrators and procedures, reputation agencies, etc.. ..but I don't agree that we can't say anything about the content of law. As such, I am a rule-utilitarian.
In addressing the OP, I suggest starting with basic principles. There are only two laws: the non-aggression principle and all others. From a libertarian standpoint, the All Others category is catchall of actions that essentially boil down to violations of the non-aggression principle. Thus, the praxeological explanation of law is just the manifestation of people choosing how to deal with violations of freedom -- perceived or real.
Clayton:I'm inclined to hold that States are truly aberrant and are the result of maladaptation of human beings to the division-of-labor, particularly in law and security.
Alternatively, the acceptance or development of states may not be any more aberrant than a common person putting trust in things they do not know nor care to understand. Regular folks may actually be comfortable gambling with their trust in other people. People accept the state because they prefer it over any other choices seen or unseen that are available to them. It is just a choice just like any other. They are displaying their preferences which are namely:
1) trust in the unknown --- which is normal, humans have no choice but to trust the unknown in the natural world;
and or
if these people in question are fully aware of the fact that the operations of the state involves violations of the non-aggression principle, then:
2) criminality.
Short version: people are stupid and or evil.
Clayton:Depressing and dire, but I think it's just the unvarnished truth.
I go back to my question of what you mean by maladaptive. I do not see human extinction as much of a big deal. I also believe that we are programmed to go extinct just like we are individually programmed to die. Avoiding extinction will likely only occur if more and more people fully embrace liberty. I do not want to see the human race go extinct and thus, I want people to embrace liberty. However, I do not want to see a stupid human race either. So, our maladaptive nature as you call it makes sense to me. We are programmed to trust the unknown and one leads to salvation while the other leads to extinction which is essentially God's message to us.
z1235:This way, both the leader/organizer/elite and the followers/herd are likely to win more (enjoy more advantageous resolution outcomes) than if each of them tried conflict resolution with non-members individually.
Clayton:Second, your argument fails to address the root question: why should the elites group together in solidarity with one another (cartelize) rather than exploit one another just as ruthlessly as they exploit the serfs who are not part of the elites?
Clayton:However, I do not believe we can say anything about the normative content of law from the armchair or through deduction alone. So, we probably disagree on this point.
Clayton:First, it seems your argument is a bit muddled. You seem to be including the "followers/herd" in groups with "leader/organizer/elite". It seems to me that the leaders/organizers/elite would not want to dilute their ranks with any followers/herd - all proceeds derived from the unfair resolution of disputes in their favor should be kept completely within their own ranks. Think of European nobility. The followers/herd are, essentially, the slaves or serfs of the elites. I assume your grouping is motivated by national boundaries. But national boundaries are like fences for cattle; the borders do not represent an affinity of the elites with the serfs they control. Rather, they represent a frontier beyond which the serfs are not permitted to roam and which are not to be encroached by competing elites on pain of war. The followers/herd have little or no say in what group they belong to (accident of birth). The "incentives" to belong to a group, therefore, do not matter.
The first link - was to a thread you created, where I posted.. both the other two links. Your ignored it then, and you've ignored it again. But fine. It directly relates to your 'mushroom' example and 'objective morality'.
Adam Knott: And they simply don't realize or refuse to recognize, it is because one is based on formal reasoning while the other departs from formal reasoning and tries to arrive at a system of universally valid concrete norms of behavior (eating poisonous mushrooms is objectively immoral).
Wrong, totally wrong. Massive strawman & non sequitur right there.
There is a difference between political philosophy & personal morality / ethics. One being universal (political philosophy) & the other being individual, both being objective however.
In Rothbard's writings he was putting forward a system / theory of political philosophy, folks like you then strawman him - much like that 'chimera' post... contending that he was trying to put forward a 'universal' objective value [and force it on others], within the 'individual' / personal ethics realm, which he was not. You and others don't make a distinction & that is epic fail.
"Libertarianism, then, is a philosophy seeking a policy. But what else can a libertarian philosophy say about strategy, about “policy”? In the first place, surely—again in Acton’s words—it must say that liberty is the “highest political end,” the overriding goal of libertarian philosophy. Highest political end, of course, does not mean “highest end” for man in general. Indeed, every individual has a variety of personal ends and differing hierarchies of importance for these goals on his personal scale of values. Political philosophy is that subset of ethical philosophy which deals specifically with politics, that is, the proper role of violence in human life (and hence the explication of such concepts as crime and property). Indeed, a libertarian world would beone in which every individual would at last be free to seek and pursue his own ends—to “pursue happiness,” in the felicitous Jeffersonian phrase." - TEOL, chp 30
In addition; this - http://mises.org/misesreview_detail.aspx?control=307
Adam Knott: For example, in the context of the current debate and discussion, Rothbard begins with a standard cause and effect conception of natural law: "It also follows that when these various things meet and interact, a specifically delimitable and definable result will occur. In short, specific, delimitable causes will have specific, delimitable effects." (EOL p.9)(emphasis added on "will")
For example, in the context of the current debate and discussion, Rothbard begins with a standard cause and effect conception of natural law:
"It also follows that when these various things meet and interact, a specifically delimitable and definable result will occur. In short, specific, delimitable causes will have specific, delimitable effects." (EOL p.9)(emphasis added on "will")
Rothbard is referring to political philosophy... 'natural law as science' is the section that quote is from.
Which makes this as obvious as night and day, because at the end of that natural law section we have:
"IT IS NOT THE intention of this book to expound or defend at length the philosophy of natural law, or to elaborate a natural-law ethic for the personal morality of man. The intention is to set forth a social ethic of liberty, i.e., to elaborate that subset of the natural law that develops the concept of natural rights, and that deals with the proper sphere of “politics,” i.e., with violence and non-violence as modes of interpersonal relations. In short, to set forth a political philosophy of liberty.
In our view the major task of “political science” or better, “political philosophy” is to construct the edifice of natural law pertinent to the political scene." - Chp 5, TEOL (The Task of Political Philosophy)
Additionally (foot note to the text you quoted);
[3]See H.W.B. Joseph, An Introduction to Logic, 2nd rev. ed. (Oxford: Clarendon Press, 1916), pp. 407–9. For a hard-hitting defense of the view that causation states a necessary relation among entities, see R. Harre and E.H. Madden, Causal Powers: A Theory of Natural Necessity (Totowa, N.J.: Rowman and Littlefield, 1975).
You should probably go do that.
Adam Knott: This is intended to apply to the moral and ethical actions of individuals, so that on page 32 he writes: "If Crusoe, on the other hand, had known of the poison and eaten the mushrooms anyway....then his decision would have been objectively immoral,..." Rothbard is saying that knowingly eating poisonous mushrooms (act A) leads to or is co-present with the immorality of Crusoe (consequence B). Eating poisonous mushrooms "will" make one immoral. (not "might")
This is intended to apply to the moral and ethical actions of individuals, so that on page 32 he writes:
"If Crusoe, on the other hand, had known of the poison and eaten the mushrooms anyway....then his decision would have been objectively immoral,..."
Rothbard is saying that knowingly eating poisonous mushrooms (act A) leads to or is co-present with the immorality of Crusoe (consequence B).
Eating poisonous mushrooms "will" make one immoral. (not "might")
Wrong. You are again making the same mistake I mentioned above, that post which you & others ignored.
Chapter 6 - Crusoe Economics, Rothbard is dealing with the individual [personal] here,
"If Crusoe economics can and does supply the indispensable groundwork for the entire structure of economics and praxeology—the broad, formal analysis of human action—a similar procedure should be able to do the same thing for social philosophy, for the analysis of the fundamental truths of the nature of man vis-à-vis the nature of the world into which he is born, as well as the world of other men. Specifically, it can aid greatly in solving such problems of political philosophy as the nature and role of liberty property, and violence.[2]"
[2]Such seventeenth- and eighteenth-century constructs as “the state of nature” or “the social contract” were not wholly successful attempts to construct such a logical analysis. Such attempts were far more important than any actual historical assertions that may have been made in the course of developing these concepts.
Tell me, where any of your out of context quote deals with anything that is political, refers to violence, sphere of rights, aggression or criminality. No where - because he's talking about the individual here, personal ethics. Not political philosophy.
Once again, your post fails to make the distinction - as Rothbard has CLEARLY done, yet obviously not clear enough for some... or maybe he did, and those who continue to turn a blind eye should realise it is their failing, not his:
"For we are not, in constructing a theory of liberty and property, i.e., a "political" ethic, concerned with all personal moral principles. We are not herewith concerned whether it is moral or immoral for someone to lie, to be a good person, to develop his faculties, or be kind or mean to his neighbors. We are concerned, in this sort of discussion, solely with such "political ethical" questions as the proper role of violence, the sphere of rights, or the definitions of criminality and aggression. Whether or not it is moral or immoral for "Smith" — the fellow excluded by the owner from the plank or the lifeboat — to force someone else out of the lifeboat, or whether he should die heroically instead, is not our concern, and not the proper concern of a theory of political ethics.[5]" - Chp 20 TEOL
Rothbard's brief explication of objectivity within individual / personal ethics, can be seen as merely an aid to objective political philosophy.
The critical and unique facts about man and the ways in which he must live to survive—his consciousness, his free will and free choice, his faculty of reason, his necessity for learning the natural laws of the external world and of himself, his self-ownership, his need to “produce” by transforming nature-given matter into consumable forms—all these are wrapped up in what man’s nature is, and how man may survive and flourish. Suppose now that Crusoe is confronted with a choice of either picking berries or picking some mushrooms for food, and he decides upon the pleasantly tasting mushrooms, when suddenly a previously shipwrecked inhabitant, coming upon Crusoe, shouts: “Don’t do that! Those mushrooms are poisonous.” There is no mystery in Crusoe’s subsequent shift to berries. What has happened here? Both men have operated on an assumption so strong that it remained tacit, an assumption that poison is bad, bad for the health and even for the survival of the human organism—in short, bad for the continuation and the quality of a man’s life. In this implicit agreement on the value of life and health for the person, and on the evils of pain and death, the two men have clearly arrived at the basis of an ethic, grounded on reality and on the natural laws of the human organism. If Crusoe had eaten the mushrooms without learning of their poisonous effects, then his decision would have been incorrect—a possibly tragic error based on the fact that man is scarcely automatically determined to make correct decisions at all times. Hence, his lack of omniscience and his liability to error. If Crusoe, on the other hand, had known of the poison and eaten the mushrooms anyway—perhaps for “kicks” or from a very high time preference—then his decision would have been objectively immoral, an act deliberately set against his life and health. It may well be asked why life should be an objective ultimate value, why man should opt for life (in duration and quality).(5)
In reply, we may note that a proposition rises to the status of an axiom when he who denies it may be shown to be using it in the very course of the supposed refutation.(6) Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life, he would have no business in such a discussion, indeed he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of his discussion, and hence the preservation and furtherance of one’s life takes on the stature of an incontestable axiom.
(5) On the value of life not depending on whether it is perceived as one of happiness, see Philippa R. Foot, Virtues and Vices (Berkeley: University of California Press, 1978), p. 41.
(6) Elsewhere, I have written: “if a man cannot affirm a proposition without employing its negation, he is not only caught in an inextricable self-contradiction; he is conceding to the negation the status of an axiom.” Rothbard, Individualism, p. 8. Also see R.P. Phillips, Modern Thomistic Philosophy (Westminster, Md.: Newman Bookshop, 1934-35), vol. 2, pp. 36-37
Look, when you're resulting to quoting massively edited sentences, out of context and attempting to refute a large part of the edifice of liberty - you're going to run into problems and err. My suggestion to you and others would be to put down your microscopes and get a "more complete picture".
@Conza
I would also like to add that people can either want to live socially or be in conflict (it can be different depending on the situation). I believe that Rothbard, with natural law, was trying to create a system for the people who do wish to live socially. That those who wish to resolve their conflicts can have a system that is universal and equal. It's the Silver Rule: Do not do unto others as you would have them not do unto you.
I think it comes down to this: Why should I care about liberty? Why should I want peace? Well, I have no reason other than I prefer to live in peace than in conflict. I prefer conflict resolution (without violence). I recognize that the NAP is the only universal way (it's not universal if someone else is in charge of me). The NAP is the building block of liberty. Thus I value liberty.
I think Rothbard's most important contribution has been to identify that liberty and the NAP are universal, and that the only other universal system is where everyone owns a part of everyone else, which cannot work. So the only universal system (or rule) we are left with is the NAP.
Separately, I still really like the OP. Rothbard described a universal system of liberty, but I like how Clayton describes how conflict resolution in general comes about. It's important to know not only the "why" but the "how". And I think Clayton did a great job of that.
z1235:Excellent article.
Very much agreed. Thanks, Clayton.
z1235:While reading the sections about (1) the law being antecedent to government and (2) bullying, an idea occured to me. The benefits of conflict avoidance between two human agents of approximately equal martial skills (capacity) are obvious. But the game-theoretical equation about profit maximization can be significantly changed by grouping/herding of agents for the purpose of shifting the balance of martial skills (capacity) in their favor thereby affecting conflict resolutions either through threat or excercise of force. This way, both the leader/organizer/elite and the followers/herd are likely to win more (enjoy more advantageous resolution outcomes) than if each of them tried conflict resolution with non-members individually. This, in turn, increases the incentives for becoming a member of the herd/group. If correct (still in early stages of development), this could be (yet another possilble) explanation for the "natural" emergence of princes/governments/states.
Human beings are, by and large, social animals. Nearly every human being has an instinctive need to feel accepted by human beings around him (all other things being equal, of course). Hence, it's not simply a question of one individual vs. one individual. Oftentimes it's a question of one individual vs. multiple individuals, or multiple individuals vs. multiple individuals.
I've come to the conclusion - as I've posted elsewhere on here - that states are essentially tribal in nature. So to answer your question, Clayton, humanity has remained essentially tribal because states are "tribes writ large". While it's hardly true anymore that constituents of states are all related to one another by a known, common ancestry, such was certainly the origin of tribes and, later on, states.
This means that the line between states and anarchy is blurry to some degree. After all, an area of land that's occupied only by a certain tribe could be said to be privately owned by that tribe. It would be a case of collective or joint ownership, to be sure, but it would still be private. Indeed, all ownership is necessarily private, in the sense of being able to prevent access and use.
Certainly, Z is correct that people join groups based on the perceived potential of deriving some benefit(s) from membership. However, I don't think that entirely explains the rise of states. It's obvious that people can and do join multiple groups. People can also be - and are - members of multiple groups simultaneously. Even with states, people can and often do have multiple citizenships.
What is unique about states, then? For one thing, membership in states can be imposed. This imposition of membership can happen in at least one of two ways - by having at least one parent* who has membership (jus sanguinus), and/or by being born within the territory of the state (jus solis). Both betray the tribal origin of states. Such a practice is mainly convenient for imposing obligations on members.
Furthermore, membership, once imposed, can be considered permanent. While the United States, for example, does allow revocation of citizenship, it's rather (if not very) difficult to carry out. A permanent agreement can be known by another name - a sale. Since membership in states typically carries with it obligations, and these obligations are typically performative, one could say that state membership involves the notion of selling all or part of one's self-ownership.
We can see that this notion, too, is tribal in origin. In many (if not most) tribal societies, familial obligations were/are taken much more seriously than in modern states. Corporal and even capital punishment was/is often sanctioned for failing to meet certain (presumed/imposed) obligations. For example, the concept of patria potestas in Roman Law originally allowed a father to kill his offspring - at least under certain conditions (see here).
Of course, people adhering to a moral double standard would enable such things to occur. But I also think that the concepts of inherited and/or permanent obligations are pernicious on their own. Indeed, it seems that one can include them in a moral theory that doesn't involve any double standard.
So what's the answer? I think it lies in the concept of self-ownership. Inherited and/or permanent obligations are necessarily infringements upon this concept. For one to fully and consistently embrace self-ownership, then, he must let go of imputing legitimacy into obligations that are either inherited or permanent. Then the path will be clear for him to abandon faith in the state.
* The specifics of jus sanguinus vary from state to state, AFAIK. Some may require both parents to have citizenship, while others may require only one. Still others may specify that either the father or the mother must at least have citizenship. Again, this seems to derive from varying tribal lineage customs.
The keyboard is mightier than the gun.
Non parit potestas ipsius auctoritatem.
Voluntaryism Forum
Good post, Autolykos.
Autolykos: Certainly, Z is correct that people join groups based on the perceived potential of deriving some benefit(s) from membership. However, I don't think that entirely explains the rise of states. It's obvious that people can and do join multiple groups. People can also be - and are - members of multiple groups simultaneously. Even with states, people can and often do have multiple citizenships. What is unique about states, then? For one thing, membership in states can be imposed. This imposition of membership can happen in at least one of two ways - by having at least one parent* who has membership (jus sanguinus), and/or by being born within the territory of the state (jus solis). Both betray the tribal origin of states. Such a practice is mainly convenient for imposing obligations on members.
The grouping incentive mechanics I described gives a game-theoretic basis for the emergence of tribes, and later, states. The benefit of this particular membership (as opposed to membership to, say, a chess club) is the one of biasing conflict resolutions in your favor. From an evolutionary standpoint, members of tribes, states, herds have managed to arrange better conflict resolution outcomes (which then enter case law precedents) than they'd be able to arrange if acting individually. Whether today such membership is "imposed" or "voluntary" depends on the very law which is itself derived from such past conflict resolutions.
Whether membership is based on territory or blood, is also irrelevant. Mankind has been, and still is, subject to a massive Prisoner's Dilemma. If every human agreed to only enter conflict resolutions as an individual, and never as a member of a larger group, tribe, or state, then rewards in peace, prosperity, and abundance would be tremendous. The optimal strategy for every agent would then be to indeed act as an individual. However, if such humans existed who would not agree to this "deal" and continue entering conflict resolutions as groups, then everyone's optimal strategy becomes to relinquish some self-ownership by becoming a member of a group.
The only means to a world of individuals (instead of herds) is education and enlightement, a critical mass of which would shift humanity from today's "membership is optimal" to the "individual is optimal" equillibrium point.
z1235:The grouping incentive mechanics I described gives a game-theoretic basis for the emergence of tribes, and later, states. The benefit of this particular membership (as opposed to membership to, say, a chess club) is the one of biasing conflict resolutions in your favor. From an evolutionary standpoint, members of tribes, states, herds have managed to arrange better conflict resolution outcomes (which then enter case law precedents) than they'd be able to arrange if acting individually. Whether today such membership is "imposed" or "voluntary" depends on the very law which is itself derived from such past conflict resolutions.
I think it's debatable whether members of tribes and states have indeed managed to arrange better conflict resolution outcomes. But I also think you present a false dilemma - either tribes/states or atomistic individuals. I fail to see how tribes/states are the only possible way for people to group together in the interest of conflict resolution.
z1235:Whether membership is based on territory or blood, is also irrelevant. Mankind has been, and still is, subject to a massive Prisoner's Dilemma. If every human agreed to only enter conflict resolutions as an individual, and never as a member of a larger group, tribe, or state, then rewards in peace, prosperity, and abundance would be tremendous. The optimal strategy for every agent would then be to indeed act as an individual. However, if such humans existed who would not agree to this "deal" and continue entering conflict resolutions as groups, then everyone's optimal strategy becomes to relinquish some self-ownership by becoming a member of a group. The only means to a world of individuals (instead of herds) is education and enlightement, a critical mass of which would shift humanity from today's "membership is optimal" to the "individual is optimal" equillibrium point.
My point about membership being based on territory and/or blood was to point out the justifications given for unilateral imposition of membership in states. How is that irrelevant?
I don't see mankind being subject to a massive Prisoner's Dilemma. The Prisoner's Dilemma is a gross oversimplification of the entirety of human affairs. And again you present the false dilemma that I outlined above.
My opposition is not to group membership per se - it's to the unilateral imposition of group membership and group membership that is considered necessarily permanent.
Here's a case in history: in the face of the Persian threat, a coalition of Ancient Greek city-states was formed. Although it was led by Athens, it was called the Delian League after the island of Delos, where the coalition was consecrated. The member city-states of the Delian League (i.e. those city-states' delegates) solemnly swore a bond of perpetual brotherhood with one another. Years later, after Athens turned the League into its own quasi-empire, some city-states tried leaving it. Athens took that as a casus belli and went to war against the "rebel" city-states. As you can hopefully see, this is an example of membership in a group that was considered (by Athens) to be necessarily permanent - i.e. once you join, you can't leave.
Autolykos: once you join, you can't leave.
once you join, you can't leave.
But your group membership (or lack thereof) is affecting your very ability to negotiate a satisfactory conflict resolution between yourself and the very group you're trying to leave! It's easy for an individual to "leave" another individual of equal martial skills, or to negotiate a "live and let live" settlement with him.
A large martial capacity imbalance seems to affect conflict resolution. An individual is shortchanged when negotiating a conflict resolution with a group. Are you merely proposing/wishing that this "is" ought not be so?
z1235:But your group membership (or lack thereof) is affecting your very ability to negotiate a satisfactory conflict resolution between yourself and the very group you're trying to leave! It's easy for an individual to "leave" another individual of equal martial skills, or to negotiate a "live and let live" settlement with him.
Not all groups are bullies like that. Obviously businesses and the like don't typically keep their employees from quitting.
Essentially, with what you wrote above, we come back to the inherently aggressive nature of the state. Note that whether one considers aggression to be wrong is irrelevant to this point (assuming a particular definition of "aggression" which I think you agree with).
z1235:A large martial capacity imbalance seems to affect conflict resolution. An individual is shortchanged when negotiating a conflict resolution with a group. Are you merely proposing/wishing that this "is" ought not be so?
Translation: people can be overpowered by aggressors. We're back to Rothbard's characterization of the state as "a gang of thieves writ large".
All I'm doing is pointing out that it doesn't have to be this way. It's possible for individuals to form groups which completely respect self-ownership.
Autolykos: All I'm doing is pointing out that it doesn't have to be this way. It's possible for individuals to form groups which completely respect self-ownership.
I agree. Complete self-ownership implies conflict resolution strictly at the individual level. I already stated that this is the desirable "individual is optimal" equilibrium in the Prisoner's Dilemma. But for it to be optimal for everyone, everyone would need to accept it. Partial acceptance, shifts the equilibrium to the "herd is optimal" point for everyone, i.e. trading some self-ownership away in return for increased benefits in conflict resolutions with others.
The groups that completely respect self-ownership are the ones entered for reasons other than conflict resolution. The groups/herds that I am referring to -- the ones specifically entered for the sake of affecting conflict resoution via martial capacity imbalance -- are, by definition, corrosive to self-ownership. States and tribes are one of them. Chess clubs are not.
"An axiom is simply something that is taken to be true without further justification. Axiom A means "Assume A." If A has "risen" to the level of axiom, then it has risen from something else and it is a mistake, then, to call it an axiom - the actual axiom(s) are whatever A has arisen from and A itself is a theorem, not an axiom."
This is all VERY INTRIGUING, SIR, HOWEVER.. An axiom does arise from repeated confirmation.
Moderator note: editted for classiness. -Nielsio
An axiom does arise from repeated confirmation.
No. The purpose of axiomatic reasoning is to separate disagreement into one of two different categories: faulty reasoning or unshared premises. Since the mechanics of reasoning are objective, no one should ever waste their time arguing about things which do not follow from a given set of axioms (assumptions). Either the conclusion does or does not follow from the axioms. Whether or not the axioms are true is a separate debate.
By talking about a proposition "rising to the level of an axiom" Rothbard is implicitly making the mistake that axioms are "propositions which cannot be denied" or - what is supposed to be the same - "propositions which must be accepted as true." No axiom is true on its own merit (even the Law of Non-Contradiction). Axioms are simply propositions that are taken to be true without justification.
z1235:I agree. Complete self-ownership implies conflict resolution strictly at the individual level. I already stated that this is the desirable "individual is optimal" equilibrium in the Prisoner's Dilemma. But for it to be optimal for everyone, everyone would need to accept it. Partial acceptance, shifts the equilibrium to the "herd is optimal" point for everyone, i.e. trading some self-ownership away in return for increased benefits in conflict resolutions with others.
I fail to see how "complete self-ownership" - by which I assume you mean "complete respect for self-ownership" - implies conflict resolution strictly at the individual level. That's why I consider you to be arguing a false dilemma.
On another note, I'll again point out that the Prisoner's Dilemma is a game-theoretic oversimplification of human affairs. That includes conflict resolution.
z1235:The groups that completely respect self-ownership are the ones entered for reasons other than conflict resolution. The groups/herds that I am referring to -- the ones specifically entered for the sake of affecting conflict resoution via martial capacity imbalance -- are, by definition, corrosive to self-ownership. States and tribes are one of them. Chess clubs are not.
My point is that it's certainly possible - and I believe it's happened throughout history - for people to enter into groups that completely respect self-ownership for the (express) purpose of conflict resolution. Keep in mind that respecting self-ownership does not in any way imply pacifism, but it does imply non-aggression.
Feedback appreciated. However, I will point out that my position is critical of Rothbard/Hoppe/et. al. in that I believe we can only make very vague and general statements about the normative content of the law based on experience but we cannot lay down any specific normative content from a praxeological approach. This is because I agree with Mises that a positive methodology (such as praxeology) simply cannot derive normative principles, a point on which both Rothbard and Hoppe explicitly disagree.
The normative content of the law (in my view) derives its validity at the highest level not from the logical arguments which were originally given to justify specific resolutions of disputes but, rather, from the success of certain resolutions in preventing further conflict. And this is not idle hair-splitting, it's a crucially important point that avoids the mistakes that NAP-fundamentalism can lead to. For example, a frequent topic on this forum is the rights of children vis-a-vis their parents. Since children are human, doesn't that mean children are self-owners in every sense that their parents are? So, society must then prevent parents from doing anything to their children that would be illegal if done to a peer - for example, forcing the child to sit in a corner for a timeout (a common non-corporal punishment) or bodily manhandling the child in a dangerous situation (this could be assault if done to a peer), forcing the child to receive unwanted medical treatment (for example, an enema or ice-packs during a high-fever), and so on. If we acknowledge a distinction between the rights of children and the rights of parents, then there is some kind of double-standard. But it doesn't stop here. The rights of mothers are treated differently than the rights of fathers (in divorces), the rights of women in pregnancy, childbirth, even sex itself are treated differently than men's rights. Some of these distinctions are statutory distortions but many of them have a basis in long-standing common law.
In order to rationalize all these distinctions in the rights of different persons, we have to acknowledge that there will be double-standards in law. The question is which are the right double-standards to have? There can be no a priori methodology that is consistent with the Golden Rule and which provides a non-arbitrary answer to this question. Rather, the only way to answer this question is to look to how real disputes arise in human affairs and to see what sorts of social arrangements and legal settlements actually work in resolving and preventing disputes from arising in the first place. This is the trial-and-error process of discovery that I spelled out. Without it, there is no rational basis on which to differentiate between different rights of different kinds of people. There is only a large collection of vehement opinions, all equally valid and invalid. Like economic central planning in which resource allocation decisions are justified on the basis of hot air, so in central planning of law (whether through academic/theological argument or statutory imposition) decisions on how disputes are best resolved are decided on the basis of hot air - nothing but the force of opinion.
Anyway, just wanted to highlight that I do disagree with Rothbard et. al.
Perhaps I wasn't clear enough. I was referring to a much earlier era than monarchies or nations. Let me try to clarify my point. Just think of an island with 100 people on it. Assuming they are all of approx equal martial skills, the incentives for peaceful conflict resolution between any two individuals are obvious. But, one fine morning, one person (a "leader") gets the entrepreneurial idea of proposing a "syndicate" to nine others (the "followers"). The followers would commit their martial skills toward all future conflict resolutions of their leader against any individual outsider. In return, the leader distributes to them a share of the "profits" (the extra goods/services the leader extracts from his conflict resolutions, beyond the amounts he could achieve as an individual). Plus, the "syndicate" could also commit its martial skills toward conflict resolutions of any of its members against outsiders. Thus, both the leader and the followers are better off than resolving conflicts with outsiders individually. Faced with this predicament, an outsider has the options of (1) tackling the syndicate as an individual with the obvious drawbacks that come with that, (2) organizing a syndicate of his own, or (3) joining the "successful" syndicate "voluntarily". Hence, a case for states as means for affecting (biasing) conflict resolutions through unequivocal martial skill imbalance. From what I know about human nature/action, I would venture a guess that a vast preponderance of conflict resolutions through human history have been influenced (biased) by the above mechanics.
But I think the assumption here is that - in the production of security - scale is always the deciding factor. In other words, 100 always beats 90 always beats 80 and so on. I strongly doubt that this is true and, if it is not true, then the production of security is more complicated than just having the largest gang of tough guys. That means that the division-of-labor (specialization) in the production of security should be expected to have the same effect on security producers that it has on producers of any other good or service (that is, the market constantly drives producers to the right scale, not too large, not to small). But we clearly observe that this is not the case with the State - it always grows bigger. If people are not inherently exploitable, then there is no reason to believe that they wouldn't rationally calculate their losses as serfs and pool their money together in order to hire enough tough guys to defend themselves from the established tough guys well enough until they can build their own "anarcho-capitalist" society which - if the body of economics is correct - should be vastly more efficient and prosperous than the centrally-controlled serf-society of the old school syndicate. I am tempted to say this is the American experiment. But the outcome of at least the American experiment is clear: the old syndicate still manages to move in and seize control of the fledgling "free market" country and subjugate it to the same Old World model. I keep seeing exploitability (incorrect calculation of the benefits of tolerating a State) as the primary explanation.
Merlin used to have an old thread on this subject, (How the State has outdone Anarchy (until now)) but I can't seem to find the link to it. Basically, his theory is that States enslave people and in the process force the entire population to become more production-oriented (over generations). That is, people have to work harder to satisfy their taskmasters but the most successful ones end up passing on their genetic disposition for workaholism. Because of the productive potential of technology, older social systems and genetic dispositions that are too lackadaisical end up being subjugated by the societies which have been subjected to this process for a longer time and then begin the same process of selection and being driven to a greater disposition towards productivity. Merlin sees this process as eventually coming to an end as the species is essentially (and unwittingly) becoming more and more capitalist/production-oriented through this process. As a result, it is becoming harder and harder for the State to maintain the population in a condition of enslavement as the marginal productivity of the State's process of enslavement over the new, naturally higher productivity of individuals is constantly decreasing.
It's a very stark point of view but I find it to be difficult to refute.
Clayton, a very thought-provoking read, thank you for the link, as well as the time you put into this. I'm aware of much of the history of common vs. statutory laws, but your take on it yielded things I had never considered (I may respond later with specifics as time permits).
Again, thanks.
Clayton, I don't see how trial and error will necessarily produce good results. Trial and error lead society to numerous conflicts and wars. Why do you think it would be different now?
Besides, what was proved to be effective for some people may prove to be ineffective for others. For example males might discover by trial and error that it is effective to enslave women, white people can discover through the same method that it is beneficial to enslave black men. It was trial and error that led to slavery, occupation and mass murders I am not terribly excited about that.
I don't see how trial and error will necessarily produce good results
Each individual trial produces a result: either success or failure. Trial-and-error (many trials) doesn't produce a result, it produces knowledge. This is true whether we are speaking of laboratory experiments with quantum particles or resolutions to legal disputes.
what was proved to be effective for some people may prove to be ineffective for others
This, too, is knowledge.
Okay, so how do you explain 10000 years of slavery and wars? It seems like there was enough knowledge collected by trial and error to come up with some effective system such as NAP. Yet It didn't happen yet.
@Eugene: NAP is nowhere mentioned in the OP.
You are recommending to rely on trial and error in your conclusion paragraph. So far trial and error produced knowledge that did not help society to organize itself in a way that you and I would approve of. So why do we want to continue trying what was already tried? We know it doesn't work. Perhaps theorizing will produce the best results.
knowledge ... did not help society to organize itself in a way that you and I would approve of.
And how do you know that you don't approve of, for example, slavery? On what basis? How did you come to be sure that slavery is a bad idea?
I see what you mean. But you also must recognize the benefit of theory, for example John Lock's writings. It was a lot of armchair philosophy and theorizing, yet it influenced whole societies. Philosophy and abstract thought are needed to generalize these series of trials and errors into an idea, into something that can become rule and finally law. So both practice and theory are needed. I think when it comes to children's rights a lot of theory is needed and with time we'll get there with theory alone.
You don't need to convince a Misesian that theory is important. The point, however, does not revolve around basic principles as in, for example, Mises' program of liberalism, but in the detail of the resolution of disputes.
I think when it comes to children's rights a lot of theory is needed and with time we'll get there with theory alone.
You and I already have several existing threads debating the children's rights issues.
Children's rights are more fundamental than many other social norms because they are actually hardwired into the brain - they are not merely encoded in the culture, they are actually wired into our physiology. Despite the fact that it contradicts the absurd homo economicus model of the human being, parents do in fact give up their own lives for the sake of their children. In fact, the precondition for any child's existence (pregnancy and childbirth) takes a heavy toll on the mother's body, as a rule. Yet that price was willingly paid billions of times over because our mothers wanted to pay that price in order to have us.
To extend this issue even further, I believe that human biology and its maladaptedness to the modern environment since the Agricultural Revolution is the root cause of most of the ineradicable double-standards in human law. For example, men and women are treated differently under the law. The PC police pretend this is not the case but it is the case, in practice. The rights and duties of a male and female in a romantic relationship are not treated symmetrically by the law. In particular, the rights and duties of a man and woman are asymmetrical with respect to the parenting of the children - the mother is almost always treated with precedence over the father. There are good biological reasons why things should be this way, despite the fact that it's clearly unfair if you reason about the father and mother as unisex human entities.
It is my view that private law (market competition in the production of dispute-resolution services) provides a path to the minimization of double-standards in law. By contrast, statutory law results in the aggrandization and expansion of double-standards (privileges) to the maximum extent - the only limiting factor being the collapse of society under the burden of these privileges. But, you say, there will be double-standards under private law, too! So what? This is like noting that there will still be crime under private law. So what?