Minarchist,
A bit of constructive criticism (don't take offense, none is intended): If something is "true," "valid," or "justified," you don't need to put the word "objectively" before it. Unless we are talking about meta-epistemology, no one is going to mistakenly believe you are talking about subjective truths. It can also come across like you are trying to puff up an argument by making it sound like its somehow more true. My roommate has a habit of saying "logically true," and it drives me crazy for the same reason. With that out of the way...
You really need to explain what your pseudo-state minarchism actually entails. You hint that it is voluntary and that I am free secede from it, but what happens if I secede and create my own pseudo-state? I'm interested to see how your idea differs from the others that have been suggested.
The other thing I'm not sure about is what you mean when you mention a natural monopoly in the law industry. Are you talking about the laws themselves or the administration of the law?
If its the former, I don't see how it ties into a pseudo-state. Every nation in the world could adopt the exact same law, yet we would still recognize them as separate states. Even if the law stemmed from a single source (like some sort of libertarian consitution), there is no reason that it couldn't be administered, adjucated, and enforced by any number of firms on an open market.
If its the latter case, I completely disagree. The execution and administration of law benefits from the division of labor and competition between firms.--just like any other good. Furthermore, if permitted, there's no doubt in my mind that communities and individuals who felt that the pseudo-state failed to properly enforce property rights or adjudicate disputes would take the task upon themselves.
they said we would have an unfair fun advantage
While this is not directly to your point the scenarios you posed seem to be an awful assumption-e.g. why couldn't the second scenario play out as 3 years (to use your figures) of absolute liberty and 30 years of minimal statism thus making the second scenario measurably "better" using the same criteria?
You're quite right. Those are only hypothetical scenarios, which I introduced so that I could demonstrate how a debate between minarchism and anarcho-capitalism might play out if the criteria used were purity and sustainability. We can and should debate just how sustainable each system really is. Of course, there's no way to assign each system a specific number: 20 years, 5 years, etc. And, as you say, there's no way to know definitively how their evolution would proceed: maybe the minimal state would actually become tyrannical in 5 years, stay that way for 2, and then reform and remain minimal for another century. Who knows? But, if we look at each aspect of the problem carefully, we should be able to make judgments about relative sustainability. We should be able to say that system A is more or less sustainable (even though we can't quantify it) than system B.
People are compelled to make decisions without complete knowledge all the time. Imagine that we are actually faced with the decision (the magic button that allows us to create a society from scratch, but only once); we must choose something. We may not have all the information we'd like, but we have to try to make the most rational decision possible given whatever information we do have.
Looking back, I think I meant to express that an apples to apples comparison is objective whereas an apples to oranges comparison is subjective. That is, it is objectively true that 10 apples is more than 5 apples. But the price of apples in terms of oranges or vice versa is subjective, a value-judgement.
As for the rest of your comment, yes, I do need to explain my own position further. And that will be the next thing I do in this thread.
At one time I was a minimal statist; I believed that the State was a necessary evil, necessary to protect life, liberty, and property. I thought the State needed to operate a military, courts, and police. I was uncomfortable with this level of statism, though, so I started thinking about ways to strip this minimal State even further. We can put the military question to the side, because at the theoretical level, we can assume that the system we're talking about will be implemented globally. That leaves courts and police. After reading David Friedman, I realized that public police were unnecessary, and also public prosecutors. Only the courts remained, which could be funded via user-fees. At this point, I wondered: should I just become an anarcho-capitalist? But after studying anarcho-capitalism, I become very critical of the idea of polycentric law. I struggled with this for a long time, trying to think of ways to overcome the problem I envisioned polycentric law generating. I couldn't find any solution, so I went back to my ultra-minimal State, which consists of nothing but courts. I decided to find a way to de-State this State: to turn it into effectively a DRO. I realized that my objection to polycentric law (that it would inevitably yield a monopolist, of unknown quality) is also a reason to believe that my minimal State could remain a monopolist even stripped of its coercive powers and effectively made into a DRO.
The basic outline of this pseudo-State is as follows (assuming global implementation; if only national, then a military and a federal legislature is required):
The only institution of government is the court, or courts, which are arranged in a hierarchy as they are now, to allow for appeals and the settling of disputes among lower-level courts. There is a constitution defining the entire institution of government and defining the basic principles of law. Judges are elected by citizens for single-terms. The courts are funded solely by user-fees. There are no public police, no public prosecutors. The court hires its own security only for the purpose of defending itself from acts of violence; they are not enforcers of the courts rulings. The courts are entirely passive; i.e. they only settle disputes which are brought before them by alleged victims. All law is effectively civil law. Private courts are not prohibited by law. If John sets up court ABC, the government court will not send out goons to shut him down. Any citizen may file suit at court, and has constitutionally defined rights in the event that suit is filed against him. The sole responsibility of citizenship is to enter the pool of people from whom juries are drawn. Citizenship is offered to all children of citizens at the age of 18; a contract is signed. It is offered to others at the discretion of existing citizens. Citizenship can be abandoned unilaterally by any citizen at any time. Citizenship cannot be withdrawn by the government under any circumstances.
Returning to the function of the government court, I said that there is no prohibition against private courts, but the government court will not recognize the rulings of ABC private court. For example, if John brings suit against Bob in ABC court, and ABC court rules that Bob must pay John $100, and John takes this $100 from Bob, and Bob subsequently visits the government court and claims that he is the victim of theft at the hands of John, the government court will tend to agree: i.e. it does not recognize ABC court's ruling granting John the judgment against Bob, and therefore views John's seizure of $100 from Bob as theft. (That said, if John and Bob prior to ABC court's ruling contractually bound themselves to abide by ABC court's rulings, then the government court would acknowledge John's right to take the $100 from Bob, just as it would acknowledge any other private contract.)
In the absence of a legal barrier to entry, why wouldn't the private courts simply outcompete the government court? Remember the court doesn't collect damages, or do anything else other than hear and settle disputes brought before it. The collection of damages post-judgment is a private affair. Either the successful plaintiff does it himself, or he hires an agent to do it on his behalf. If company XYZ is hired by a successful plaintiff, for whom ABC private court has just ruled, and that company goes after the defendant, and perhaps seizes some of his property, or seizes him and puts him in debtors prison, that defendant could subsequently file suit in government court against company XYZ for theft, or kidnapping, or whatever it may be. Again (unless the defendant previously bound himself by contract to accept the ruling of ABC court) the government court will not recognize the legitimacy of ABC court's ruling, and will find company XYZ guilty of theft, kidnapping, whatever. If the government court rules against company XYZ in this case, other collections companies will come after the relevant persons at company XYZ. This gives company XYZ a strong incentive not to enforce judgments from private courts. As long as a preponderance of collections companies recognize the legitimacy of the government court, it is not in the economic self-interest of any one collections company to enforce the ruling of any rival court on behalf of some plaintiff. The result is that the rulings of private courts, except when both parties are bound by contract to accept the ruling, are unenforceable. If the private court's rulings are unenforceable, then all contractors down the line (lawyers, investigators, etc - all of whom are generally going to be paid out of the eventual judgment, as with civil cases today) lose their incentive to do business with clients who wish to patronize this private court. And of course the clients themselves lose their incentive to patronize the court; why bother if even a verdict in their favor gets them nothing because no company is willing to go out and collect, and no lawyers or investigators are willing to take on the case in the first place? Even if the client wants to patronize this court, he finds it virtually impossible.
In short, the private court cannot compete with the services provided by the government court. The advantage which the government court has is not based on the enforcement of a monopoly. The very fact that the government court once has a monopoly (which we are giving it by pushing our magic button to create this society to begin with) means that would-be competitors cannot effectively compete. This is the same reason that a monopolist emerging from a polycentric legal order would not be ultimately driven out through competition, as would a monopolist is in the steel or the rubber industry. Law is conducive to monopoly, whereas other industries are not.
What's special about the law industry? It is perfectly possible for 95% of the population to buy Fords, and the other 5% to buy GM. One man's buying of a Ford does not lessen the value of another man's GM. But, it is entirely impossible for 95% of the population to patronize a government court, and 5% to patronize a private court. Of course, the 5% could patronize a private court, in the sense that no one will use violence to stop them. However, that 5% had better plan not to interact with other 95%, because if any dispute arises between a member of the 5% and a member of the 95%, and each party goes to their respective court to seek satisfaction, the ruling of the private court is going to be unenforceable. No lawyer, no investigator, no collections company will contract with the plaintiff at the 5% court. He will have to fund out of his own pocket all the lawyering and investigating, and then find himself unable to hire anyone to collect the damages if he wins. He can try to collect them personally, but then he will - in the eyes of the government court - be committing a crime. Whereas the member of the 95% will have no difficulty hiring professionals and collecting on a judgment if he wins. What this means is that a competitor to the government court cannot possibly start at 1% or 2% or 5% or 10% of the market; at that level of market share, this court's rulings will be unenforceable, and thus it cannot render the desired service to its clients. To effectively compete with the government court, the private competitors would have to begin right away at a large market share, presumably something like a majority or near-majority. And that is not the way competition in the free market ever operates. The way for competitors to enter the market against a near-monopolist is always for them to begin small and grow. The unique characteristics of the law industry prevent this from happening, ergo, ousting a monopolist in the law industry through free competition is virtually impossible.
Thus the pseudo-State, the government court-system, can remain a (natural) monopolist, without having to use any violence to keep out competitors.
You might be thinking that I left out prices altogether. Won't competitors to the government monopoly be able to offer better prices? Certainly the monopoly which the government enjoys will make them less efficient, and eventually competitors will be able to undercut their prices. However, what good is a lower-priced court if it's rulings are entirely unenforceable? The court can be funded by philanthropists and charge nothing, or even pay people to use it, and still no rational person is going to make use of its services in a dispute with a client of the government court when they know that trying to enforce the private court's ruling could well land them a conviction as a thief or kidnapper or whatever in government court; i.e. when the person who their private court convicts, and from whom they collect that judgment, subsequently files suit against them in government court.
Welcome to the Mises Forum, Minarchist.
I hope you don't mind if I don't reply to your entire post. There are a few main themes running in it that I'd like to address.
First off, your statements about private courts imply that they would always and necessarily make decisions that are unjust in the eyes of the government courts. Why make that assumption? I see no logical reason for it.
Second, you seem to discount the possibility that everyone using private courts will bind themselves contractually to those courts' decisions. Why is that?
Third, how is this constitution to be adopted? Who is responsible for drawing up its provisions? (I'm assuming you'd be part of it. ) Would there be any procedure for amendment? Who has the final say (and thus ultimately a monopoly) over how it's to be interpreted? Finally, and this might be a nitpick, but why set the age of citizenship at 18?
Finally, what mechanisms would be in place to try to prevent the government courts from making unjust decisions? For example, would government judges be subject to recall? How long are judges' terms?
The keyboard is mightier than the gun.
Non parit potestas ipsius auctoritatem.
Voluntaryism Forum
You've encouraged me to make an account as well. :)
With regard to the OP, I think mono- versus polycentric law is a pretty interesting question and a good way to put it. I don't think it's necessary to link them to their implementations like you did, calling one minarchist and the other anarchist, which seemed to confuse the issue you wanted to discuss. Your criteria for judgment are interesting and I'm not sure I agree with them, but I'll comment a bit later with some context. With that said, I have two questions about your proposed society that highlight the issue:
1) What makes the judgments of the government courts special? I believe you said that enforcement of judgments was private. How does this prevent alternate arbiters and enforcers from contradicting the government courts? What makes government work is its monopoly of force, which yours does not have. In essence, I guess I'm not sure where you arrive at the conclusion that law has a natural monopoly.
2) As I think others have mentioned, what prevents secession and establishment of a new justice system? The reason I do not believe monocentric law can ever work is because it requires a violation of the principle it's founded on, the non-aggression principle. In concert with point number one, a monocentric system (from what I know now, anyway) appears to need also a monopoly of force to maintain its status as authoritative.
From what I've read, a polycentric system would naturally lead to 'common law' that most people agreed with, despite different groups desiring different laws (such as religious groups). There is no requirement for the common law to be universally accepted or enforced, created artificially by a committee, or even to be the only 'common' set of laws. I believe it quite possible for different laws to exist in the same culture. Why? I'm still learning about it (suggestions are welcome), but essentially because law is communal, and those who are unwilling to accept any arbitrations against them would essentially be outlaws and be less and less likely to have successful arbitrations for them.
Finally, I disagree foundationally with monocentric law because I believe it to require coercion. As much as we might like to, we can't make the world agree with or abide by any one set of views, even something as simple and common-sense as the non-aggression principle. Applying the non-aggression principle to any system of law requires that those who want to form alternate systems be allowed to. We'll sit and wait smugly for them to crawl back after their more restrictive systems fail, but we have no right to prevent those who want to from doing so. It's this particular facet of anarcho-capitalism and polycentric law that makes it necessarily unstable, and so to bring it back to your criteria I don't think stability is a good measure of mono- versus polycentric law. Thanks for the thought-provoking posts and remaining cordial throughout.
Welcome to the Mises Forum, Minarchist. I hope you don't mind if I don't reply to your entire post. There are a few main themes running in it that I'd like to address.
Thank you, and I don't mind at all.
The government court views all violations of the NAP as crimes. The role of the court is to settle disputes concerning alleged violations of the NAP, and to authorize retribution on behalf of the plaintiff when the court determines that a violation has in fact occurred. Any act of retribution undertaken without the authorization of the court is viewed by the court as a violation of the NAP, and therefore a crime. It follows that, if ABC court rules in favor of the plaintiff in a given case, and the plaintiff - in accordance with the judgment - goes out and seizes some property from the defendant, the government court views that act of seizure as a violation of the NAP and a crime. It might happen that the government court would have ruled in this case in exactly the same way as ABC private court ruled, but the government court does not recognize the legitimacy of the plaintiff's act of seizure for the sole reason that the government court did not authorize it. The private courts courts could rule justly 100% of the time, they could rule exactly as the government court would have ruled 100% of the time, but the government court will not recognize the right of those courts to authorize retribution, which means that it will view any acts of violence committed by plaintiffs in accordance with the judgments of private courts not as legitimate retribution, but rather as violations of the NAP.
Let us suppose there is no government court. And let us suppose that society is divided into two groups, A and B. All the members of group A subscribe to and contract with court A, and all the members of group B subscribe to and contract with court B. When two members of group B have a dispute, they take their dispute to court B, and the decision is binding, because they both already agreed in contract to accept court B's rulings. The same with a dispute between members of group A, they are bound to accept the ruling of court A. If members of group A and members of group B have no societal interaction, personal or commercial, and no disputes arise, then there is no problem. Of course, in this case, we also don't have two legal systems operating in a single society; rather, we have two societies each with their own legal system - i.e. if the two groups don't interact at all, then they are not a society, by definition. What's interesting is what happens if members of group A and members of group B do interact, and disputes do arise between Bs and As. How do these disputes get settled? There are three possibilities: 1) court A settles the dispute, 2) court B settles the dispute, 3) court A and B agree to binding arbitration through a third party, let's call it court C. In any of these cases, either the A-person or the B-person in the dispute is going to lose. Remember, what a subscriber to a court is paying for is not just access to the court system, but verdicts in his favor! Let;s suppose person A wins the case, because the third party was favorable to the A-camp. And let's suppose this trend continues for a period of months as new disputes arise; i.e. the A-person keeps winning whenever the dispute goes to third-party arbitration. Well, now the subscribers to court B, who keep losing whenever they have disputes with subscribers to court A, are starting to wonder just what the heck they're getting for their money. Court B starts to lose subscribers, and court A stands to gain them. Over time this leads to a situation where court B is totally worthless when it comes to disputes with subscribers to court A. Court B is only good for settling disputes between its own subscribers. And now what do we have? In effect, we have a government court (court A) which settles most disputes, and a private court (court B) which only does binding arbitration among its own small group of members.
The point is that there cannot be two competing courts in the same society (by "society" meaning a group of interacting people). There can be various small courts which settle disputes among their own subscribers, but there must also be a dominant court which settles disputes between subscribers of different private courts. In practice, what my system would likely result in, is a syste, whereby every citizen subscribes to the govenrment court and to some private court of his choosing: perhaps based around ethnic or cultural group with some shared non-libertarian values. Disputes among such "little societies" would be settled by those private courts, but whenever disputes arose between members of different "little societies" they would have to be settled by a third party. As I tried to show above, the emergence of a dominant court is inevitable. By establishing my "government" courts from the start, we are acknowledging that fact, and saying that we don't want to leave the structure of this all-important dominant court to chance: we want to structure it (through a constitution et al) in a way that best protects libertarian principles.
Third, how is this constitution to be adopted? Who is responsible for drawing up its provisions? (I'm assuming you'd be part of it. ) Would there be any procedure for amendment? Who has the final say (and thus ultimately a monopoly) over how it's to be interpreted? Finally, and this might be a nitpick, but why set the age of citizenship at 18?...Finally, what mechanisms would be in place to try to prevent the government courts from making unjust decisions? For example, would government judges be subject to recall? How long are judges' terms?
Once we decide what the proper functions and limitations of this "government" ought to be, then the floor is open to discussion of the best way to structure this government (and its constitution) in order to achieve the desired results. Some of the details (e.g. age of consent, length of terms) will always be somewhat arbitrary. We know that 5 is too young for the age of consent, and 30 is too old, but why 18, rather than 17 or 19...there's no good answer to that question. In order for society to function, we must come to a consensus on these conventions, and it so happens that 18 or thereabouts seems to work pretty well and mostly satisfy everyone. The form of the government is just a means to an end, after all, so we can (for once) consider empirical evidence and put on our utilitarian hats.
I'll stop with that for now, but I'll be back to specifically answer your questions above, and to give a better outline of the government I'm talking about in general.
Thanks for your reply, Minarchist.
Minarchist:The government court views all violations of the NAP as crimes. The role of the court is to settle disputes concerning alleged violations of the NAP, and to authorize retribution on behalf of the plaintiff when the court determines that a violation has in fact occurred. Any act of retribution undertaken without the authorization of the court is viewed by the court as a violation of the NAP, and therefore a crime. It follows that, if ABC court rules in favor of the plaintiff in a given case, and the plaintiff - in accordance with the judgment - goes out and seizes some property from the defendant, the government court views that act of seizure as a violation of the NAP and a crime. It might happen that the government court would have ruled in this case in exactly the same way as ABC private court ruled, but the government court does not recognize the legitimacy of the plaintiff's act of seizure for the sole reason that the government court did not authorize it. The private courts courts could rule justly 100% of the time, they could rule exactly as the government court would have ruled 100% of the time, but the government court will not recognize the right of those courts to authorize retribution, which means that it will view any acts of violence committed by plaintiffs in accordance with the judgments of private courts not as legitimate retribution, but rather as violations of the NAP.
With all due respect, I fail to see how this notion of any unauthorized (by a government court) retribution being a violation of the NAP is consistent with the NAP. Whether retribution (I prefer the term "restitution") is justified under the NAP has nothing to do with whether it's permitted by a single specific group of people (or any subset thereof). In fact, you go on to characterize actions that are just under the NAP to nevertheless be crimes in the eyes of the government. I think that's a fatal contradiction in what you propose.
Unfortunately I don't have the time right now to respond to the rest of your post, as my response to it would be rather long and involved. But I plan on posting it soon, either as a separate post or as an edit to this one.
Imagine this scenario: Bob murders John in a fit of rage. John's heir (John Jr) inherits his right of retribution against Bob. John Jr exercises his right of retribution and kills Bob. However, Bob's heir (Bob Jr) does not believe that John Jr was justified in killing Bob, because he doesn't believe that Bob was guilty of killing John Sr in the first place, therefore John Jr inherited no right of retribution, and therefore John Jr's killing of Bob was plain murder. Rather than exercising his right of revenge personally (as John Jr did), Bob Jr decides to file suit against John Jr for murder in the government court.
Now imagine this scenario: Bob murders John in a fit of rage. John's heir (John Jr) inherits his right of retribution against Bob. John Jr does not kill Bob personally, instead he files suit against Bob in private court, which rules on his behalf, and John Jr then contracts with a company to capture and execute Bob. As in the previous scenario, Bob Jr then files suit against John Jr for murder in government court.
In each scenario, the question is this: how should the government court treat a person brought before them as a defendant who is claiming that the act of violence he admits to (or has been proven guilty of) committing (or to hiring others to commit) was justified as an act of legitimate retribution?
I agree with you that a court which finds a person guilty of a crime for acting upon a legitimate right of retribution is itself in violation of the NAP (or rather will have been once the ruling is actually enforced). Of course, it is always possible for any court (or anyone making the determination) to error in its determination of the facts of the case. That's not our concern at the moment. What we are saying is this: a court cannot justly convict a person of a crime who the court knows was acting upon a legitimate right of retribution. If the defendant did indeed have a legitimate right to commit the act of violence in question, then the court cannot justly rule against him. If the defendant did not have such a right, then his act of violence is a violation of the NAP, and the court must rule against him in order to achieve justice for the plaintiff. The question is now: how does the court determine whether or not the defendant in question had a legitimate right to commit his act of violence? This is a question about determining the facts of the case, and the burden of proof is on the defendant: it's like an affirmative defense.
Per the scenarios above, this means that John Jr must prove that Bob killed John, thus granting him (John Jr) the right of retribution against Bob in the first place. The burden of proof is on the defendant to prove that the violation of the NAP, which he is claiming justifies his own act of violence, in fact occured. However, regardless of the facts of the case, John Jr robbed Bob of the ability to defend himself at his own trial, by killing him before any trial occurred, and thus effectively forced a trial of Bob in absentia, which is always advantageous for the prosecution (i.e. John Jr). For this reason, to nullify any advantage which the plaintiff has gained, John Jr should have to prove Bob Sr's guilt to a higher degree of certainty than is ordinarily required to prove guilt.
So, no government court will recognize the ruling of any private court; i.e. whenever a plaintiff brings suit against a defendant in government court, the government court will always make its eventual ruling on the basis of its own proceedings, without reference to the ruling of any private court which may have ruled previously on the same matter. If a defendant wishes to prove that his act of violence was justified, he has to prove in the government court that it was justified. The government court is not going to take into consideration the fact that John Jr believes his killing of Bob was justified, or the fact that private court ABC ruled that John Jr's killing of Bob was justified; the government court will only take into consideration what evidence and arguments are presented in government court, and will rule on that basis alone.
(Note that all of the above only concerns defendants in government court who are not subscribers. The government court could require its subscribers to waive their right of retribution, which would not be a violation of the NAP, because subscription is purely voluntary. If that road were taken, no subscriber could use any violence at all (saving perhaps self-defense, as defined by the contract between government court and subscriber), because they would have voluntarily forfeited their right of retribution to the government courts.)
EDIT: To put it another way, when I say "the act of violence is unjust because the court has not authorized it, " I mean "the act of violence is unjust in the eyes of the court because the court has not yet found it to be just," which is the same as the following truism: "the court does not view the act as just until it finds the act to be just."
Just so you know, I still plan on responding to the rest of your last post.
Now then, do you agree that there's a difference between finding something to be just, finding it to be unjust, and not yet finding it to be either just or unjust? If so, then you've been implicitly appeal to a false dilemma. A government court not yet finding an action to be either just or unjust is in no way the same as it finding the action to be unjust.
If the government court system wants to always make its eventual rulings only on the basis of its own procedings, that's fine. But that's not what it sounded like you were saying earlier. It clearly sounded to me like you were saying that any ruling of a non-government court, whether just or unjust under the NAP, would necessarily be a crime (i.e. a violation of the NAP) in the eyes of the government courts. Not only is that clearly a contradiction itself, but it also contradicts what you're now saying. If in fact you're amending your previous statement, then please be explicit about it.
To be honest, though, I don't see what's so special about this government court system vis-a-vis non-government court systems. You're placing great emphasis on the notion of the government court system "going it alone". Why? What's so special about that? Couldn't non-government court systems do the same thing? And your presumption that the government court system would rely on voluntary subscriptions and fees means that it's operating just as any other private business would, which means it can certainly go out of business just as any other private business can.
Honestly, I don't see this government court system as being a government at all, because it holds no monopoly, not even a territorial one. "Going it alone" in terms of settling disputes is not the same thing as holding a monopoly in those terms. If the government court system makes a ruling that a lot of people don't like (right, wrong, or indifferent), they're certainly able to stop employing it when future disputes arise.
You might counter this with the notion of the government court system being like the Microsoft or Google of dispute resolution - taking up such a huge market share that most people are disinclined to use alternatives. But how did such huge market shares come to Microsoft and Google in the first place? In large part* by giving people things they want more efficiently than their competitors. Nothing lasts forever though. Even the highly hampered market operating in the US today is merciless in reallocating capital away from businesses when they make mistakes (as judged by market participants). Look at Kodak, which has had a virtual monopoly over the photographic-film industry, and has recently filed for bankruptcy. Apparently the leaders of Kodak completely overlooked the potential of digital photography - until it overlooked them.
I wouldn't be surprised if, at any given time in a stateless, free-market society, there was a "market leader" in the court or dispute-resolution business. But I don't expect that "market leader" to stay the same for decades, let alone centuries.
* I don't discount the possibility that both Microsoft and Google have gained to some extent from government favors and so forth.
Now then, do you agree that there's a difference between finding something to be just, finding it to be unjust, and not yet finding it to be either just or unjust? If so, then you've been implicitly appeal to a false dilemma. A government court not yet finding an action to be either just or unjust is in no way the same as it finding the action to be unjust. If the government court system wants to always make its eventual rulings only on the basis of its own procedings, that's fine. But that's not what it sounded like you were saying earlier. It clearly sounded to me like you were saying that any ruling of a non-government court, whether just or unjust under the NAP, would necessarily be a crime (i.e. a violation of the NAP) in the eyes of the government courts. Not only is that clearly a contradiction itself, but it also contradicts what you're now saying. If in fact you're amending your previous statement, then please be explicit about it.
I now realize that my earlier language was misleading, and I apologize; it was unintentional. I never meant to say that an act of violence is objectively a violation of the NAP unless it's been authorized by the government court. What I mean is that a government court views all acts of violence as crimes (violations of the NAP) unless/until the government court authorizes them: i.e. determines that the actor was acting within his right of retribution and makes a ruling to that effect. There is an objective fact of the matter (X-action is or is not in fact a violation of the NAP) which is not contingent on how the government court (or any court or person) views the matter. And then there is the government court (or any third party involved in dispute resolution), which is trying to discover this objective fact of the matter, and to make a ruling on that basis.
I hope that makes my position plain.
Are they? That's the essential question. I've argued that they are not. Sure, no one will coerce them into staying with the government court or punish them for using a rival private court. However, my argument has been that in practice a law-monopolist such as the government court cannot be ousted in the way that monopolies in other industries have historically been ousted: i.e. by a small rival emerging and gradually gaining market share. Why doesn't this work with the law industry? Because legal services (i.e. dispute resolution services) are fundamentally different from all other goods or services. A court with 5% of the population as its clientele cannot successfully compete with a court which services the remaining 95%. In disputes between clients of the 5% court and clients of the 95% court, the latter alone will find its rulings enforceable. Why? Because the third party contractors who are in the business of enforcing rulings cannot enforce two contradictory rulings, they must choose one over the other, and they have every incentive to choose the larger and more reputable court. And this tendency feeds on itself. The contractors choose the dominant court because it's rulings are enforceable, and it's ruling continue be enforceable because the contractors keep choosing to enforce its rulings over those of its rivals whenever a dispute arises between them. Can this cycle be broken and the dominant court be ousted by a rival? Yes, absolutely. If a sufficient proportion of consumers (and/or contractors) more or less simultaneously choose to patronize a rival court. But that kind of event sounds more political than economic. Very rarely do firms suddenly jump from 5% to 50% of market share; it's almost always a gradual process by which a rival ousts a monopolist. My point is that, if this gradualism is impossible because of the inherent nature of the law-industry, then a law-monopolist is quite secure. If all the law-monopolist has to worry about is a sudden "coup" by consumers, who switch to a rival en masse and all at once, well then this is the same risk to the monopolist as posed by an election. If the people can organize (and they would have to organize, consumption patterns don't shift this way without conscious effort) to switch to another court, then they can organize politically to alter whatever personnel or practices of the government court that they find objectionable. This is a kind of natural escape valve for displeasure with the government court. It should be easier to affect it politically than to affect a market coup and make one of the rivals viable.
You might counter this with the notion of the government court system being like the Microsoft or Google of dispute resolution - taking up such a huge market share that most people are disinclined to use alternatives. But how did such huge market shares come to Microsoft and Google in the first place? In large part* by giving people things they want more efficiently than their competitors. Nothing lasts forever though. Even the highly hampered market operating in the US today is merciless in reallocating capital away from businesses when they make mistakes (as judged by market participants). Look at Kodak, which has had a virtual monopoly over the photographic-film industry, and has recently filed for bankruptcy. Apparently the leaders of Kodak completely overlooked the potential of digital photography - until it overlooked them. I wouldn't be surprised if, at any given time in a stateless, free-market society, there was a "market leader" in the court or dispute-resolution business. But I don't expect that "market leader" to stay the same for decades, let alone centuries.
To be clear, I fully appreciate and agree with the Austrian position on natural monopolies. Just this morning I was listening to Rothbard's lecture at NY Polytechnic where he effectively demolishes the myth of natural cartels/monopolies in American history. I get this. My position is simply that there is an inherent feature of law which makes it an exception to the rule. To put it roughly, one might say that what makes dispute resolution services unique (and capable of sustaining a natural monopoly) is the fact that one person's having his legal services can and does affect the quality of another person's legal services. As I said earlier, there's no problem whatsoever with 5% of the population owning Fords and the rest owning GM, with Ford competing against GM in price and quality, but it is inconceivable that 5% could patronize one court and 95% patronize another, and that the 5% court could compete at all with the 95% court: i.e. because for the 95% court to provide its clients with the services they demand, the 5% court must be unsuccessful in providing its clients with the services they demand, and vice versa. It's kind of a zero-sum game: not in financial terms, but in the sense that in disputes, someone always wins and someone always loses. Whereas, re cars, buyers of Fords getting their Fords in no way conflicts with buyers of GMs getting their GMs. They can both be satisfied; it's not a zero-sum game. This is a fundamental distinction between law and all other industries, and it means that the market dynamics for the law industry will be unique.
Given your latest post, I think it's crucial that I finish responding to your earlier post before moving on. Many of the ideas and assertions you put forth in your latest post are also covered in the earlier one.
Minarchist:Let us suppose there is no government court. And let us suppose that society is divided into two groups, A and B. All the members of group A subscribe to and contract with court A, and all the members of group B subscribe to and contract with court B. When two members of group B have a dispute, they take their dispute to court B, and the decision is binding, because they both already agreed in contract to accept court B's rulings. The same with a dispute between members of group A, they are bound to accept the ruling of court A. If members of group A and members of group B have no societal interaction, personal or commercial, and no disputes arise, then there is no problem. Of course, in this case, we also don't have two legal systems operating in a single society; rather, we have two societies each with their own legal system - i.e. if the two groups don't interact at all, then they are not a society, by definition. What's interesting is what happens if members of group A and members of group B do interact, and disputes do arise between Bs and As. How do these disputes get settled? There are three possibilities: 1) court A settles the dispute, 2) court B settles the dispute, 3) court A and B agree to binding arbitration through a third party, let's call it court C. In any of these cases, either the A-person or the B-person in the dispute is going to lose. Remember, what a subscriber to a court is paying for is not just access to the court system, but verdicts in his favor! Let;s suppose person A wins the case, because the third party was favorable to the A-camp. And let's suppose this trend continues for a period of months as new disputes arise; i.e. the A-person keeps winning whenever the dispute goes to third-party arbitration. Well, now the subscribers to court B, who keep losing whenever they have disputes with subscribers to court A, are starting to wonder just what the heck they're getting for their money. Court B starts to lose subscribers, and court A stands to gain them. Over time this leads to a situation where court B is totally worthless when it comes to disputes with subscribers to court A. Court B is only good for settling disputes between its own subscribers. And now what do we have? In effect, we have a government court (court A) which settles most disputes, and a private court (court B) which only does binding arbitration among its own small group of members. The point is that there cannot be two competing courts in the same society (by "society" meaning a group of interacting people). There can be various small courts which settle disputes among their own subscribers, but there must also be a dominant court which settles disputes between subscribers of different private courts. In practice, what my system would likely result in, is a syste, whereby every citizen subscribes to the govenrment court and to some private court of his choosing: perhaps based around ethnic or cultural group with some shared non-libertarian values. Disputes among such "little societies" would be settled by those private courts, but whenever disputes arose between members of different "little societies" they would have to be settled by a third party. As I tried to show above, the emergence of a dominant court is inevitable. By establishing my "government" courts from the start, we are acknowledging that fact, and saying that we don't want to leave the structure of this all-important dominant court to chance: we want to structure it (through a constitution et al) in a way that best protects libertarian principles.
Okay, I'll make some general statements to begin with. First of all, I don't think that people would subscribe to courts. Second, I don't see why you're equating "society" to "subscribers of a single court system". Third, even if court subscription did exist, I certainly don't see why it must mean paying for verdicts in one's own favor along with paying for access. Fourth, I don't see see why there must be one and only one "dominant court" which settles disputes between subscribers of different private courts.
I think that courts will be open for business to hear and settle disputes. No subscription is necessary except on a per-case basis. Things might be more complicated with insurance companies, as they may have internal arbitration procedures for disputes that don't involve outside parties. However, I don't see any sort of "universal non-aggression insurance" arising in a stateless, free-market society. Given the already elaborate division of labor in today's world, I think insurance would tend to become more finely distinguished into a multitude of types. So it's certainly possible (if not probable) that, while two people may use the same insurance company for one kind of coverage, they use different insurance companies for another.
My point is, like you yourself point out, there will be a need for outside arbitration at some point. I think it's unlikely that insurance companies would require their subscribers to only use a specific court system for all disputes, because 1) such a requirement exceeds the scope of the insurance contract, and 2) it wouldn't solve the problem, only make it a bit more distant, since each insurance companies could then require its subscribers to use an entirely separate court system. So I think it's far more likely that court systems will be "for hire" on a case-by-case basis. You see this already today with law firms. While people may frequently retain attorneys for years, they're under no a priori obligation to do so.
With all due respect, I'm baffled by your notion that court subscribers would be paying for verdicts in their own favor. Even allowing for that, however, two issues arise. The first issue is that disputes could certainly arise within a single subscription-based court system. If each person is paying for verdicts in his own favor, this means that the court system would necessarily violate one of its subscribers contracts by rendering a judgement in favor of the other party. Second, if a person is paying only for verdicts in his favor, he'd never submit to impartial resolution (real or alleged) in the first place. What's happened historically is that, when two sides in a dispute agree at all to peaceful resolution, neither side will agree to have the dispute resolved by a third party who he thinks is biased toward the other side. Impartial dispute resolution therefore has a strong tendency to win out - when dispute resolution is not monopolized.
Furthermore, whether a person subscribes to a particular court system and pays for verdicts in his favor is irrelevant in the face of a judgement rendered upon him by a third-party court system. Let's say that a person is accused of wrongdoing. The accuser proposes that court A hear the dispute, but the accused thinks court A would be biased in favor of the accuser. What incentive would the accused have to go with court A anyway? If the burden of proof for the accusation rests with the accuser (i.e. the accused is innocent until proven guilty), then no case equals no crime "in the eyes of the law". If you're thinking that different court systems would rely on vastly different legal methodologies, I think you're gravely mistaken. Instead, I think there would be a single "legal system", but it would be maintained and enforced by multiple, independent, and overlapping agencies, both out of an economic incentive and hopefully also a moral one.
Minarchist:Once we decide what the proper functions and limitations of this "government" ought to be, then the floor is open to discussion of the best way to structure this government (and its constitution) in order to achieve the desired results. Some of the details (e.g. age of consent, length of terms) will always be somewhat arbitrary. We know that 5 is too young for the age of consent, and 30 is too old, but why 18, rather than 17 or 19...there's no good answer to that question. In order for society to function, we must come to a consensus on these conventions, and it so happens that 18 or thereabouts seems to work pretty well and mostly satisfy everyone. The form of the government is just a means to an end, after all, so we can (for once) consider empirical evidence and put on our utilitarian hats.
What do you see this decision process for the proper functions and limitations of the "government" as being? Why must there be an age of consent at all, instead of some other mechanism for determining citizenship (such as a qualifying exam, or an initiation ritual, etc.)? Do you think it will always so happen that "18 or thereabouts seems to work pretty well and mostly satisfy everyone" (which I'm rather skeptical about, actually)? In a nutshell, I'm sorry but this sounds like you're just doing a bunch of hand-waving.
I don't have time just now to respond to your latest post in depth, but I have a few quick comments:
1) It's not important for my argument whether courts fund themselves on subscriptions or user-fees. My argument is not predicated on courts using subscriptions, and actually I'm for the government courts funding themselves purely through user-fees. My claim that natural monopoly is sustainable in the law industry does not rest on the assumption that all (or any) courts will operate on a subscription basis.
2) I in no way meant that people would be contracting for verdicts in their own favor, in the sense that the court would be violating a contract if it ruled against a client. That would indeed be baffling, as you say. I think what you're referring to is my statement that what people are "paying for" is a verdict in their favor, in the sense that a person will tend to patronize that court which they believe gives them the best chance of getting a verdict in their favor, and one which is enforceable. In other words, people patronizing a court don't just want an opportunity to go to court, they want to win: that's what they're really "paying for," but that's not to say that they are literally contracting for a verdict in their favor.
3) In my comment which you quoted, I was working through a scenario involving two sets of subscribers to two courts, and how disputes between the two sets of people could be settled, and how this leads naturally to one court becoming dominant in settling disputes between members of the two sets of people. Now, take subscription out of the scenario altogether; i.e. suppose that these aren't two sets of subscribers to their respective courts, instead these are just two sets of people patronizing two courts both operating on user-fees. Does this change the outcome? I would say it does not, not with respect to the question at hand: namely, whether one or the other court (or a third party, though that possibility is not part of the scenario I outlined) will necessarily become dominant in disputes between members of the two sets of people.
Minarchist:I now realize that my earlier language was misleading, and I apologize; it was unintentional. I never meant to say that an act of violence is objectively a violation of the NAP unless it's been authorized by the government court. What I mean is that a government court views all acts of violence as crimes (violations of the NAP) unless/until the government court authorizes them: i.e. determines that the actor was acting within his right of retribution and makes a ruling to that effect. There is an objective fact of the matter (X-action is or is not in fact a violation of the NAP) which is not contingent on how the government court (or any court or person) views the matter. And then there is the government court (or any third party involved in dispute resolution), which is trying to discover this objective fact of the matter, and to make a ruling on that basis. I hope that makes my position plain.
It does, and it means the viewpoint of your hypothetical government court system is not consistent with the NAP in a legal setting. Certainly the NAP does not view all acts of violence as acts of aggression unless authorized by one particular organization.
Minarchist:Are they? That's the essential question. I've argued that they are not. Sure, no one will coerce them into staying with the government court or punish them for using a rival private court. However, my argument has been that in practice a law-monopolist such as the government court cannot be ousted in the way that monopolies in other industries have historically been ousted: i.e. by a small rival emerging and gradually gaining market share. Why doesn't this work with the law industry? Because legal services (i.e. dispute resolution services) are fundamentally different from all other goods or services. A court with 5% of the population as its clientele cannot successfully compete with a court which services the remaining 95%. In disputes between clients of the 5% court and clients of the 95% court, the latter alone will find its rulings enforceable. Why? Because the third party contractors who are in the business of enforcing rulings cannot enforce two contradictory rulings, they must choose one over the other, and they have every incentive to choose the larger and more reputable court. And this tendency feeds on itself. The contractors choose the dominant court because it's rulings are enforceable, and it's ruling continue be enforceable because the contractors keep choosing to enforce its rulings over those of its rivals whenever a dispute arises between them. Can this cycle be broken and the dominant court be ousted by a rival? Yes, absolutely. If a sufficient proportion of consumers (and/or contractors) more or less simultaneously choose to patronize a rival court. But that kind of event sounds more political than economic. Very rarely do firms suddenly jump from 5% to 50% of market share; it's almost always a gradual process by which a rival ousts a monopolist. My point is that, if this gradualism is impossible because of the inherent nature of the law-industry, then a law-monopolist is quite secure. If all the law-monopolist has to worry about is a sudden "coup" by consumers, who switch to a rival en masse and all at once, well then this is the same risk to the monopolist as posed by an election. If the people can organize (and they would have to organize, consumption patterns don't shift this way without conscious effort) to switch to another court, then they can organize politically to alter whatever personnel or practices of the government court that they find objectionable. This is a kind of natural escape valve for displeasure with the government court. It should be easier to affect it politically than to affect a market coup and make one of the rivals viable.
You've claimed that they can't, but at least as far as I'm concerned, you haven't argued successfully that they can't. If no one will coerce them into staying with the government court system, or punish them for using a rival private court system, then they are perfectly able (in terms of sheer physical ability) to not employ the government court in future disputes.
If there are rivals firms in an industry, then that industry is not monopolized. A monopoly means that there is one and only one firm operating in an industry. Firms with large market shares don't count as monopolies. Hence, your hypothetical government court system is not, in fact, a monopoly. You have to use a different - and, I'd argue, much more ambiguous - definition of "monopoly" in order to make your point.
As far as I can tell, you haven't explained the alleged fundamental difference between legal services and all other goods and services. A court system with only 5% of the population as its clientele is certainly not "top dog", but that doesn't mean it's not operating its business successfully (i.e. profitably). Market competition is not all about a "race to the top". It's about profit and loss. By your reasoning, a court system with only 5% of the population as its clientele shouldn't even exist in the first place - if it can't successfully compete with (this is apparently the same as "become dominant over", in your reasoning) the "dominant" court system, then it can't operate at all. So why does it continue to operate with even 5% of the population as its clientele? I suspect you're outright ignoring profit and loss in favor of a distorted Highlander-esque* view of market competition.
This distorted view seems to be confirmed when you say that "the third party contractors who are in the business of enforcing rulings cannot enforce two contradictory rulings". You seem to be assuming that different court systems will necessarily give contradictory rulings. Why is that? I see no reason at all to make this assumption. Think of research institutes. Do they always contradict each other in their findings? Hardly. And furthermore, they (almost) invariably claim to be upholding the principles of science. So science is a standard, but it's not monopolized by a single scientific organization. I see no reason why the law can't be the same way.
Minarchist: To be clear, I fully appreciate and agree with the Austrian position on natural monopolies. Just this morning I was listening to Rothbard's lecture at NY Polytechnic where he effectively demolishes the myth of natural cartels/monopolies in American history. I get this. My position is simply that there is an inherent feature of law which makes it an exception to the rule. To put it roughly, one might say that what makes dispute resolution services unique (and capable of sustaining a natural monopoly) is the fact that one person's having his legal services can and does affect the quality of another person's legal services. As I said earlier, there's no problem whatsoever with 5% of the population owning Fords and the rest owning GM, with Ford competing against GM in price and quality, but it is inconceivable that 5% could patronize one court and 95% patronize another, and that the 5% court could compete at all with the 95% court: i.e. because for the 95% court to provide its clients with the services they demand, the 5% court must be unsuccessful in providing its clients with the services they demand, and vice versa. It's kind of a zero-sum game: not in financial terms, but in the sense that in disputes, someone always wins and someone always loses. Whereas, re cars, buyers of Fords getting their Fords in no way conflicts with buyers of GMs getting their GMs. They can both be satisfied; it's not a zero-sum game. This is a fundamental distinction between law and all other industries, and it means that the market dynamics for the law industry will be unique.
I think there is a case where one person's legal services essentially don't affect another person's legal services, and that's when the legal services rendered are as impartial as possible. Furthermore, I'll again point out that here you seem to be assuming that the 5% court system would necessarily make rulings that are different from the 95% court system. That simply does not follow logically from anything else you've stated, hence it can only operate as a premise, and in that case I categorically reject it.
If people demand verdicts in their favor all the time, then justice is only an accident - if it happens at all. However, I don't think that people demand that as much as they demand things like fair trials and impartial judiciaries.
* From the movie: "There can be only one!"
No, that's not my position. The NAP does not "view" anything; the NAP is not a person with a perspective. A person must interpret each act and determine whether or not it is a violation of the NAP. This is what the government court or any court does. For the government court to "authorize" an act of violence simply means for it to determine that it is not a violation of the NAP. For example, if Bob killed John but claims to have had a right of retribution, then the government court will attempt to determine the truth of the matter, and if it finds that Bob did have a right of retribution, then the government court "authorizes" the act of violence, it rules in Bob's favor. That's all.
So, again, I'm not saying that the government court is above the NAP; it merely applies the NAP to each particular case.
You've claimed that they can't, but at least as far as I'm concerned, you haven't argued successfully that they can't. If no one will coerce them into staying with the government court system, or punish them for using a rival private court system, then they are perfectly able (in terms of sheer physical ability) to not employ the government court in future disputes. If there are rivals firms in an industry, then that industry is not monopolized. A monopoly means that there is one and only one firm operating in an industry. Firms with large market shares don't count as monopolies. Hence, your hypothetical government court system is not, in fact, a monopoly. You have to use a different - and, I'd argue, much more ambiguous - definition of "monopoly" in order to make your point. As far as I can tell, you haven't explained the alleged fundamental difference between legal services and all other goods and services. A court system with only 5% of the population as its clientele is certainly not "top dog", but that doesn't mean it's not operating its business successfully (i.e. profitably). Market competition is not all about a "race to the top". It's about profit and loss. By your reasoning, a court system with only 5% of the population as its clientele shouldn't even exist in the first place - if it can't successfully compete with (this is apparently the same as "become dominant over", in your reasoning) the "dominant" court system, then it can't operate at all. So why does it continue to operate with even 5% of the population as its clientele? I suspect you're outright ignoring profit and loss in favor of a distorted Highlander-esque* view of market competition. This distorted view seems to be confirmed when you say that "the third party contractors who are in the business of enforcing rulings cannot enforce two contradictory rulings". You seem to be assuming that different court systems will necessarily give contradictory rulings. Why is that? I see no reason at all to make this assumption. Think of research institutes. Do they always contradict each other in their findings? Hardly. And furthermore, they (almost) invariably claim to be upholding the principles of science. So science is a standard, but it's not monopolized by a single scientific organization. I see no reason why the law can't be the same way.
In a dispute between Bob and Susan in court A, Susan wins. Bob can accept the unfavorable verdict, or he can try to appeal in court B.
If Bob appeals in court B, either he wins or he loses. Sometimes people in Bob's position will win.
If Bob does win, then we have a situation where court A has ruled in favor of Susan and court B in favor of Bob.
At this point, how is the dispute to be resolved? There are numerous possibilities, let's consider a few of them:
Let's suppose #1 happens. What this means is that, for whatever reason, the contractors in the business of enforcing rulings have decided the following: whenever there is a disagreement between court A and court B, we will enforce the ruling of court A, and not the ruling of court B. If #2 happens, it means the same thing, except in the inverse: contractors have decided to enforce rulings of court B, and not court A, whenever there is disagreement between the two. Now, you might be wondering, why does it have to be one way or the other? Can't some contractors enforce rulings of A and other of B. Sure, until court A and court B disagree. When that happens, there are two options: either 1) all the contractors concerned (all of them operating in this region, let's say) can choose to the enforce one courts ruling over the other, or 2) some try to enforce one ruling and the rest try to enforce the other, and the different contractors end up fighting each other. As anarcho-capitalists rightly point out, any firms in the security industry is going to try to avoid fighting with other firms whenever possible: violence is expensive. The contractors therefore have an incentive not to fight one another, and to avoid that, they have to agree to support one court over the other whenever a disagreement arises between the two courts. How they manage to do this is beside the point: e.g. by implicit understanding or by contract.
Now, if when court A and court B disagree the contractors only enforce the ruling of court A, and not that of court B, what does this tell consumers? It tells them that they would be better off filing their suits in court A, rather than court B. If I'm thinking about filing some suit, I'm going to choose to patronize court A because I know that, if the person I'm filing suit against loses in court A and then goes and wins an appeal at court B, I'm still going to win the case because the contractors will enforce court A's verdict in my favor but not court B's verdict in favor of the person I'm suing. This gives court A great advantage, it has become dominant. Court B is effectively useless because it's rulings, whenever they disagree with court A's, are unenforceable. Even if the two courts actually disagree very infrequently, a would-be plaintiff thinking about which court to patronize doesn't know whether in his case there will be a disagreement or not. If he's rational, he's going to think "why take the chance?" and just go with court A, where he doesn't have to worry about it. Once court A achieves this dominant position, how can court B compete? It lacks the ability to provide the service which consumers demand, and there's nothing it can do itself to improve the quality of its service, because the fact that it's service is lacking has nothing to do with how court B is managed, how economically efficient it is, or anything else within its control - court B's service is lacking, is useless, because court A already is in a position where it's rulings are enforceable over court B's whenever dispute arise. The very that court A is dominant virtually ensures that it will remain dominant.
Now suppose #3 happens, Bob and Susan send their dispute to court C. Firstly, you have to appreciate why Bob or Susan would agree to this. After all, each of them already has a verdict in their favor from a court, so why risk losing in court C? The only reason they would do this is that neither of them could get the rulings from their respective courts enforced, because the contractors wouldn't enforce them, because the contractors have an arrangement whereby, in any dispute between court A and court B, they will only enforce a ruling made by court C to settle the matter. So then, here we are again with a dominant court, court C. Court A and B have lost their purpose if they can't get their rulings enforced; they can't compete with court C, which becomes the de facto monopolist.
The point is that there will be a dominant court, it's inevitable.
Enough with that scenario. On a related note, you asked how a court servicing 5% of the population could compete at all with the 95% court? My position is that it can't, strictly speaking. That is, if there's a dominant court then by definition its rulings will be the ones that are enforced whenever there is a disagreement between it and some minor court. The minor court serves no purpose: unless it operates on a subscription basis such that its subscribers agree contractually to binding arbitration by this minor court. What this means is that the minor court could effectively resolve disputes among its own subscribers. This is how, as I said before, "little societies" serviced by minor courts could exist alongside the government court, but not compete with it. If they tried to compete with the dominant court, contractors would enforce the ruling of the dominant court and not theirs, whenever the two disagreed, and that would be end of their successful competition. But, yes, other courts can exist provided they don't compete with the government court in this sense, which means that they are limited to settling disputes between their own subscribers who have contractually bound themselves to accept their rulings. Of course, this is essentially what happens now in the U.S. with binding arbitration (for civil matters anyway), which exists happily alongside the State courts; it works because the State courts would (if one of the parties to the binding arbitration ever filed suit in a State court) uphold the decision of the arbitrator simply because the State court recognizes the validity of the contract by which both parties vowed to accept that decision.
Finally, as I've been implying throughout this post, I am not assuming that the two courts will always disagree, nor even that they'll mostly disagree. They can disagree 1% of the time and my argument still holds. It holds because (as I said above) the would-be plaintiff "shopping around' for a court to patronize doesn't know (can't know) whether or not there will be such a disagreement in his case, and so (ceteris peribus) he chooses the court whose verdict will stand up just in case there's a disagreement between it and another court to which the person he's suing might appeal.
Minarchist:No, that's not my position. The NAP does not "view" anything; the NAP is not a person with a perspective. A person must interpret each act and determine whether or not it is a violation of the NAP. This is what the government court or any court does. For the government court to "authorize" an act of violence simply means for it to determine that it is not a violation of the NAP. For example, if Bob killed John but claims to have had a right of retribution, then the government court will attempt to determine the truth of the matter, and if it finds that Bob did have a right of retribution, then the government court "authorizes" the act of violence, it rules in Bob's favor. That's all. So, again, I'm not saying that the government court is above the NAP; it merely applies the NAP to each particular case.
I agree, of course, that the NAP doesn't itself determine what constitutes aggression. But note that this also means that the NAP doesn't say that all acts of violence constitute aggression unless previously authorized by a particular organization. Furthermore, not determining whether something violates the NAP is not the same as determining that it does violate the NAP. You seem to be arguing otherwise for your hypothetical government court system, which means you seem to be arguing a false dilemma.
If a government court hasn't determined whether a particular violent act is aggression (and thus a violation of the NAP), it cannot logically claim at the same time that it is aggression. So either you revise the position of your hypothetical government court system in this regard, or you admit that its position here is not logical.
Minarchist:In a dispute between Bob and Susan in court A, Susan wins. Bob can accept the unfavorable verdict, or he can try to appeal in court B. [...]
If Bob is contractually bound to accept the unfavorable verdict, then he can't legally appeal it in any court. Honestly, I don't see why any self-respecting court wouldn't require litigants to contractually bind themselves to its verdict. Without that, how could there be any grounds for enforcing the verdict?
What Bob could do is bring a new legal action against court A. So in this case, court A would be the defendant, not Susan. If a verdict is then rendered against court A, then of course the verdict it rendered against Bob is overturned. However, that doesn't necessarily mean that a new verdict is thus rendered against Susan. I think it's much more likely that the trial between Bob and Susan would be declared a mistrial, and a retrial or trial de novo would then occur.
I see no reason for enforcement contractors to blindly side with one court over others. However, I think that the process I described above, where courts themselves can be held accountable for the rulings they make, would effectively nullify this possibility.
Also, I see no reason why a verdict must be wholly in favor of one side or the other. Many cases could result in compromise verdicts, which is more along the lines of arbitration than criminal proceedings.
Furthermore, I think legal standards would be codified. This wouldn't be legislation in the modern sense, but it would fit the original sense of legislation as "carrying the law". Legal codes would be based on precedents established by court cases, just as in ancient common-law legal systems. As new cases arise, the legal codes may be modified accordingly.
Finally, I think impartial courts emerge naturally out of the competition for favorable verdicts. A won't agree to employ a court that he thinks is biased in favor of B, and B won't agree to employ a court that he thinks is biased in favor of A. The difference is "split down the middle", leading to both agreeing to use a court that both see as unbiased.
I agree, of course, that the NAP doesn't itself determine what constitutes aggression. But note that this also means that the NAP doesn't say that all acts of violence constitute aggression unless previously authorized by a particular organization. Furthermore, not determining whether something violates the NAP is not the same as determining that it does violate the NAP. You seem to be arguing otherwise for your hypothetical government court system, which means you seem to be arguing a false dilemma. If a government court hasn't determined whether a particular violent act is aggression (and thus a violation of the NAP), it cannot logically claim at the same time that it is aggression. So either you revise the position of your hypothetical government court system in this regard, or you admit that its position here is not logical.
The court is presented with a case. It tries to decide whether or not the act in question is a violation of the NAP. If it finds that it is, then it finds the defendant guilty of that crime. If not, then not. What is the problem? I think you're mixing up the question of whether the act is a violation of the NAP with the question of whether the court views it as such. I have said that the court views any act of violence as a violation of the NAP until proven otherwise to the court by the defendant (i.e. the burden of proof for this positive defense is on the defendant). I did NOT say that any act of violence is a violation of the NAP until the court decides it's not: as if whether or not an act violated the NAP depended on the court's ruling, rather than being an objective fact.
There is nothing needing revising in the "position of the hypothetical court system." It is perfectly in accord with the NAP.
Why would any defendant sign such a contract? If you file suit against me in some court, and I'm asked whether I'll contractually agree to accept the verdict in the event it's against me, of course I won't. If you mean that Bob has already contracted with the court prior to this suit arising, well then we have the situation I've described re the minor courts and "little societies" existing alongside (but not competing with) the dominant court. That is, if both parties to the dispute are bound contractually to the same court, then the ruling will be enforced without any further appeals. No problem. But if everyone is contracted with the same court, then we have a de facto monopoly as I'm advocating; and if everyone is not contracted with the same court, some are contracted to different courts and others aren't contracted at all, then there will arise from time to time situations where the two disputants are not contracted with the same court (as with the Bob and Susan scenario).
If a mistrial or some other failure occurs, that just begs the question. The bottom line is that whenever a case is resolved successfully (i.e. a verdict is reached and enforced), someone will lose and someone will win. Out of court settlements where there are compromises and "everyone wins" are a separate matter, and with any luck most disputes would be settled that way. Some will not be, generally the more serious ones. But in any case no settlements will occur in the absence of the threat/risk of a trial and an enforceable verdict. An accused person does not agree to a minor punishment except when the alternative is risking a major punishment handed down in court.
There's nothing "blind" about it. It's rational self-interest for the contractors not to choose separate sides and then find themselves fighting one another. Presumably, the contractors will tend to side with whichever court they feel acted justly, all else being equal, but the relevant fact is that they will side for one over the other, because they want to avoid fighting one another.
See my comment above re out of court settlements.
If your point is that the process of normalizing/codifying laws would eliminate all disagreements between courts, that's simply not true. In the absence of a legislating State, there's no reason to think that different courts will always agree on matters of law (the fact that common law evolves is proof of this), but more importantly, there will always in any circumstances be disagreements over questions of fact: all law aside. Courts of original jurisdiction and appellate courts do occasionally disagree: otherwise, what would be the point of appeals? As I've said, my argument does not rest on the assumption that disagreements between courts will be common. All that matters is that a plaintiff shopping around for courts does not know whether the favorable verdict he hopes for will stand up to an appeal or not, and so he opts for the court whose verdict is most likely to stand up to an appeal.
I don't necessarily disagree. I'm not arguing that a polycentric legal order is "bad" in the sense that it will yield bad (biased, non-libertarian, etc) courts. I'm saying that it is unsustainable; i.e. a polycentric system will move inevitably toward monocentrism and a de facto monopolist. Whether that monopolist is "good" or "bad" is beside the point.
Minarchist:The court is presented with a case. It tries to decide whether or not the act in question is a violation of the NAP. If it finds that it is, then it finds the defendant guilty of that crime. If not, then not. What is the problem? I think you're mixing up the question of whether the act is a violation of the NAP with the question of whether the court views it as such. I have said that the court views any act of violence as a violation of the NAP until proven otherwise to the court by the defendant (i.e. the burden of proof for this positive defense is on the defendant). I did NOT say that any act of violence is a violation of the NAP until the court decides it's not: as if whether or not an act violated the NAP depended on the court's ruling, rather than being an objective fact. There is nothing needing revising in the "position of the hypothetical court system." It is perfectly in accord with the NAP.
If the government court system hasn't determined whether a violent act constitutes aggression (and thus a violation of the NAP), how can it view it as nevertheless constituting aggression - unless it's simply making an assumption? Furthermore, what's the point of rendering legal judgements about affairs that haven't been presented to it?
To be honest, I've been assuming this whole time that, when you say the court views something as a crime, that means it's necessarily making a legal pronouncement to that effect. If that's not what you mean, then please clarify.
Minarchist:Why would any defendant sign such a contract? If you file suit against me in some court, and I'm asked whether I'll contractually agree to accept the verdict in the event it's against me, of course I won't.
Then either there won't be any trial, and martial contest will ensue; or you'll be tried in absentia and in all likelihood found guilty. Either way, I think it's likely that any insurance coverage you have at that point will be dropped, since you refused to respond to a request to address an accusation. In fact, I think it's possible that refusing to respond to such a request will effectively render you an outlaw, as "the thing speaks for itself". You're refusing to abide by a legal standard that is considered to be perfectly reasonable.
Minarchist:If you mean that Bob has already contracted with the court prior to this suit arising, well then we have the situation I've described re the minor courts and "little societies" existing alongside (but not competing with) the dominant court. That is, if both parties to the dispute are bound contractually to the same court, then the ruling will be enforced without any further appeals. No problem. But if everyone is contracted with the same court, then we have a de facto monopoly as I'm advocating; and if everyone is not contracted with the same court, some are contracted to different courts and others aren't contracted at all, then there will arise from time to time situations where the two disputants are not contracted with the same court (as with the Bob and Susan scenario).
Of course I don't mean that. I don't see court systems as taking subscribers. Insurance companies, yes, but not court systems. Court-system subscriptions are absurd because in no way do they mitigate the possibility of disputes arising between subscribers to different court systems. And when everyone is subscribed to the same court system, the subscription is superflous.
Minarchist:If a mistrial or some other failure occurs, that just begs the question. The bottom line is that whenever a case is resolved successfully (i.e. a verdict is reached and enforced), someone will lose and someone will win. Out of court settlements where there are compromises and "everyone wins" are a separate matter, and with any luck most disputes would be settled that way. Some will not be, generally the more serious ones. But in any case no settlements will occur in the absence of the threat/risk of a trial and an enforceable verdict. An accused person does not agree to a minor punishment except when the alternative is risking a major punishment handed down in court.
Please do explain how it begs the question, because I don't see it.
Why do settlements have to be out of court? Just because that's not the way it works in modern American jurisprudence doesn't mean it can't work that way at all.
Minarchist:There's nothing "blind" about it.
Sure there is. Upholding a single court system over all others, regardless of the verdicts it renders, isn't blind?
Minarchist:It's rational self-interest for the contractors not to choose separate sides and then find themselves fighting one another. Presumably, the contractors will tend to side with whichever court they feel acted justly, all else being equal, but the relevant fact is that they will side for one over the other, because they want to avoid fighting one another.
And who's to say that the contractors will always consider one court system in particular to have acted the most justly?
Minarchist:If your point is that the process of normalizing/codifying laws would eliminate all disagreements between courts, that's simply not true.
Of course I didn't say that it would eliminate all disagreements between courts. But I do think that setting a common standard would reduce their occurrence.
Minarchist:In the absence of a legislating State, there's no reason to think that different courts will always agree on matters of law (the fact that common law evolves is proof of this), but more importantly, there will always in any circumstances be disagreements over questions of fact: all law aside.
Do you consider the US to be under a common-law legal system? Seriously?
That aside, I challenge you to prove your claim that "there will always in any circumstances be disagreements over questions of fact". That claim sounds to me like an argument from ignorance, as you're essentially claiming certainty about the future inspite of not knowing it.
Minarchist:Courts of original jurisdiction and appellate courts do occasionally disagree: otherwise, what would be the point of appeals?
Why are you injecting such notions into this discussion, as if they're inherent to it? They aren't.
Minarchist:As I've said, my argument does not rest on the assumption that disagreements between courts will be common. All that matters is that a plaintiff shopping around for courts does not know whether the favorable verdict he hopes for will stand up to an appeal or not, and so he opts for the court whose verdict is most likely to stand up to an appeal.
There are two parties to every legal action: the plaintiff and the defendant. I see no reason to drop the latter out of all consideration, as you're clearly doing. FYI, I consider that to be intellectually dishonest.
Minarchist:I don't necessarily disagree. I'm not arguing that a polycentric legal order is "bad" in the sense that it will yield bad (biased, non-libertarian, etc) courts. I'm saying that it is unsustainable; i.e. a polycentric system will move inevitably toward monocentrism and a de facto monopolist. Whether that monopolist is "good" or "bad" is beside the point.
Trust me, I understand what you're saying, and as far as I'm concerned, you have not yet proven your case one bit.
If the government court system hasn't determined whether a violent act constitutes aggression (and thus a violation of the NAP), how can it view it as nevertheless constituting aggression - unless it's simply making an assumption? Furthermore, what's the point of rendering legal judgements about affairs that haven't been presented to it? To be honest, I've been assuming this whole time that, when you say the court views something as a crime, that means it's necessarily making a legal pronouncement to that effect. If that's not what you mean, then please clarify.
Does the court view every person as innocent until proven guilty? Yes. Does that mean that the court rules that everyone is innocent before the trial concludes? No.
Does the court view every act of violence as a violation of the NAP until proven otherwise? Yes. Does that mean that the court rules that such acts are violations of the NAP before the trial concludes? No.
Susan files suit against Bob in court. The court finds that Bob did commit the violent act which he is accused of committing. As this point, if the trial were to end for some reason, if Bob had nothing more to say, then the court would rule that Bob's action was a violation of the NAP. as I've said innumerable times, the court views any act of violence as a violation of the NAP unless proven otherwise. But if Bob argues that his act of violence was not a violation of the NAP, because it was just retribution, and the court agrees, then the court will rule that Bob's action was not a violation of the NAP, i.e. finding him not guilty.
If you still find this objectionable, and see it as violating the NAP, please identify precisely who's rights are being violated and by whom, because I must be missing something, I don't see any problems.
As for the rest of your comments:
1) You mentioned that if both parties were contractually bound to the court then appeal is not an issue (and thus the Bob-Susan scenario I outlined does not come into play). I answered that no defendant would ever contract after being accused. You did not answer. Instead you said that subscription to courts would never happen. Alright, so if there are no preexisting contracts with the court, and no defendant has any incentive to sign a contract after having been accessed, why did you mention the possibility that both parties could be bound to accept the verdict? How would that occur?
2) You asked me to prove my claim that there will always be disagreements about questions of fact. I assume that's not a serious request, if it were it would mean that you believe that all courts dealing with the same case will always reach the same conclusion about the facts, which is absurd. Once again, I repeat, I am not claiming that disagreement will be common. I am claiming that it will occur sometimes. In this same post you acknowledge this fact, so I don't know what we're arguing about here.
3) You ask why I ignore the defendant in talking about which courts consumers will favor. Because (at the original court) the plaintiff is the one filing suit and choosing the court, not the defendant. If the defendant appeals at another court, well then he chooses the appellate court. But what's the difference? The point is that whoever is bringing the case before the court chooses which court, and that person always has the same incentive: to choose the court which is most likely to get him what he wants (an enforceable verdict in his favor). The key word is "enforceable." Every customer bringing a case to every court wants the court's rulings to be enforceable (i.e. in the event they win the case, the hope for which is why they are there in the first place).
4) Re the mistrial. What's your point? Ok, so a mistrial occurs, and no one wins or loses. And? My claim was that someone always wins and loses, so you think the possibility of mistrial rebuts this claim? So I'm wrong provided that every trial is a mistrial. Ok, granted, and in that case there is no legal system at all. But, assuming that most cases (or any) do get settled, then someone wins and someone loses. I've already addressed out of court settlements, the viability of which depends entirely on what's going on in court. As for in-court settlements, so what? In some cases the judge will rule in a way that pleases both sufficiently for neither of them to file appeals? That's your idea, right? Well, will that happen all of the time? If not, then my point stands (someone wins, someone loses - sometimes anyway, and that leads to the Bob-Susan scenario with all of its implications). If so, that's simply wrong, and really defeats the purpose of third party binding arbitration (or courts), which is that someone will be forced to suffer something against their will.
5) I never said anything about the U.S. being a common-law system. I said that common-law or State-made law, there will sometimes be disagreements over questions of fact and/or law. That's self-evidently true, and you've agreed, so again, what's the problem?
6) What is the motive of the contractor? If it's to make money, then the decision to avoid conflict with other contractors by joining all of them in siding with a single court on any particular occasion is perfectly rational. I said that the choice would tend to be for the just ruling ALL ELSE BEING EQUAL. But that's really beside the point. The choice might be to opt for the just court, the unjust court, the red court, the small court, the big court, any court at all, it makes no difference. The relevant point is that the contractors will side with THE SAME court, in order to avoid fighting amongst themselves. Presumably, the largest of the contractors would choose based on some criterion (justice, kick-backs, whatever) and the smaller ones would follow to avoid conflict.
7) Re my comment about courts of original and appellate jurisdiction, no they're not foreign concepts outside the scope of this debate. All I mean is the court which first hears a case, and the court to which a defeated defendant appeals. That's it.
Minarchist:Does the court view every person as innocent until proven guilty? Yes. Does that mean that the court rules that everyone is innocent before the trial concludes? No.
How can a court make a ruling before the trial concludes? A ruling made by a court is by definition the conclusion of the trial.
Minarchist:Does the court view every act of violence as a violation of the NAP until proven otherwise? Yes. Does that mean that the court rules that such acts are violations of the NAP before the trial concludes? No.
See above. And again, why is the court making rulings about cases that aren't presented to it? You haven't answered that question.
Minarchist:Susan files suit against Bob in court. The court finds that Bob did commit the violent act which he is accused of committing. As this point, if the trial were to end for some reason, if Bob had nothing more to say, then the court would rule that Bob's action was a violation of the NAP. as I've said innumerable times, the court views any act of violence as a violation of the NAP unless proven otherwise. But if Bob argues that his act of violence was not a violation of the NAP, because it was just retribution, and the court agrees, then the court will rule that Bob's action was not a violation of the NAP, i.e. finding him not guilty. If you still find this objectionable, and see it as violating the NAP, please identify precisely who's rights are being violated and by whom, because I must be missing something, I don't see any problems.
I think the potential exists for your hypothetical government court system to violate the rights of those who have engaged in violence that does not violate the NAP, but was nevertheless not authorized by your hypothetical government court system.
Minarchist:As for the rest of your comments: 1) You mentioned that if both parties were contractually bound to the court then appeal is not an issue (and thus the Bob-Susan scenario I outlined does not come into play). I answered that no defendant would ever contract after being accused. You did not answer. Instead you said that subscription to courts would never happen. Alright, so if there are no preexisting contracts with the court, and no defendant has any incentive to sign a contract after having been accessed, why did you mention the possibility that both parties could be bound to accept the verdict? How would that occur?
I certainly did answer. Read my post again - you might've skipped that part of it.
Minarchist:2) You asked me to prove my claim that there will always be disagreements about questions of fact. I assume that's not a serious request, if it were it would mean that you believe that all courts dealing with the same case will always reach the same conclusion about the facts, which is absurd. Once again, I repeat, I am not claiming that disagreement will be common. I am claiming that it will occur sometimes. In this same post you acknowledge this fact, so I don't know what we're arguing about here.
It certainly was a serious request, but I don't believe that all courts dealing with the same case will always reach the same conclusion about the facts. You're again arguing from a false dilemma. If one doesn't believe that something will always happen, that in no way means he must believe that it will never happen.
Minarchist:3) You ask why I ignore the defendant in talking about which courts consumers will favor. Because (at the original court) the plaintiff is the one filing suit and choosing the court, not the defendant. If the defendant appeals at another court, well then he chooses the appellate court. But what's the difference? The point is that whoever is bringing the case before the court chooses which court, and that person always has the same incentive: to choose the court which is most likely to get him what he wants (an enforceable verdict in his favor).
My point is that I disagree with your depiction of the legal process in a libertarian society. I don't see the plaintiff as holding a de facto (if not also de jure!) monopoly over which court to use.
Minarchist:4) Re the mistrial. What's your point? Ok, so a mistrial occurs, and no one wins or loses. And? My claim was that someone always wins and loses, so you think the possibility of mistrial rebuts this claim? So I'm wrong provided that every trial is a mistrial. Ok, granted, and in that case there is no legal system at all. But, assuming that most cases (or any) do get settled, then someone wins and someone loses. I've already addressed out of court settlements, the viability of which depends entirely on what's going on in court. As for in-court settlements, so what? In some cases the judge will rule in a way that pleases both sufficiently for neither of them to file appeals? That's your idea, right? Well, will that happen all of the time? If not, then my point stands (someone wins, someone loses - sometimes anyway, and that leads to the Bob-Susan scenario with all of its implications). If so, that's simply wrong, and really defeats the purpose of third party binding arbitration (or courts), which is that someone will be forced to suffer something against their will.
Declaring a mistrial would nullify the original trial, and require a new trial to be held over the original dispute. I was again disagreeing with your depiction of the legal process in a libertarian society, and I offered an alternative depiction. An important part of my alternative depiction, which you seem to have missed or deliberately ignored, was that the "appeal" would not be against Susan, but against court A.
Minarchist:5) I never said anything about the U.S. being a common-law system. I said that common-law or State-made law, there will sometimes be disagreements over questions of fact and/or law. That's self-evidently true and Id on';t think it's worthwhile to even attempt to "prove" that point, because the alternate (all courts agree all the time) is nonsense. Of course, you actually have admitted that disagreement will still occur, so it's unclear what it is we're arguing about. I say disagreement will occur, you agree. So...what's the issue?
You referred to "the fact that common law evolves". That's a present-tense verb form, which implies that you think common law still exists somewhere. I'm admittedly assuming that you're an American, thus it stands to reason that you think common law still exists in the US, not just anywhere. So that's what I was questioning, not the potential for disagreements over questions of fact and/or law.
Minarchist:6) What is the motive of the contractor? If it's to make money, then the decision to avoid conflict with other contractors by joining all of them in siding with a single court on any particular occasion is perfectly rational. I said that the choice would tend to be for the just ruling ALL ELSE BEING EQUAL. But that's really beside the point. The choice might be to opt for the just court, the unjust court, the red court, the small court, the big court, any court at all, it makes no difference. The relevant point is that the contractors will side with THE SAME court, in order to avoid fighting amongst themselves. Presumably, the largest of the contractors would choose based on some criterion (justice, kick-backs, whatever) and the smaller ones would follow to avoid conflict.
Why would they necessarily avoid fighting among themselves to the exclusion of any/all other consideration(s)? Do you think it's possible for the smaller contractors to collectively out-number and out-gun the largest contractor?
I also fail to see why they must side with the same court system on every occasion (hence blindly siding with that court system over all others), not just on any particular occasion.
Minarchist:7) Re my comment about courts of original and appellate jurisdiction, no they're not foreign concepts outside the scope of this debate. All I mean is the court which first hears a case, and the court to which a defeated defendant appeals. That's it.
Thanks for clarifying, although I'm still wary of using such statism-loaded terms in this debate.
Welcome to the Mises forum.
I don't know how you can have a monocentric anything and be (let alone remain) "Stateless" since it implies a central authority that asserts dominance over the entire region. And over what area would its monocentric jurisdiction cover - a state, several states, an entire country?
If an Anarcho-capitalist society were achieved, it seems it would need to first devolve into minarchism before getting to the point of being a full-blown State. Like cancer, the State's tendency is always to grow, and a society that sheds the State only to implement a centralized legal authority is giving itself a small cancer at the outset.
Before doing anything else, let's get this settled.
The words I speak mean exactly what I tell you they mean. You cannot rationally tell me that what I'm saying means something other than what I say it means. That's the nature of communication. Now, look at what I've said about the government court system. I answered your claims that it violates the NAP in a dozen different ways, and you keep making the same claim. I understand what the NAP is, I understand what you're claim is, I have explained exactly why your claim is false. I have explained that the government court DOES NOT....
D.
O.
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S.
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...convict anyone of a crime unless 1) they have determined that this person committed the act of violence in question, and 2) that said act was not just retribution.
Now, those words mean what I say they mean. You do not get to claim that I mean something other than what I have said, and then argue against that position which I don't hold. That's called a strawman. So, are we clear on this? Is anything unclear? In what way does a court violate the NAP if it's only task is to convict accused people when they are found to be in violation of the NAP?
Minarchist:Before doing anything else, let's get this settled. The words I speak mean exactly what I tell you they mean.
The words I speak mean exactly what I tell you they mean.
All well and good, except I'm not always sure what you're telling me they mean. After all, I'm not a mind-reader.
Minarchist:You cannot rationally tell me that what I'm saying means something other than what I say it means. That's the nature of communication.
See above. Communication isn't mind-reading.
Minarchist:Now, look at what I've said about the government court system.
I already have, thanks.
Minarchist:I answered your claims that it violates the NAP in a dozen different ways, and you keep making the same claim. I understand what the NAP is, I understand what you're claim is, I have explained exactly why your claim is false.
Apparently not to my satisfaction, which is why I keep bringing it up.
Minarchist:I have explained that the government court DOES NOT.... [Snipped attempt at intimidation. I suggest not doing this again, but it's up to you.] ...convict anyone of a crime unless 1) they have determined that this person committed the act of violence in question, and 2) that said act was not just retribution.
[Snipped attempt at intimidation. I suggest not doing this again, but it's up to you.]
Then logically speaking, it will not view - legally speaking - any case that isn't brought before it as anything at all. Right?
However, I'm being generous here, as your above depiction entirely leaves out the notion of the government court system only judging cases that are brought before it. I'm assuming that you're still implying that notion, just not stating it explicitly.
Minarchist:Now, those words mean what I say they mean. You do not get to claim that I mean something other than what I have said, and then argue against that position which I don't hold. That's called a strawman. So, are we clear on this? Is anything unclear? In what way does a court violate the NAP if it's only task is to convict accused people when they are found to be in violation of the NAP?
My point is that this contradicts your earlier statement about the government court system viewing - again, in a legal sense - any act of violence that hasn't already been authorized by it as a crime. Note that this "any" wasn't qualified by you. Therefore it includes cases that aren't brought before the government court system at all. Do you see my point yet? This amounts to the government court system ruling on cases that aren't brought before it (and therefore that it doesn't have any authority to rule on).
What? When I say the court views "any act of violence" in such and such a way, I'm obviously talking about how the court views any act of violence that is in question in some case before the court. What does your misinterpetation of what I've said even mean? How does a court rule on matters that aren't before it? Why on earth would you think that's what I was saying? Anyway, it's not. Are we now clear?
EDIT: and I might add, in the very first post where I described the government court system in question, I explicity stated that the government courts are passive, in that they only hear cases brought before them. In the absence of a public prosecutor and public police, what else could they do? I'm baffled by your latest post...
Minarchist:What? When I say the court views "any act of violence" in such and such a way, I'm obviously talking about how the court views any act of violence that is in question in some case before the court. What does your misinterpetation of what I've said even mean? How does a court rule on matters that aren't before it? Why on earth would you think that's what I was saying? Anyway, it's not. Are we now clear?
Maybe now you understand my confusion. I was reacting much the same way as you're reacting here. Again, your statement was that the government court system would view (again, presumably in a legal sense) any act of violence that it had not already authorized as a crime. That statement wasn't qualified to only concern cases that were brought before it. Honestly, I wouldn't expect anyone else to infer that qualification from the context.
So you're now saying that the government court system would only view acts of violence that it had not already authorized to be crimes in cases that are brought before it. Okay, but now there's an issue with the government court system making rulings before it makes rulings. That also sounds nonsensical, as I think you'll agree. Maybe you mean the government court system, in cases brought before it, would assume that a violent act is a crime until sufficiently proven otherwise (i.e. in an affirmative defense)?
If so, my concern then would be about the government court system requiring affirmative defenses in cases of violence brought before it. This destroys the notion of "innocent until proven guilty". It means the government court system would assume the defendant did, in fact, commit the act of violence that the plaintiff claims he committed. As a result, the facts of the case are made irrelevant and the only thing that matters is whether the defendant can come up with a good enough excuse. However, the common-law notion of affirmative defense requires the defendant to actually affirm at least part of the plaintiff's claim, which implies that he's free to not do so.
Minarchist:EDIT: and I might add, in the very first post where I described the government court system in question, I explicity stated that the government courts are passive, in that they only hear cases brought before them. In the absence of a public prosecutor and public police, what else could they do? I'm baffled by your latest post...
Yes, I know you said that the government court system would be passive and only hear cases brought before it. That's why I was baffled when you went on to say that it would view any acts of violence not already authorized by it as crimes. "Viewing [something] as a crime" is to render a legal opinion, is it not?
Maybe now you understand my confusion. I was reacting much the same way as you're reacting here. Again, your statement was that the government court system would view (again, presumably in a legal sense) any act of violence that it had not already authorized as a crime. That statement wasn't qualified to only concern cases that were brought before it. Honestly, I wouldn't expect anyone else to infer that qualification from the context. So you're now saying that the government court system would only view acts of violence that it had not already authorized to be crimes in cases that are brought before it. Okay, but now there's an issue with the government court system making rulings before it makes rulings. That also sounds nonsensical, as I think you'll agree. Maybe you mean the government court system, in cases brought before it, would assume that a violent act is a crime until sufficiently proven otherwise (i.e. in an affirmative defense)?
As I said previously:
The question is now: how does the court determine whether or not the defendant in question had a legitimate right to commit his act of violence? This is a question about determining the facts of the case, and the burden of proof is on the defendant: it's like an affirmative defense. Per the scenarios above, this means that John Jr must prove that Bob killed John, thus granting him (John Jr) the right of retribution against Bob in the first place. The burden of proof is on the defendant to prove that the violation of the NAP, which he is claiming justifies his own act of violence, in fact occured.
The question is now: how does the court determine whether or not the defendant in question had a legitimate right to commit his act of violence? This is a question about determining the facts of the case, and the burden of proof is on the defendant: it's like an affirmative defense.
Per the scenarios above, this means that John Jr must prove that Bob killed John, thus granting him (John Jr) the right of retribution against Bob in the first place. The burden of proof is on the defendant to prove that the violation of the NAP, which he is claiming justifies his own act of violence, in fact occured.
You continue:
Re the underlined passage: no, not at all. I am suggesting that once it has been established that the act of violence in question did occur (either because it has been proven to have occurred, or because the defendant admitted that it occurred), then the question arises: was this act of violence actually an instance of just retribution? And if the defendant wishes to claim that the act of violence was just retribution, it is his claim to prove.
To summarize:
Step 1) the plaintiff claims that the defendant committed some act of violence,
Step 2) the court determines whether or not this act of violence in fact occurred, with the burden of proof on the plaintiff;
Step 3) if the court finds that the act did occur, the court then determines whether or not this act of violence is a violation of the NAP (i.e. whether or not it was an acceptable use of violence: e.g. just retribution), with the burden of proof on the defendant to prove that it's not.
As I said several posts back, that was a poor choice of words on my part - obviously, or it wouldn't have yielded such confusion. And I tried to explain what I intended for that remark to mean, but I think my explanation just caused further confusion. So, let's strike the troublesome remark from the record, shall we? Ignore that and listen to what else I've said about the workings of the court, which I think I've described now quite thoroughly. The courts hear only those cases brought before them by the self-ascribed victims, the court determines whether the alleged act of violence occurred (victim as plaintiff has burden of proof), the court determines whether that act of violence was a violation of the NAP (if defendant claims it was justified he has the burden of proof), the court renders a ruling. The end. And as should be evident at this point, the court does nothing but hear cases and make rulings: it does not in any way enforce any ruling, nor does it compel a defendant to attend trial, nor does it compel witnesses to attend, nor jurors, nor does it have any other powers of coercion. It coerces no one in any way or in any case whatsoever. If a plaintiff wins his case, he alone has the right of retribution against the defendant (he always had the right if he was in fact a victim, the trial was just about publicly establishing whether he did or not), which he can exercise personally, or (as we've been discussing) hire a contractor to act on his behalf in exercising that right.
Before moving on, is there anything else about the operation of the government court which is unclear?
Minarchist:Re the underlined passage: no, not at all. I am suggesting that once it has been established that the act of violence in question did occur (either because it has been proven to have occurred, or because the defendant admitted that it occurred), then the question arises: was this act of violence actually an instance of just retribution? And if the defendant wishes to claim that the act of violence was just retribution, it is his claim to prove. To summarize: Step 1) the plaintiff claims that the defendant committed some act of violence, Step 2) the court determines whether or not this act of violence in fact occurred, with the burden of proof on the plaintiff; Step 3) if the court finds that the act did occur, the court then determines whether or not this act of violence is a violation of the NAP (i.e. whether or not it was an acceptable use of violence: e.g. just retribution), with the burden of proof on the defendant to prove that it's not.
This might seem like a quibble to you, but there's a difference between determining whether the violence occurred at all and determining whether it was caused by the defendant. Furthermore, as I said previously, an affirmative defense involves an open admission by the defendant to all or part of the claim brought against him. So it would seem that an affirmative defense, strictly speaking, requires no determination on the part of any court.
Minarchist:As I said several posts back, that was a poor choice of words on my part - obviously, or it wouldn't have yielded such confusion. And I tried to explain what I intended for that remark to mean, but I think my explanation just caused further confusion. So, let's strike the troublesome remark from the record, shall we? Ignore that and listen to what else I've said about the workings of the court, which I think I've described now quite thoroughly. The courts hear only those cases brought before them by the self-ascribed victims, the court determines whether the alleged act of violence occurred (victim as plaintiff has burden of proof), the court determines whether that act of violence was a violation of the NAP (if defendant claims it was justified he has the burden of proof), the court renders a ruling. The end. And as should be evident at this point, the court does nothing but hear cases and make rulings: it does not in any way enforce any ruling, nor does it compel a defendant to attend trial, nor does it compel witnesses to attend, nor jurors, nor does it have any other powers of coercion. It coerces no one in any way or in any case whatsoever. If a plaintiff wins his case, he alone has the right of retribution against the defendant (he always had the right if he was in fact a victim, the trial was just about publicly establishing whether he did or not), which he can exercise personally, or (as we've been discussing) hire a contractor to act on his behalf in exercising that right. Before moving on, is there anything else about the operation of the government court which is unclear?
Aside from what I pointed out above, I don't think so - although I see no reason why the government court system must have jurors.
The plaintiff has the burden of proving that the act which he claims occurred did in fact occur (and, obviously, that the defendant was the actor - as if that needed saying). If it's determined that the act did in fact occur as claimed, then the defendant has the burden of proving that his act was just, if he wishes to make that argument.
I see no reason why the government court system must have jurors.
It is far worse to convict an innocent person than to acquit a guilty person, and certain practices can be employed to minimize the risk of convicting an innocent person: e.g. the right of appeal, double-jeopardy, pardons, and jury trials (where the judge has the right to overturn a jury conviction but not a jury acquittal). Best to error on the side of caution. As I say though, I wouldn't have coerced jury duty. I'd have a large pool of paid volunteers, from among whom jurors are selected randomly for each case. To directly answer your question, the jury allows for the division of power at the court, between itself and the judge, which affords the accused another opportunity to be acquitted. Why a jury and not a second judge? The other advantage of a jury is that it is (in theory) less subject to corruption than a sitting judge, because it's members are drawn at random on a case by case basis. To have only a jury leaves the fate of the accused in the hands of amateurs, while to have only a judge leaves him in the hands of a politician. Whereas, given both, either the accused can be acquitted by an honest jury if the judge is corrupt, or acquitted by an expert judge if the jury is foolish.
To elaborate on the other protections I mentioned; each convicted person should have guaranteed access to one appeal, regardless of the specifics of his case, and the elected representatives of the county would have the power to pardon any of their constituents.*
*I haven't described the entire structure of the government as of yet, so you don't know what I'm talking about when I say "county" et al. The relevant point here is that there are elected officials other than the judge, and these have the power to pardon.
Minarchist:The plaintiff has the burden of proving that the act which he claims occurred did in fact occur (and, obviously, that the defendant was the actor - as if that needed saying). If it's determined that the act did in fact occur as claimed, then the defendant has the burden of proving that his act was just, if he wishes to make that argument.
With all due respect, I think it did need saying. I want to make sure there are as few misunderstandings between us as possible.
Is the defendant allowed to change his line of argument in the middle of the trial? Doing so would seem to be required by what you describe above.
Minarchist:It is far worse to convict an innocent person than to acquit a guilty person, and certain practices can be employed to minimize the risk of convicting an innocent person: e.g. the right of appeal, double-jeopardy, pardons, and jury trials (where the judge has the right to overturn a jury conviction but not a jury acquittal). Best to error on the side of caution. As I say though, I wouldn't have coerced jury duty. I'd have a large pool of paid volunteers, from among whom jurors are selected randomly for each case. To directly answer your question, the jury allows for the division of power at the court, between itself and the judge, which affords the accused another opportunity to be acquitted. Why a jury and not a second judge? The other advantage of a jury is that it is (in theory) less subject to corruption than a sitting judge, because it's members are drawn at random on a case by case basis. To have only a jury leaves the fate of the accused in the hands of amateurs, while to have only a judge leaves him in the hands of a politician. Whereas, given both, either the accused can be acquitted by an honest jury if the judge is corrupt, or acquitted by an expert judge if the jury is foolish.
Why do you consider a judge to be a politician here? Is it because he's elected (as opposed to being for hire)? If a judge were to be for hire instead, would you still consider him to be a politician?
On another note, the possibilities are left wide open for both a corrupt judge and a foolish jury to preside over a trial. In fairness, the same applies to the opposite possibility (expert judge and honest jury).
With all due respect, I think it did need saying. I want to make sure there are as few misunderstandings between us as possible. Is the defendant allowed to change his line of argument in the middle of the trial? Doing so would seem to be required by what you describe above.
It is not difficult to design a government whose only function is judicial, and which does not violate the NAP through its operations. The important question is whether such a government would be viable. Or, what is the same question: can a free market for legal services sustain a natural monopolist? The details of the court procedure for the hypothetical government are not relevant to this question. Do you have anything to say on this question? There's a large amount of material on this that I posted above that elicited no response from you.
I imagine that I would call any elected official a politician.
Yes, that is why I chose to use the word "minimize" rather than "eliminate" when I said: "certain practices can be employed to minimize the risk of convicting an innocent person."
Minarchist:It is not difficult to design a government whose only function is judicial, and which does not violate the NAP through its operations. The important question is whether such a government would be viable. Or, what is the same question: can a free market for legal services sustain a natural monopolist? The details of the court procedure for the hypothetical government are not relevant to this question. Do you have anything to say on this question? There's a large amount of material on this that I posted above that elicited no response from you.
Why are you changing the subject all of a sudden? Didn't you want to clear things up about the procedure of your hypothetical government court system?
Minarchist:I imagine that I would call any elected official a politician.
The implication then is that judges would be elected in your hypothetical government court system. Why couldn't you just say so explicitly instead of giving a rather snarky answer? Do you think I was being snarky to you?
Minarchist:Yes, that is why I chose to use the word "minimize" rather than "eliminate" when I said: "certain practices can be employed to minimize the risk of convicting an innocent person."
Well, how do you think that risk minimized in your hypothetical government court system? Otherwise, I was just noting those other possibilities explicitly for the record.
Didn't you want to clear things up about the procedure of your hypothetical government court system?
No, not really. I never wanted this thread to be about my preferred government court system. I described it briefly when I was asked to describe it, and then I reluctantly responded to the many questions and criticisms about it, but I consider this an excursion from the main issue. There's no question that it is possible to design a firm (such as the government court system) which provides legal services without violating the NAP. The problem with minarchism has never been that minarchists can't figure out how to design a coercion-free government. The problem is how to make this government viable without resorting to coercion. Thus the real debate here is about whether it is possible to have a natural monopolist in a free market for legal services. If so, then my government court system (or any other legal services firm) can exist as that natural monopolist and there can be a monocentric legal system without the State; if not, then not. If you look back, the majority of my comments in this thread address this issue of natural monopoly, why law is special and can sustain a natural monopoly, and I only get into the details of my government court system when I have been asked. Our entire exchange (and our mutual misunderstanding) about court procedure was an excursion of this kind. But if you would like to talk more about the details of my government court system, that's fine by me I guess, I'll post a more detailed outline and we can dig into it.
I did assume you were being pedantic (asking about how I use the word politician) rather than asking a genuine question, because I had already stated (in the first post describing the government courts) that the judges were elected officials. I said: “Judges are elected by citizens for single-terms.” We seem to have a communication problem in general Autolykos.
That's fine. My point was quite simple. Ceteris peribus, it is less likely for several people to be corrupt/inept than for one to be corrupt/inept. Hence the value of leaving the power of judgement in several hands (jurors and the judge), rather than in the hands of a single person (the judge). I think the general rule that power divided is less likely to be abused than power concentrated is fairly non-controversial.
I realized that I had neglected this thread. Sorry about that.
Minarchist:No, not really. I never wanted this thread to be about my preferred government court system. I described it briefly when I was asked to describe it, and then I reluctantly responded to the many questions and criticisms about it, but I consider this an excursion from the main issue. There's no question that it is possible to design a firm (such as the government court system) which provides legal services without violating the NAP. The problem with minarchism has never been that minarchists can't figure out how to design a coercion-free government. The problem is how to make this government viable without resorting to coercion. Thus the real debate here is about whether it is possible to have a natural monopolist in a free market for legal services. If so, then my government court system (or any other legal services firm) can exist as that natural monopolist and there can be a monocentric legal system without the State; if not, then not. If you look back, the majority of my comments in this thread address this issue of natural monopoly, why law is special and can sustain a natural monopoly, and I only get into the details of my government court system when I have been asked. Our entire exchange (and our mutual misunderstanding) about court procedure was an excursion of this kind. But if you would like to talk more about the details of my government court system, that's fine by me I guess, I'll post a more detailed outline and we can dig into it.
With all due respect, I think you're contradicting yourself here. You say that you never wanted this thread to be about your preferred government court system, but you go on to say that your intended purpose of this thread was to debate whether it's possible to have a natural monopolist in a free market for legal services. Obviously your position is that this is possible, and as support for your thesis, you've presented your preferred government court system. However, this means that the thread effectively is about your preferred government court system, which means that if other participants in the thread (such as myself) are confused about one or more aspects of it, it would appear useful for you to clarify them.
So in other words, in using your preferred government court system to try to advance the argument that a natural monopolist is possible in a free market for legal services, you put up your preferred government court system for any/all critical examination. To protest against such examination means you're either confused or being disingenuous.
Minarchist:I did assume you were being pedantic (asking about how I use the word politician) rather than asking a genuine question, because I had already stated (in the first post describing the government courts) that the judges were elected officials. I said: “Judges are elected by citizens for single-terms.” We seem to have a communication problem in general Autolykos.
I wasn't being pedantic in the slightest. That judges would be elected officials (i.e. politicians) in your preferred government court system was highly implicit because the only place you referred to it was in the following: "To have only a jury leaves the fate of the accused in the hands of amateurs, while to have only a judge leaves him in the hands of a politician." I wanted to make this explicit, for the record, as I think leaving it so highly implicit would be insufficiently clear. But I now see that you had referred to judges being elected by citizens for single terms in a much earlier post, so I stand corrected here.
Minarchist:That's fine. My point was quite simple. Ceteris peribus, it is less likely for several people to be corrupt/inept than for one to be corrupt/inept. Hence the value of leaving the power of judgement in several hands (jurors and the judge), rather than in the hands of a single person (the judge). I think the general rule that power divided is less likely to be abused than power concentrated is fairly non-controversial.
Right, that's certainly true from the standpoint of mathematical probability - given 12 uniformly distributed random variables that can be in one of two states, the probability that all 12 will be in the same state is 0.5^12 = 0.000244140625, or less than 3% of 1%. But I don't think it's realistic to model juror behavior that way. I think the chances of all 12 (or however many) jurors being corrupt/inept can be much greater than 0.000244140625.
Plus, even accepting arguendo that a 12-person jury will necessarily be less corrupt/inept than a single person, wouldn't that mean that a 13-person jury will necessarily be even less so? How then does the 12-person jury actually minimize corruption/ineptidude? Mathematically speaking, minimizing that would require a jury of an infinite number of people. Of course, that's not realistic, but the "next best thing" to an infinite-person jury is a jury consisting of everyone. My point here, however, is simply to show that your claim that the risk of convicting an innocent person is not actually minimized by what you advocate.
@Autolykos,
No problem.
With all due respect, I think you're contradicting yourself here. You say that you never wanted this thread to be about your preferred government court system, but you go on to say that your intended purpose of this thread was to debate whether it's possible to have a natural monopolist in a free market for legal services. Obviously your position is that this is possible, and as support for your thesis, you've presented your preferred government court system. However, this means that the thread effectively is about your preferred government court system, which means that if other participants in the thread (such as myself) are confused about one or more aspects of it, it would appear useful for you to clarify them. So in other words, in using your preferred government court system to try to advance the argument that a natural monopolist is possible in a free market for legal services, you put up your preferred government court system for any/all critical examination. To protest against such examination means you're either confused or being disingenuous.
The question of whether a natural monopoly is possible in a free market for legal services is distinct from the question of how any given legal services firm should operate (ethically/legally speaking). The former is an economic question, the latter is an ethical/legal question. For example, we started discussing whether there should be a jury system or not - but this question has no bearing whatsoever on the question of whether it is possible to have a natural monopoly in legal services. I want to discuss the economic question of the possibility of having a natural monopoly, not the ethical questions of how any particular legal services firm (whether one of several rival firms or a monopolist) should operate. The structure of the natural monopolist firm that I'm advocating is relevant only insofar as it pertains to economics. For example, you might point out that the firm is structured in such a way as to have calculation problems. That's germane to the economic question at hand: whereas talking about whether juries should exist or not is not relevant to the economic question at hand, it is a legal/ethical question.
So, let us please limit our discussion to the economic question (can there exist a natural monopoly for legal services in a free market?), and leave the ethical/legal discussion for another time. The details of my proposed system are relevant only insofar as they have economic implications.
Now, since we talked last, I've elaborated on and changed my vision of the government court system. Again, the ethics/legal practices aren't relevant. But there are some new structural features which do change the economics. I don't have time to get into it just now, but I'll post again shortly.
Cheers
Minarchist, you were the one who kept inserting details about your preferred government court system to support your contention that a natural monopoly is inevitable in a free market for legal services. If you didn't want the nature of your preferred government court system to be challenged, then I don't think you should've inserted any details about it. So no, I see nothing wrong with challenging the nature of your preferred government court system as a means of challenging your broader contention. The challenges I was making concerned whether your preferred government court system would actually operate the way you think it would, including whether it would actually constitute a non-aggressive institution. As anarcho-capitalism is not merely an economic theory, I see no reason to limit our discussion to economics. I don't think you've done so yourself to begin with.
With all that said, I look forward to reading about your revised government court system. Rest assured that I will challenge it in exactly the same way that I challenged its first incarnation.