There is a famous article by Rothbard on Law, Property Rights and Air Pollution.
http://mises.org/daily/2120
1. Under the strict liability maxim, how will murderers of loners get punished? It seems they won't get punished, because nobody has precedent for prosecution. I don't see a satisfactory answer to this in the article and it seems that the rest of the article hinges on the strict liability maxim.
In "libertarian law" what are the ways this is addressed?
2. Also interesting again in the same article, unanswered is the following scenario. Imagine A shoots B and claims it is legitimate self defense (as defined in the article). Then B claims that he was acting in legitimate self defense. Seems like the Zimmerman/Martin problem. What does beyond a reasonable doubt mean here? We know A shot B. In the case where A is prosecuted, does A have to prove that it was self-defense or does B have to prove it wasn't.
The solution I like to this is to convict the person that has the least amount of evidence on their side (forget the term for this). Rothbard argues that this principle should never be used, even for small disputes, according to the article reasonable doubt must be used in all cases.
If we adopt a "beyond reasonable doubt" approach it seems we have to assume that A is a murderer beyond reasonable doubt until A proves the self defense case. Either way, we must know what constitutes self defense. I see no solution to this, unless the "reasonable man" maxim is included. What is a reasonable threat to allow self-defense? In the article Rothbard discards this maxim as historical folly, arguing that it is subjective, leads to problems and we don't need it. Anyone with legal knowledge that can fill in what Rothbard didn't mention in the article?
Isn't the "reasonable man" maxim as subjective as the definition of the space around your head or the land that you are homesteading? It is very important to me to set some things straigh, I'd appreciate any feedback.
I'm not a Rothbardian on law though my views mostly coincide on any practical point - you can read my position in detail here.
There is a famous article by Rothbard on Law, Property Rights and Air Pollution. http://mises.org/daily/2120 1. Under the strict liability maxim, how will murderers of loners get punished? It seems they won't get punished, because nobody has precedent for prosecution. I don't see a satisfactory answer to this in the article and it seems that the rest of the article hinges on the strict liability maxim. In "libertarian law" what are the ways this is addressed?
First of all, there will always be crimes which go unpunished even if you designed a social order whose sole goal was to ensure that no crime goes unpunished (Oh wait, that's America circa 2012).
Second, standing is a matter of precedence (in my view, even if this is contra Rothbard) - that is, no one has a right to sue if the victim or the victim's family chooses not to sue. They have right of refusal. By not suing, they are essentially rendering null any other claims on the aggressor. The argument is simple: "Bob is suing me for damages, claiming that I hurt Alice. Yet Alice is not even a witness for Bob on this account, let alone has she sued me herself. If anyone were to sue me for hurting Alice, it would be Alice herself. Since Alice is not suing me, clearly I have not harmed Alice in any way that concerns law." Case closed.
If no one is there to claim precedence (a victim or victim's family), then there is nothing preventing a lawsuit by any interested party. For example, let's say there is a charity called Homeless Angels that investigates murders of homeless people and brings their perpetrators to law. The defendant cannot dismiss the suit pro forma along the above line of argument because it simply does not apply - the victim is dead and, by virtue of the fact that he is homeless, there is probably no family who could sue on his behalf. In this case, why shouldn't any interested party be able to investigate and file suit on the matter? The monetary award (if any) should go to the party that took an interest in the matter since - by taking action - they have homesteaded it.
The essential question is who initiated the aggression. This is the origin of the Hollywood mythos of the Western gunslinger throwing a gun at the feet of his intended victim and challenging him to "pick it up." The idea is that the gunslinger is trying to paper over his intended murder by being able to call a witness to testify that the now dead man "went for his gun first".
In most cases, this is a fairly simple problem to solve using witness testimony, etc. However, the nitty-gritty details of the corner cases can become complex and may not be solvable by law in sufficiently gray areas.
The term you're looking for is preponderance of evidence. It's a really horrible principle because it implies that evidence is like some kind of massive substance which can be weighed on two sides of a scale. Of course, this idea only makes sense in a statist monopoly court where "the Judge" sits on a judgment throne like God Himself and "weighs the souls" of the parties. In private law society, the arbitrator is just a contractor, someone hired to assist the disputants in settling their dispute. The impetus for settlement comes from the disputants themselves, not from "the Judge." The sole criterion of reasonableness or evidentiary finality is the assent of the parties themselves to a settlement.
If we adopt a "beyond reasonable doubt" approach it seems we have to assume that A is a murderer beyond reasonable doubt until A proves the self defense case. Either way, we must know what constitutes self defense.
This still goes back to the Judge-on-the-Throne-Weighing-Souls theory of law.
Clayton -
Clayton: Second, standing is a matter of precedence (in my view, even if this is contra Rothbard) - that is, no one has a right to sue if the victim or the victim's family chooses not to sue. They have right of refusal. By not suing, they are essentially rendering null any other claims on the aggressor. The argument is simple: "Bob is suing me for damages, claiming that I hurt Alice. Yet Alice is not even a witness for Bob on this account, let alone has she sued me herself. If anyone were to sue me for hurting Alice, it would be Alice herself. Since Alice is not suing me, clearly I have not harmed Alice in any way that concerns law." Case closed.
QFT. I'd say this is the most important point you made.
Thanks for the response, I remember now the "interested party" argument, I am convinced on that question. But not on the other one.
Clayton: The essential question is who initiated the aggression. This is the origin of the Hollywood mythos of the Western gunslinger throwing a gun at the feet of his intended victim and challenging him to "pick it up." The idea is that the gunslinger is trying to paper over his intended murder by being able to call a witness to testify that the now dead man "went for his gun first". In most cases, this is a fairly simple problem to solve using witness testimony, etc. However, the nitty-gritty details of the corner cases can become complex and may not be solvable by law in sufficiently gray areas.
This is a bit rhetorical here. That's not the issue at all and these won't be corner cases if you don't set the precendent correct. The issue is when B(shot) prosecutes A(shooter), we have to use "beyond a reasonable doubt". This assumes a "null" hypothesis. Since we know A shot B, that means we have to assume (I) A is guilty or we have to assume (II) A was acting in self-defense. However there is another trial happening where A is suing B for initiating force/assault. In case #2 we have to assume B is innocent, which is the same as assuming A is guilty. We know either A or B initiated force, do you think B and A can be innocent the same time? This is a contradiction, so we must assume A is guilty and B is innocent until A proves the self-defense claim. You understand that this occurs before any witness or evidence is brought in, unless you accept preponderance of evidence as a way to determine what is the null hypothesis.
Clayton: The solution I like to this is to convict the person that has the least amount of evidence on their side (forget the term for this). Rothbard argues that this principle should never be used, even for small disputes, according to the article reasonable doubt must be used in all cases. The term you're looking for is preponderance of evidence. It's a really horrible principle because it implies that evidence is like some kind of massive substance which can be weighed on two sides of a scale.
The term you're looking for is preponderance of evidence. It's a really horrible principle because it implies that evidence is like some kind of massive substance which can be weighed on two sides of a scale.
Well this is how subjective probability works, so it isn't a flawed way of reasoning about events. I understand that legal disputes should not be resolved this way, but when there are two counter-suits going on at the same time, there is no other way of resolving this, because of the null hypothesis problem I alluded to above.
Clayton: If we adopt a "beyond reasonable doubt" approach it seems we have to assume that A is a murderer beyond reasonable doubt until A proves the self defense case. Either way, we must know what constitutes self defense. This still goes back to the Judge-on-the-Throne-Weighing-Souls theory of law.
The judge has to do this. That's what everyone has to do on a daily basis, you have to judge people on preponderance of proof to make good decisions. There is not reason the market can't select people that are good at this to be judges. Obviously only in cases where there is a problem with "reasonable doubt". Here's something to think about, though, in any murder shooting case the murderer shooter can claim self-defense. Currently any government court has to use preponderance of evidence to figure out who should be the accused.
I'm interested in why you skipped the crux of my argument that a dispute between two parties is settled solely by the parties themselves perhaps with the aid of an arbitrator (what "judges" in government monopoly courts currently do today). The "standard of proof" is just whatever the parties themselves consider a satisfactory standard on which to settle the dispute.
I can't imagine there being two lawsuits over the same event in a private law society because there is no advantage to having two separate arbitrations of the same dispute. I think you're (unwittingly) trying to ask is "what would happen in a private law society if a private law society was like our current monopoly law society?" The fundamental difference is that disputants settle their disputes because they want to, not because the state or a judge is compelling them to.
The judge has to do this.
No, he doesn't. The disputants do. The arbitrator (there are no judges in a private law society!) is more of a neutral third-party who helps referee the discussion between the disputants and provides advice on what are convincing or unconvincing arguments based on his expertise in case law and best legal practices and what are reasonable or unreasonable terms of settlement based on the stipulated facts of the case.
That's what everyone has to do on a daily basis, you have to judge people on preponderance of proof to make good decisions. There is not reason the market can't select people that are good at this to be judges. Obviously only in cases where there is a problem with "reasonable doubt". Here's something to think about, though, in any murder shooting case the murderer shooter can claim self-defense. Currently any government court has to use preponderance of evidence to figure out who should be the accused.
Try re-framing the question without using the word "judge" and, instead, think of how the dispute will be settled if there are no judges but only arbitrators.
Clayton: I'm interested in why you skipped the crux of my argument that a dispute between two parties is settled solely by the parties themselves perhaps with the aid of an arbitrator (what "judges" in government monopoly courts currently do today). The "standard of proof" is just whatever the parties themselves consider a satisfactory standard on which to settle the dispute.
I skipped it because I believe it was mearly rhetoric, "settled solely by the parties themselves" and "disputes are settled voluntarily" sound a bit like catch-phrases. You are mistaken in your interpretation of these things. The parties agree at a previous date to an arbitration procedure in case there is a conflict. After the fact, when there is a conflict, one of the parties may want to deny the procedure, but that's too bad. If A says self-defense and doesn't want a trial, A is still brought into the procedure. If both A and B agreed to be arbitrated by a referee or the defense agency which they both subscribe to, then we are discussing what rules the agency must abide by when deciding who is in the wrong.
Clayton: I can't imagine there being two lawsuits over the same event in a private law society because there is no advantage to having two separate arbitrations of the same dispute. I think you're (unwittingly) trying to ask is "what would happen in a private law society if a private law society was like our current monopoly law society?" The fundamental difference is that disputants settle their disputes because they want to, not because the state or a judge is compelling them to.
Just because you can't imagine it is not reason to denounce it. I will expand my scenario in the next reply. I am not basing my example on any of our current situations, nothing that I said hinges on that. The only thing I assume is that there are two parties and that there is a referee(s) that will need to decide using some legal procedure. I am merely discussing what legal procedures should be allowed.
Clayton: No, he doesn't. The disputants do.
No, he doesn't. The disputants do.
They don't necessarily. If they agree to abide by a decision by a "neutral third party" at a previous date. Then the "neutral third party", which is some kind of arbitrator has the right by contract to make a decision about who was at fault. I think this is how most people imagine a legal system, including Rothbard whose thesis I am currently assuming and discussing. If I am wrong correct me.
Note that even if one of them pays a defense agency, then that agency will have to be an arbitrator in a dispute. If there is a conflict of agencies, then according to Block we will have a third-party agency or a common go-to guy that will referee a dispute. In any case someone will be refereeing a dispute the minute B takes on A for shooting him.
Clayton: Try re-framing the question without using the word "judge" and, instead, think of how the dispute will be settled if there are no judges but only arbitrators.
This is mearly your definition of "judge". All I've said up till now doesn't hinge on whether judge means referee or whatever. I am implicitly assuming that there is a voluntary institution with an arbitrator(s) of some sort, which I call a judge. Just because "judge" has a different connotation doesn't mean I am wrong in using the word. I am not trying to play word games here. If I reframe the question the only thing that may change is your intuition, but the logic of the argument will remain the same, there is no point in this then.
I agree with this view: if the victim is dead and has no heirs, then anyone should be able to pursue the aggressor for restitution on their own behalf, just as Clayton described.
I didn't see this posted in this thread yet, so I'll do it now. Clayton has written two excellent posts titled What Law Is and A Praxeological Account of Law. I suggest you read them because you will understand where he is coming from better.
hefty: I skipped it because I believe it was mearly rhetoric, "settled solely by the parties themselves" and "disputes are settled voluntarily" sound a bit like catch-phrases. You are mistaken in your interpretation of these things. The parties agree at aprevious date to an arbitration procedure in case there is a conflict. After the fact, when there is a conflict, one of the parties may want to deny the procedure, but that's too bad. If A says self-defense and doesn't want a trial, A is still brought into the procedure. If both A and B agreed to be arbitrated by a referee or the defense agency which they both subscribe to, then we are discussing what rules the agency must abide by when deciding who is in the wrong.
I skipped it because I believe it was mearly rhetoric, "settled solely by the parties themselves" and "disputes are settled voluntarily" sound a bit like catch-phrases. You are mistaken in your interpretation of these things. The parties agree at aprevious date to an arbitration procedure in case there is a conflict. After the fact, when there is a conflict, one of the parties may want to deny the procedure, but that's too bad. If A says self-defense and doesn't want a trial, A is still brought into the procedure. If both A and B agreed to be arbitrated by a referee or the defense agency which they both subscribe to, then we are discussing what rules the agency must abide by when deciding who is in the wrong.
Just as language is what arises from humans trying to communicate with each other, law is what arises from humans trying to settle disputes nonviolently. If you and I have a dispute, there are only two ways it can be settled, through mutual settlement or by violence. Common law and customary law are what arise from a decentralized system of law. There need not be any binding arbitration for either of these to produce law. Statutory law is what arises when there is a monopoly on the legitimate use of force in any given area. When Clayton refers to arbitration, he is referring to the process of mediation, where two or more participants use a mediator to find a mutually agreeable solution to their dispute. Mediation even exists in the modern world despite there being statutory law. In other words, despite having a state, there are people who are willing to settle disputes without a binding solution already! So I would not dismiss his statements as people do actually settle disputes voluntarily - often without mediation.
hefty: Just because you can't imagine it is not reason to denounce it. I will expand my scenario in the next reply. I am not basing my example on any of our current situations, nothing that I said hinges on that. The only thing I assume is that there are two parties and that there is a referee(s) that will need to decide using some legal procedure. I am merely discussing what legal procedures should be allowed.
Ditto to you. Just because you cannot imagine people settling disputes voluntarily is not a reason to denounce it. And, as I previously stated, people already settle disputes voluntarily in a wide range of disputes.
hefty: They don't necessarily. If they agree to abide by a decision by a "neutral third party" at a previous date. Then the "neutral third party", which is some kind of arbitrator has the right by contract to make a decision about who was at fault. I think this is how most people imagine a legal system, including Rothbard whose thesis I am currently assuming and discussing. If I am wrong correct me. Note that even if one of them pays a defense agency, then that agency will have to be an arbitrator in a dispute. If there is a conflict of agencies, then according to Block we will have a third-party agency or a common go-to guy that will referee a dispute. In any case someone will be refereeing a dispute the minute B takes on A for shooting him.
It is possible for people to agree to abide by a decision made by a neutral third party, but this does not mean they will do so. A dispute is resolved only when all parties have decided it is resolved. This is true even today, in Statist America. For example, a murderer is not punished to the extent that the family of the victim would be satisfied. A member of the family then kills the murderer. Only then is the dispute resolved. This kind of thing does happen, perhaps not commonly with murder, but vindictive ex-spouses keying their ex's car, or something to that effect.
hefty: This is mearly your definition of "judge". All I've said up till now doesn't hinge on whether judge means referee or whatever. I am implicitly assuming that there is a voluntary institution with an arbitrator(s) of some sort, which I call a judge. Just because "judge" has a different connotation doesn't mean I am wrong in using the word. I am not trying to play word games here. If I reframe the question the only thing that may change is your intuition, but the logic of the argument will remain the same, there is no point in this then.
No. Clayton is not defining judge in a different way then you. A judge is someone whose decision is final. A mediator is someone who helps two people reach a mutally agreeable solution. Clayton is using arbitrator in the sense of mediator. So, he is asking you to to imagine how disputes would be settled if there were no judges but arbitrators (mediators).
The parties agree at a previous date to an arbitration procedure in case there is a conflict. After the fact, when there is a conflict, one of the parties may want to deny the procedure, but that's too bad. If A says self-defense and doesn't want a trial, A is still brought into the procedure. If both A and B agreed to be arbitrated by a referee or the defense agency which they both subscribe to, then we are discussing what rules the agency must abide by when deciding who is in the wrong.
This may, in fact, be the way in which a private-law society would organize itself, though I think the historical record is not in favor of this view. Even granting this view that the majority of disputes will be handled by some kind of pre-existing contractual law, those disputes where there is no contractual agreement act as the "exceptions that set the rules". It is in the realm of disputes without any prior agreements where the toughest legal problems reside. The resolutions to these most difficult legal problems set the "baseline" or "failure mode" of the entire legal system.
That is, the sorts of contractual agreements that can come into being at all will be determined by what happens in disputes where there are no pre-existing legal arrangements. People will only bother to form contractual agreements if they expect that failure to do so will result in some kind of undesirable "common law" situation in the event of a dispute. If the customary law is sufficient (people expect to get a "fair" treatment from the customary law), then there is no benefit to the costly business of drafting up complex contracts that attempt to foresee every eventuality.
In my view, customary law is the root foundation of all other forms of law, including even statutes and governments - statutes matter precisely to the extent that they thwart or overturn customary law.
Seems I need to state my counter-example to Rothbard's thesis that we have to do away with (i) "preponderance of evidence" and the (ii) "reasonable man" maxim. The counter-example is basically an abstraction of the Zimmerman/Martin problem, so that should prove its existence.
If I made a mistake somewhere correct me.
Some comments:
gotlucky: Ditto to you. Just because you cannot imagine people settling disputes voluntarily is not a reason to denounce it. And, as I previously stated, people already settle disputes voluntarily in a wide range of disputes.
You are not being fair here. I never said disputes can't be settled voluntarily. I merely have a counter-example where I assume that there is at least that case where they can't be settled voluntarily. If one party rejects the decision of the mediator we will have violence of some sort.
gotlucky: No. Clayton is not defining judge in a different way then you. A judge is someone whose decision is final. A mediator is someone who helps two people reach a mutally agreeable solution. Clayton is using arbitrator in the sense of mediator. So, he is asking you to to imagine how disputes would be settled if there were no judges but arbitrators (mediators).
Then he was pointing out the obvious and so am I. Because people are not angels (this is praxeological truth) sometimes you need a "judge" and a mediator is useless. Can we discuss that case?
@Hefty: Stated that way, my response is this is an "entrepreneurial problem" - we just need a market of defense agencies and free market mediators to find out what should happen. In my view, trying to decide from the armchair what the defense agencies and mediators should do is no different than trying to determine what the market structure of car manufacturing should be from the armchair. They should do what is profitable and the market process will reveal what are the correct arrangements.
The most cogent presentations on this subject (what I like to call the Friedmanite view of private law society) are Graham Wright's videos:
Clayton: The parties agree at a previous date to an arbitration procedure in case there is a conflict. After the fact, when there is a conflict, one of the parties may want to deny the procedure, but that's too bad. If A says self-defense and doesn't want a trial, A is still brought into the procedure. If both A and B agreed to be arbitrated by a referee or the defense agency which they both subscribe to, then we are discussing what rules the agency must abide by when deciding who is in the wrong. This may, in fact, be the way in which a private-law society would organize itself, though I think the historical record is not in favor of this view. Even granting this view that the majority of disputes will be handled by some kind of pre-existing contractual law, those disputes where there is no contractual agreement act as the "exceptions that set the rules". It is in the realm of disputes without any prior agreements where the toughest legal problems reside. The resolutions to these most difficult legal problems set the "baseline" or "failure mode" of the entire legal system.
I don't need to assume a contractual agreement between A and B and I am not using that in any way. The only contractual agreements I assume are between a) A and A's defense agency for protection, b) B and B's defense agency for protection and c) A's and B's defense agencies and the arbitrator. If you like c) can be a voluntary arrangement between A's and B's defenses and a mediator. It doesn't really matter.
I know that's one setup that may or may not happen, but that's the example. Legal principles we are trying to refute or justify should apply equally to this scenario.
Clayton: @Hefty: Stated that way, my response is this is an "entrepreneurial problem" - we just need a market of defense agencies and free market mediators to find out what should happen. In my view, trying to decide from the armchair what the defense agencies and mediators should do is no different than trying to determine what the market structure of car manufacturing should be from the armchair. They should do what is profitable and the market process will reveal what are the correct arrangements.
Thanks for the videos, will watch a little later.
Just want to disagree here, though. It is not a question of leaving it to the market. If that was an ok answer why not just leave everything legal, political and ethical to "the market". You could just say that in the beginning, let the market discuss Rothbard's article. We are the market here. We are the legal entrepreneurs/engineers that are deciding. We can discuss the way a gold standard or banking should work and what the consequences are.
To get you to address the question if you are still interested. I am asking the question of what if we were running these defense agencies and that case came up, what should we do and how should we answer the questions that come up.
Thanks for engaging in this, I've gotten a lot of awesome ideas on legal stuff so far
Hefty: You are not being fair here. I never said disputes can't be settled voluntarily. I merely have a counter-example where I assume that there is at least that case where they can't be settled voluntarily. If one party rejects the decision of the mediator we will have violence of some sort.
Perhaps, though from your dismissive attitude towards Clayton it seemed like you could not imagine a society with mediators as the primary means of settling disputes. But I believe you have not yet read the links I provided, because of the statement in bold. The mediator does not make a decision. The mediator helps the parties involved reach a mutually agreeable decision. And, as I stated earlier, the only two possibilities in a dispute are 1) mutually agreeable solution and 2) violence. I am fully aware that there would be violence of some sort, and I believe that in some cases it is necessary. The only reason a murderer would agree to mediation is to avoid death. The family of the victim may not always believe in capital punishment. They may prefer having the murderer give them a large amount of wealth instead. But, some families may not settle for anything less than the death of the murderer.
Hefty: Then he was pointing out the obvious and so am I. Because people are not angels (this is praxeological truth) sometimes you need a "judge" and a mediator is useless. Can we discuss that case?
I don't believe it was that obvious, because from your response it seemed you missed what he was saying. But, in the case of a mediator being useless, that is because the parties involved cannot reach a mutually agreeable solution. In that case, there is open conflict until they reach a solution or one dies. There is no need for a judge to force a decision, especially if there is no monopoly on the legitimate use of force. For, if there is not state, the judge cannot create a binding decision. If the mediator cannot help, then the dispute becomes open conflict. There are some cases where this is appropriate, in my opinion. Such cases can be murder, rape, child molestation, attempted murder, etc.
Also, I cannot remember what thread it was, but I believe Clayton talked a little about dueling as a form of resolution. It has been legal in the past, though it has not been legal for quite some time. While it may not seem civil, I believe that it may be an appropriate solution in some cases.
why not just leave everything legal, political and ethical to "the market".
Yes, why not? ;-)
You could just say that in the beginning, let the market discuss Rothbard's article. We are the market here.
No, we're not. You cannot just open your own adjudication/mediation company and start hearing criminal cases. The State has monopolized almost every nook and cranny of the market in the production of dispute-resolution services.
We are the legal entrepreneurs/engineers that are deciding.
Without investment, revenue, market prices, etc. no, we're not entrepreneurs and we're not deciding anything, we're just blowing hot air. We say "it ought to be this way" or "no, it ought to be that way" but all that backs up either assertion is hot air. The market is the only process for discovering what is the objectively correct solution to the demands of consumers in any market - law, security, banking and regional defense included.
In other words, Mises's calculation argument applies to every market, not just some markets. Central planning of law discoordinates the demands of consumers from the supply of producers of dispute-resolution services - it results in the same state of affairs as any monopolized market: outrageous prices and abysmal service. The service is so abysmal that it's actually the customer's duty to serve the producer rather than the other way around.
gotlucky: Hefty: You are not being fair here. I never said disputes can't be settled voluntarily. I merely have a counter-example where I assume that there is at least that case where they can't be settled voluntarily. If one party rejects the decision of the mediator we will have violence of some sort. Perhaps, though from your dismissive attitude towards Clayton it seemed like you could not imagine a society with mediators as the primary means of settling disputes. But I believe you have not yet read the links I provided, because of the statement in bold. The mediator does not make a decision. The mediator helps the parties involved reach a mutually agreeable decision. And, as I stated earlier, the only two possibilities in a dispute are 1) mutually agreeable solution and 2) violence. I am fully aware that there would be violence of some sort, and I believe that in some cases it is necessary. The only reason a murderer would agree to mediation is to avoid death. The family of the victim may not always believe in capital punishment. They may prefer having the murderer give them a large amount of wealth instead. But, some families may not settle for anything less than the death of the murderer.
Ok, I agree that a mediator does not make a decision, replace "If one party rejects the decision" with "If one party rejects what the mediator is doing" . There could even be no mediator, A and B get together, have a drink and forget the whole thing. You're right, I can't imagine a society that will always work this way.
Those are not the only two ways, there is a third where there is some violence, but it is based on enforcement of contracts which were voluntary. I gave an example of that here. This is just a semantic issue, but you can't ignore this because you are trying to deduce something from your dichotomy.
gotlucky: They may prefer having the murderer give them a large amount of wealth instead. But, some families may not settle for anything less than the death of the murderer.
They may prefer having the murderer give them a large amount of wealth instead. But, some families may not settle for anything less than the death of the murderer.
They (A) might, but after the procedure I described if (A) continues the conflict, both A's and B's defense agencies will step in to stop (A). A's only option will be to get a rogue agency that doesn't respect other agencies' decisions. Such rogue agencies will have to fight everyone else though. So really there is not a big chance of A trying to go on with this in a violent way.
gotlucky: Hefty: Then he was pointing out the obvious and so am I. Because people are not angels (this is praxeological truth) sometimes you need a "judge" and a mediator is useless. Can we discuss that case? I don't believe it was that obvious, because from your response it seemed you missed what he was saying. But, in the case of a mediator being useless, that is because the parties involved cannot reach a mutually agreeable solution. In that case, there is open conflict until they reach a solution or one dies. There is no need for a judge to force a decision, especially if there is no monopoly on the legitimate use of force. For, if there is not state, the judge cannot create a binding decision. If the mediator cannot help, then the dispute becomes open conflict. There are some cases where this is appropriate, in my opinion. Such cases can be murder, rape, child molestation, attempted murder, etc.
I understood what both of you are saying, but according to my best intellectual facilities, you are not adressing the point, you are trying to refute what I am saying with reasoning that hinges on flawed assumption and you are ignoring my construction and trying to refute it on the basis that it doesn't exist or that I didn't use the appropriate words, i.e it doesn't make sense. There are so many problems here.
"In that case, there is open conflict until they reach a solution or one dies." In my example this is not the case.
"There is no need for a judge to force a decision, especially if there is no monopoly on the legitimate use of force" As I explained, You don't have a monopoly on force, but you still have an arbitration process based on mutual agreement that sticks.
The only conclusion I can get from this discussion is that you don't believe in the way defense agencies are proposed to work or my interpretation of it. Is that true? Regardless this is very off topic, I just have a simple example, can you assume that the example is constructed ok and answer the question about the legal principles?
I really don't mean to be dismissive of anyone (or for that matter, disrespectful in any way). I just want someone to address the case I came up with because it is a real thing.
I believe Clayton talked a little about dueling as a form of resolution. It has been legal in the past, though it has not been legal for quite some time. While it may not seem civil, I believe that it may be an appropriate solution in some cases.
what I find interesting from a libertarian perspective is the efficiency of the process. Robert and Allen have a dispute. Robert and Allen agree to settle their dispute with violence. They (and other interested parties, all consenting adults) go to a secluded area. They perform combat according to specific rules, which if followed, in the worst case scenario might result in 4 deaths (both principals and both seconds). As likely as not, they would reach a settlement with perhaps one injury, or one death, and the loss of a day. Lawyers and courts cost money, and you already lose a day's wages, so basically the only advantage you have is that, you are less likely to have a physical confrontation on that day. But people do get assaulted in courthouses, from time to time, and you have to subject yourself to being disarmed and taken by surprise. And you have to pay a bunch of people to show up, and run things according to their preferences rather than your own. We cant say a lot about the different duelling codes that existed in 19th century southern united states, probably because the women of the families burned those books as soon as they could get away with it, but we do know there were several. And so Robert and Allen could choose from a variety of forms of combat, if they wished.
Clayton: We are the legal entrepreneurs/engineers that are deciding. Without investment, revenue, market prices, etc. no, we're not entrepreneurs and we're not deciding anything, we're just blowing hot air. We say "it ought to be this way" or "no, it ought to be that way" but all that backs up either assertion is hot air. The market is the only process for discovering what is the objectively correct solution to the demands of consumers in any market - law, security, banking and regional defense included. In other words, Mises's calculation argument applies to every market, not just some markets. Central planning of law discoordinates the demands of consumers from the supply of producers of dispute-resolution services - it results in the same state of affairs as any monopolized market: outrageous prices and abysmal service. The service is so abysmal that it's actually the customer's duty to serve the producer rather than the other way around.
Again you are arguing that I shouldn't be talking about law and you shouldn't be addressing the problem because of some contrived reason. Mises' calculation problem is about assigning values and costs to factors or production and producing things effectively, it is about economic calculation. It doesn't apply to ethical principles, each individual can arrive at the correct ethical principles alone through reason. Legal rules and procedures obviously should be ethical.
If you think we shouldn't be discussing ethical or legal principles, then you have, in particular, refuted all of the work on ethics done by Rothbard and others associated at mises. Ethical questions can be pondered and answered based on theoretical constructs. I have a theoretical construct that happens to be real and all I'm asking is for a quick discussion of it.
as for the agreements between defense agencies, I think those would mostly consist of debt instruments that were passed back and forth, so that defense agencies with a lot of felonious clients would go bankrupt, and the rest would mostly trade favors. Felonious clients would be cut loose or fed to the sharks.
Again you are arguing that I shouldn't be talking about law and you shouldn't be addressing the problem because of some contrived reason. Mises' calculation problem is about assigning values and costs to factors or production and producing things effectively, it is about economic calculation.
Precisely - what is lost is that law is fundamentally an economical problem. And I don't just mean this in the (what I feel is somewhat) contrived sense of applying economic theorems to situations outside of voluntary exchange. What I mean is that law exists in a continuum with every other line of production and "what the law should be" is best decided by the same mechanism by which we decide which sorts of shoes should be manufactured - by having producers duke it out with each other in competition to satisfy the demands of customers.
This isn't just because "the free market yields higher utility", either. It is the inevitable consequence of following the simplest conceivable ethical principle: no double-standards! When this principle is followed consistently, you arrive at a social order that does not have "courts", "judges", "police", "statutes" and so on. All these entities exist as corollaries to the State's monopolization of the production of security and dispute-resolution services (double-standard). Eliminate the double-standard and you eliminate the monopoly. Eliminate the monopoly and you eliminate all its appendages, including prisoners in dockets appearing before The Judge sitting on his Great White Throne in order to answer for Their Sins.
It doesn't apply to ethical principles,
Not directly, no. But it doesn't apply to the principles of podiatry as applied to shoe manufacturing, either. You're conflating the end-product with production itself. The calculation argument does indeed apply to production itself - central planning of production is doomed to failure because there is no market test and so the decision-makers simply cannot know if they are making things better or worse.
The same is true of the line of production commonly called "law" as it is of any other line of production. As soon as it is monopolized (centrally planned), the decision-makers in that line of production cannot possibly know if their decisions are making things better or worse, even if they have the noblest of intentions (which they most definitely do not).
Social norms, culture, customs, law, even etiquette are the result of many independent decision-makers interacting in the course of pursuing the attainment of their own ends just like all the other wonderful material products of the market - this is not just an analogy, it is actually the very same process. The distinction between law and other lines of production is conditioned and arbitrary.
each individual can arrive at the correct ethical principles alone through reason.
This is what I dispute and is the kernel of the disagreement between myself and Rothbard, Hoppe and many others.
Legal rules and procedures obviously should be ethical. If you think we shouldn't be discussing ethical or legal principles, then you have, in particular, refuted all of the work on ethics done by Rothbard and others associated at mises. Ethical questions can be pondered and answered based on theoretical constructs. I have a theoretical construct that happens to be real and all I'm asking is for a quick discussion of it.
Well, discussing ethics is fine. I think we can fairly easily derive broad outlines of what is right and wrong on the basis of historical experience and the study of human nature. However, the conclusions drawn are strictly a posteriori. I think it is a mistake to think that we can reason to ethical norms and law from a priori principles. This is what philosophers of law ought to be doing with themselves, rather than praising the holy dictates of the State which is what they spend the majority of their time and energy doing.
@Clayton
Stated that way, my response is this is an "entrepreneurial problem" - we just need a market of defense agencies and free market mediators to find out what should happen. In my view, trying to decide from the armchair what the defense agencies and mediators should do is no different than trying to determine what the market structure of car manufacturing should be from the armchair. They should do what is profitable and the market process will reveal what are the correct arrangements.
I have to take issue with this.
We can indeed sit back and say "let the market sort it out" with respect to the automotive industry precisely because we (as libertarians) accept that whatever emerges from voluntary market interactions is what "should" emerge, and we see that no one's liberty can possibly be infringed upon by the production of one type of car instead of another.
But is the same true with the law industry? Supposing that we begin with the premise of a free-market in law, must we then accept that whatever emerges from the voluntary interactions of the market is what "should" emerge? No. We (as libertarians) cannot accept whatever type of product the law industry produces - we can only accept libertarian law. We can be indifferent about which car is produced because it makes no difference for liberty, but the production of one type of law (non-libertarian) rather than another (libertarian) does have the potential to infringe on liberty.
To be clear, I am not at this time making the argument that it is likely for a free market in law to produce non-libertarian law, but I am saying that market-produced law is in no way necessarily libertarian law. If your position is that any law which the market produces is "good," then you are (by definition) not a libertarian, though you are a market-anarchist (though, once you drop libertarianism, it's unclear [to me at least] what "market anarchy" would really mean).
@Malachi
I am quite surprised to see you supporting duels - you are typically promoting resolving disputes with as little violence as possible. Would I be correct in stating that the reason is because the duel is consensual violence?
Its because of a few reasons, I think that violence is best considered as a type of surgery. You want to do the least amount of damage possible, and preserve as much life as you can. Humans are violent creatures. The Bible teaches that we all have a fallen nature, and we know from our studies of evolution that violent behavior was selected for. Humans are prone to violence, and I think that urge needs to be channeled. If people cannot settle disputes violently and orderly, they will settle them violently and disorderly. The cycle of retributive violence is a kind of monster that consumes wealth, lives, generations of families, and most importantly human happiness. Dueling, in its best examples, is kind of like surgery. Many times a disabling wound was sufficient to settle the dispute. There are a lot of examples of both principles dying, or the partisans engaging in open battle, like anything else, dueling is not some magic cure. I just think it provides a sort of pressure valve when two individuals have a dispute that will not permit nonviolent resolution, there is a means to resolve it with the absolute minimum of bloodshed.
I think a few parallel cases are the phenomena that people who practice martial arts are generally more peaceful than people who dont, people who carry weapons are more polite and less confrontational than people who do not, and veterans are always coming back and turning anti-war. There are beneficial and detrimental ways for humans to express violent urges, "animal spirits" harhar
there are professional concerns here as well. Robert Heinlen observed in Starship Troopers through one of the nco's that the job of infantry is to be selective with violence. Anyone can launch massive amounts of explosives in a specific direction. Only properly trained and equipped infantry (with the right support) can enter a town, locate and capture or kill all redheaded left-handed females, and extract. And the current state-of-the-art in infantry tactics is to treat all attacks as crimes, and forensically locate the individuals responsible. Not that any units are or are not employing state-of-the-art tactics, I wouldnt know.
unfortunately one of the man problems with current human society is that we dont have a rite of passage that is common to our culture. The military fills this gap all too well, and if we reinstituted dueling, I think we might see the return of the swashbucklers.
yes, the mutual consent does make it ethical, although I cant say that it would or would not be moral. Hmmmmmmmm
Hefty: Ok, I agree that a mediator does not make a decision, replace "If one party rejects the decision" with "If one party rejects what the mediator is doing" . There could even be no mediator, A and B get together, have a drink and forget the whole thing. You're right, I can't imagine a society that will always work this way.
I have been saying the whole time that either party can reject the mediation process and prefer violence. It is also possible that both parties could get together and forget the whole thing, and that may be likely for small disputes. I doubt that would happen very often for more serious disputes. Can you explain what you mean by "society working"? One could make the argument that American society does not work. I imagine imprisoned victimless criminals feel that way. I imagine anyone who has lost their home due to eminent domain feels that way. Anybody who was not satisfied with the outcome of a trial feels that way. One could make the case that North Korean society works. After all, it functions. So, what do you mean by a society working?
Hefty: Those are not the only two ways, there is a third where there is some violence, but it is based on enforcement of contracts which were voluntary. I gave an example of that here. This is just a semantic issue, but you can't ignore this because you are trying to deduce something from your dichotomy.
No. There are only two outcomes to a dispute. Either both parties agree to the solution or they don't. It just so happens that when the State decides the solution, most people do not wish to go against the decision of the State. But there are people who do not agree to the solution, and they will act as they see fit. There is no third option.
Hefty: They (A) might, but after the procedure I described if (A) continues the conflict, both A's and B's defense agencies will step in to stop (A). A's only option will be to get a rogue agency that doesn't respect other agencies' decisions. Such rogue agencies will have to fight everyone else though. So really there is not a big chance of A trying to go on with this in a violent way.
Pure speculation. If they want the murderer dead more than any other option, then they will attempt it. Period. That it what it means by will "not settle for anything less than the death of the murderer". If they won't settle for anything less, then they won't. If they will, then it is possible that a defense agency would stop them. But, as I have previously stated, there are people who take vigilante justice in our world today. Obviously, the State did not stop them. So what makes you think some private defense agency will stop them?
Hefty: I understood what both of you are saying, but according to my best intellectual facilities, you are not adressing the point, you are trying to refute what I am saying with reasoning that hinges on flawed assumption and you are ignoring my construction and trying to refute it on the basis that it doesn't exist or that I didn't use the appropriate words, i.e it doesn't make sense. There are so many problems here.
With all due respect, it is your reasoning that is based on false premises, and you are the one who was having trouble with definitions. Would you care to point out which assumptions of ours you believe to be false? In regards to the use of specific words: words mean things. In a debate, they need to mean only one thing for intellectual clarity. From the way you were phrasing your response to Clayton, it was not clear that you understood the difference between a judge and arbitrator (mediator). If you do not use the appropriate words (words that most people here understand to mean certain things), then it is of the utmost importance that you define how you are using the words you use. I am not trying to refute your argument because you don't use the correct words, but if you are not clear with what you are saying, then it is your argument that suffers.
Hefty: I really don't mean to be dismissive of anyone (or for that matter, disrespectful in any way). I just want someone to address the case I came up with because it is a real thing.
Clayton already answered your OP sufficiently. This is the discussion that grew out of his response. But if you would like something specifically about the Trayvon Martin case, then I will direct you to this post here by LogisticEarth. I will quote what I believe to be the most relevant parts of his post here:
LogisticEarth: Ultimately, I really doubt we'll ever get enough evidence to either convict or fully vindicate Zimmerman. He was apparently going to be charged with manslaughter, but that lack of evidence caused the state to drop the case. At this point, there's not much more one can do. Unfortunately, the mob on both sides have formed thier own opinions and seem to be making judgements and accusations about both Martin and Zimmerman. The bottom line is though, we don't know precisely what happened, there is not enough evidence to convict or vindicate, and we must leave it at that unless something new comes to light. The only thing one can do is to draw personal insights from the tragedy, about racial prejudices, about the dangers of escalating situations, and rushing to judgements.
Ultimately, I really doubt we'll ever get enough evidence to either convict or fully vindicate Zimmerman. He was apparently going to be charged with manslaughter, but that lack of evidence caused the state to drop the case. At this point, there's not much more one can do. Unfortunately, the mob on both sides have formed thier own opinions and seem to be making judgements and accusations about both Martin and Zimmerman.
The bottom line is though, we don't know precisely what happened, there is not enough evidence to convict or vindicate, and we must leave it at that unless something new comes to light. The only thing one can do is to draw personal insights from the tragedy, about racial prejudices, about the dangers of escalating situations, and rushing to judgements.
We (as libertarians) cannot accept whatever type of product the law industry produces - we can only accept libertarian law.
This is why I am clear that I am not a strict-NAP libertarian. In the Praxeological Account of Law thread there's a post where I discuss the fact of double-standards necessitated by human nature - parents are in a double-standard relationship with their children, and so on. I think a good argument can be made that a private law society will minimize such double-standards.
I don't take liberty as the highest value. The highest value is satisfaction of wants. The human being has an inherent bent toward special-pleading and exceptionalism but it is the pushback of social norms in combination with his own innate sense of self-interest that forces him to moderate the untamed urge to exploit others whenever the opportunity arises. The capacity for social cooperation is "hardwired" into the human brain.
The idea that murder is intrinsically bad is a product of statism. A state has the ultimate interest in maximizing the population to maximize tax revenue. The dispute that I would have with the killer of a loner/hermit is the behavioural tendency that it might represent. If someone goes around killing hermits what happens when he runs out of those? Anyone should be able to pre-emptively kill serial killers and require at most in abstentia trials to prove that it is necessary to prevent more victims.
The idea that murder is intrinsically bad is a product of statism.
No it's a product of grammar. Murder is a legal / customary term that means "bad", however that may play out or what ever that may be to actual factual relevant context.
"As in a kaleidoscope, the constellation of forces operating in the system as a whole is ever changing." - Ludwig Lachmann
"When A Man Dies A World Goes Out of Existence" - GLS Shackle
FTR, I'll shorten it to: the idea of murder is statist.
Wtf are you talking about? How is the idea of an unjustified killing statist? Justice is not a statist concept. What is this nonsense...
Justice is not a statist concept.
Right, it is a consequence of human interaction. In "An-cap land" I don't think it is far fetched to a put a picture in your head for business' or communities to have some type of murder laws.
It is no more a statist concept than theft, or even property.
Caley McKibbin: The idea that murder is intrinsically bad is a product of statism. A state has the ultimate interest in maximizing the population to maximize tax revenue.
The idea that murder is intrinsically bad is a product of statism. A state has the ultimate interest in maximizing the population to maximize tax revenue.
That's why we can discard the evidence of Stalin's genocide as capitalist propaganda.
I don't think there is any reason to go there. I'm 99% sure that is no where near what he was trying to get at.
gotlucky: Hefty: Those are not the only two ways, there is a third where there is some violence, but it is based on enforcement of contracts which were voluntary. I gave an example of that here. This is just a semantic issue, but you can't ignore this because you are trying to deduce something from your dichotomy. No. There are only two outcomes to a dispute. Either both parties agree to the solution or they don't. It just so happens that when the State decides the solution, most people do not wish to go against the decision of the State. But there are people who do not agree to the solution, and they will act as they see fit. There is no third option.
You can't ignore the contract because that changes the ethics of the situation and the use of violence to enforce the contracts is justified. There is no ethical substance in this truth that they either agree or disagree. By asserting that it brings us nowhere, unless you claim something stronger than that. What you ARE trying to show is that disagreement will lead to one of them dieing and then you claim that's the only thing that stops violence. Who cares about violence, the only thing we care about is which actions are ethically justified and which aren't.
You said, "The only reason a murderer would agree to mediation is to avoid death" [or loss of property I assume], but even that's not true. He might want to ruin the reputation of the other party by saying they were the initial aggressor, or he may use the mediation process to gain wealth or influence or various other reasons. He might even agree to a process falsely believing he was innocent. This tells us nothing about what methodology we should use to figure out whether we can justly use coercion.
I agree that the threat of punishment is the only thing that stops malicious actions of parties that disagree. That's another trivial fact that leads us nowhere, because it says nothing about which actions are justified and when punishment is justified, what principles we must adhere to for the punishment to be justified and when can we coerce someone. We don't need law then, we don't need ethics, either, or to worry about what legal principles should be followed, because, according to Clayton, the market will take care of that. Kind of like letting the market take care of epistemology. So Clayton will be ok if the market gets rid of "beyond a reasonable doubt" and adopts "preponderance of evidence" as a maxim, how is that possible? If he thinks it won't then that's what we are discussing here, whether it has merits and is innevitable or not. In any case what if anything are you implying by saying "either both parties agree to the solution or they don't"?
gotlucky: Hefty: They (A) might, but after the procedure I described if (A) continues the conflict, both A's and B's defense agencies will step in to stop (A). A's only option will be to get a rogue agency that doesn't respect other agencies' decisions. Such rogue agencies will have to fight everyone else though. So really there is not a big chance of A trying to go on with this in a violent way. Pure speculation. If they want the murderer dead more than any other option, then they will attempt it. Period. That it what it means by will "not settle for anything less than the death of the murderer". If they won't settle for anything less, then they won't. If they will, then it is possible that a defense agency would stop them. But, as I have previously stated, there are people who take vigilante justice in our world today. Obviously, the State did not stop them. So what makes you think some private defense agency will stop them?
Interesting take on things. You equate the efficiency of the market to that of the state? I'm not saying what will or won't happen, I'm just telling you what the incentives are. I assume you won't dispute how to analyze economic phenomena. The state does not have those same incentives as the private agencies. "Pure speculation" is everything that anyone has said about anarchy. That being said my example that I wan't to discuss and my construction is pure speculation, however it isn't impossible and the same legal and ethical principles should apply, so "pure speculation" shouldn't stop us from discussion ethics.
gotlucky: Hefty: I understood what both of you are saying, but according to my best intellectual facilities, you are not adressing the point, you are trying to refute what I am saying with reasoning that hinges on flawed assumption and you are ignoring my construction and trying to refute it on the basis that it doesn't exist or that I didn't use the appropriate words, i.e it doesn't make sense. There are so many problems here. With all due respect, it is your reasoning that is based on false premises, and you are the one who was having trouble with definitions. Would you care to point out which assumptions of ours you believe to be false? In regards to the use of specific words: words mean things. In a debate, they need to mean only one thing for intellectual clarity. From the way you were phrasing your response to Clayton, it was not clear that you understood the difference between a judge and arbitrator (mediator). If you do not use the appropriate words (words that most people here understand to mean certain things), then it is of the utmost importance that you define how you are using the words you use. I am not trying to refute your argument because you don't use the correct words, but if you are not clear with what you are saying, then it is your argument that suffers.
Yes, I will supply you with a answer to these things in my next comment.
gotlucky: LogisticEarth: The bottom line is though, we don't know precisely what happened, there is not enough evidence to convict or vindicate, and we must leave it at that unless something new comes to light.
LogisticEarth: The bottom line is though, we don't know precisely what happened, there is not enough evidence to convict or vindicate, and we must leave it at that unless something new comes to light.
The bottom line is though, we don't know precisely what happened, there is not enough evidence to convict or vindicate, and we must leave it at that unless something new comes to light.
Ok, thanks for that. My whole goal was to discuss this. Now imagine Martin was alive and Zimmerman pressed charges against Martin. There was also a free market court and they were at the court. What legal principles should the court use and why not reply to my example?
Hefty: You can't ignore the contract because that changes the ethics of the situation and the use of violence to enforce the contracts is justified. There is no ethical substance in this truth that they either agree or disagree. By asserting that it brings us nowhere, unless you claim something stronger than that. What you ARE trying to show is that disagreement will lead to one of them dieing and then you claim that's the only thing that stops violence. Who cares about violence, the only thing we care about is which actions are ethically justified and which aren't.
No. The ethics are irrelevant. If there is a dispute, there is either peaceful resolution or violent resolution. There is no third option. I am not saying that one party will necessarily die. It is clear to me that you have not read either What Law Is or A Praxeological Account of Law. I suggest you read these.
Hefty: You said, "The only reason a murderer would agree to mediation is to avoid death" [or loss of property I assume], but even that's not true. He might want to ruin the reputation of the other party by saying they were the initial aggressor, or he may use the mediation process to gain wealth or influence or various other reasons. He might even agree to a process falsely believing he was innocent. This tells us nothing about what methodology we should use to figure out whether we can justly use coercion.
Again, I think reading the above linked posts would be of great help to you. But I will explain. The only reason anyone agrees to mediation is because they prefer peaceful resolution to violent conflict. If a murderer agrees to mediation, it is because he prefers to settle the dispute without any further violence. A murderer does not agree to mediation in order to accuse the other party. The other party already believes the murderer is guilty, hence the dispute. If the murderer accuses the other party of being the initial aggressor, why would they believe that? They were there! They know they weren't the aggressor!
In regards to him proclaiming his innocence: that does not refute my statement. If a man is falsely accused of murder, and he agrees to mediation...it is because he prefers peaceful resolution to violent resolution. Please read the posts I linked to.
Hefty: I agree that the threat of punishment is the only thing that stops malicious actions of parties that disagree. That's another trivial fact that leads us nowhere, because it says nothing about which actions are justified and when punishment is justified, what principles we must adhere to for the punishment to be justified and when can we coerce someone. We don't need law then, we don't need ethics, either, or to worry about what legal principles should be followed, because, according to Clayton, the market will take care of that. Kind of like letting the market take care of epistemology. So Clayton will be ok if the market gets rid of "beyond a reasonable doubt" and adopts "preponderance of evidence" as a maxim, how is that possible? If he thinks it won't then that's what we are discussing here, whether it has merits and is innevitable or not.
I agree that the threat of punishment is the only thing that stops malicious actions of parties that disagree. That's another trivial fact that leads us nowhere, because it says nothing about which actions are justified and when punishment is justified, what principles we must adhere to for the punishment to be justified and when can we coerce someone. We don't need law then, we don't need ethics, either, or to worry about what legal principles should be followed, because, according to Clayton, the market will take care of that. Kind of like letting the market take care of epistemology. So Clayton will be ok if the market gets rid of "beyond a reasonable doubt" and adopts "preponderance of evidence" as a maxim, how is that possible? If he thinks it won't then that's what we are discussing here, whether it has merits and is innevitable or not.
Firstly, I would like to direct you to this post here that I wrote in another thread. Secondly, you are referring to law as if it is only statutory law. I am going to quite from one of my posts earlier in this thread:
gotlucky: Just as language is what arises from humans trying to communicate with each other, law is what arises from humans trying to settle disputes nonviolently. If you and I have a dispute, there are only two ways it can be settled, through mutual settlement or by violence. Common law and customary law are what arise from a decentralized system of law. There need not be any binding arbitration for either of these to produce law. Statutory law is what arises when there is a monopoly on the legitimate use of force in any given area.
Just as language is what arises from humans trying to communicate with each other, law is what arises from humans trying to settle disputes nonviolently. If you and I have a dispute, there are only two ways it can be settled, through mutual settlement or by violence. Common law and customary law are what arise from a decentralized system of law. There need not be any binding arbitration for either of these to produce law. Statutory law is what arises when there is a monopoly on the legitimate use of force in any given area.
I suggest you read a little on wikipedia about statutory law, common law, and customary law. They actually exist. I will direct you to a post by Clayton earlier in the thread here.
Hefty: In any case what if anything are you implying by saying "either both parties agree to the solution or they don't"?
In any case what if anything are you implying by saying "either both parties agree to the solution or they don't"?
I'm not really sure how else to break this down. Either the parties agree to a peaceful solution or they don't. Either it is raining or it isn't.
Hefty: Interesting take on things. You equate the efficiency of the market to that of the state? I'm not saying what will or won't happen, I'm just telling you what the incentives are. I assume you won't dispute how to analyze economic phenomena. The state does not have those same incentives as the private agencies.
Interesting take on things. You equate the efficiency of the market to that of the state? I'm not saying what will or won't happen, I'm just telling you what the incentives are. I assume you won't dispute how to analyze economic phenomena. The state does not have those same incentives as the private agencies.
No. I am not equating the efficiency of the market to the state. I was merely pointing out that what you said was baseless. The police cannot stop crime from happening now. A free market in defense and law will not stop crimes from happening either. Your claim was that PDAs A and B will stop A from committing a crime, so A will have to go to a rogue agency. But this is absurd. Crime happens. Sometimes it is prevented, but most crime is not.
Hefty: "Pure speculation" is everything that anyone has said about anarchy. That being said my example that I wan't to discuss and my construction is pure speculation, however it isn't impossible and the same legal and ethical principles should apply, so "pure speculation" shouldn't stop us from discussion ethics.
"Pure speculation" is everything that anyone has said about anarchy. That being said my example that I wan't to discuss and my construction is pure speculation, however it isn't impossible and the same legal and ethical principles should apply, so "pure speculation" shouldn't stop us from discussion ethics.
No. Anarchy is not pure speculation. There is ample evidence to support the idea of a society without rulers. This website is full of said evidence. I am not saying we should not discuss ethics or law. I am just saying that your example was baseless.
Hefty: Yes, I will supply you with a answer to these things in my next comment.
Okay, I await your response.
Hefty: Ok, thanks for that. My whole goal was to discuss this. Now imagine Martin was alive and Zimmerman pressed charges against Martin. There was also a free market court and they were at the court. What legal principles should the court use and why not reply to my example?
What kind of court? Is this one of your "binding arbitration" courts or is this a mediation?
I said before "you are not adressing the point, you are trying to refute what I am saying with reasoning that hinges on flawed assumption and you are ignoring my construction and trying to refute it on the basis that it doesn't exist or that I didn't use the appropriate words, i.e it doesn't make sense". Here is what you've said that I base that on, if you don't know why they are suspect, I can expound on them:
I don't expect anything from anyone. I just want someone to indulge me in my hypothetical situation without dismissing it. This is what intellectual people do in an intellectual setting. This is what law students do in law school. I am not challenging anything that Clayton has theoreticized about. Is it that important that you reject perponderance of evidence, (which I am proposing in a causionary way) that you are willing to say things like this?
Hefty: I am not having trouble with definitions because I define my terms when I use them. If there is an ambiguity you can point it out, and I can tell you what I mean. Otherwise you can deduce from what I am saying what the definition of something (like a judge) is. If you think my definition of judge or something else is wrong, that's inconsequential, you can address my point assuming my definition. You're right that I didn't really understand that a mediator doesn't pass judgment, I assumed it was the case. That's because it is inconceivable to me why we would even discuss the process by which the parties arrive at agreement without coercion. I really think this "mediator with no ethical justification for coercion" concept is fine, but unless you think that solves all our problems, it is inconsequential to my discussion.
I am not having trouble with definitions because I define my terms when I use them. If there is an ambiguity you can point it out, and I can tell you what I mean. Otherwise you can deduce from what I am saying what the definition of something (like a judge) is. If you think my definition of judge or something else is wrong, that's inconsequential, you can address my point assuming my definition. You're right that I didn't really understand that a mediator doesn't pass judgment, I assumed it was the case. That's because it is inconceivable to me why we would even discuss the process by which the parties arrive at agreement without coercion. I really think this "mediator with no ethical justification for coercion" concept is fine, but unless you think that solves all our problems, it is inconsequential to my discussion.
The problem you had was with separating the concept of judge and mediator, as you admit in the bolded line. You proceeded to post responses while working with an incorrect definition. It was eventually corrected.
Hefty: What I meant by that is the the collection of individuals comprising "society" will not work out their differences in that way in all cases at all times. So we need to discuss the cases when they can't.
What I meant by that is the the collection of individuals comprising "society" will not work out their differences in that way in all cases at all times. So we need to discuss the cases when they can't.
Okay. Here is the thing, if they cannot work out their differences, then that means there is violent conflict. As was stated earlier in this thread, sometimes that is the appropriate solution. Sometimes a dispute is over a crime so terrible that violence is the only way to solve it. Even today, the state executes murderers. Their crimes are to be so bad that nothing short of death is sufficient. Dueling is one such form of consensual violent resolution. Malachi wrote a little bit about it here and here earlier in the thread.
I will address your numbered points:
1) Clayton had already addressed the OP, and this was a result of the coversation that followed.
2) In no way does this statement a flawed assumption, nor is it based upon your lack of appropriate words, nor is Clayton ignoring your OP.
3) You have yet to show that people will necessarily follow the result of this "binding arbitration". Even today, people still sometimes ignore the result of a lawsuit judged by the state. We have a monopoly now, if there is no monopoly, who will enforce these "binding" decisions then? Clayton is merely helping you understand why people would seek arbitration to begin with.
4) So what? They seek a judge...that does not contradict Clayton's statement. The parties either agree to the solution or they don't. The judge cannot necessarily make them agree. The state today cannot make both parties necessarily agree. Why would a private court necessarily be able to do this if a monopolist court cannot?
5) This is strange. Why would there be two lawsuits over the same thing by the same people? If you and I have a car accident, why would I sue you twice? The only reason is if there is different information in the second, but that is what Clayton is pointing out...there would not be two lawsuits over the same thing.
6) This is what happens in a discussion. You make an assumption, someone else points out the flaw in that assumption. I could make an assumption about pigs flying, but what good is that?
7) So what? You have a problem understanding what law is. I was trying to show you that law need not necessarily be statutory or based on precedent. It can be customary. You have a had problem this whole thread understanding this despite the fact that customary law is a real thing!
8) Look. You stated that you "skipped his statements because it was merely rhetoric." If it was so obvious, then you would have understood it the first time.
9) So what? The problem you are having is assuming that people will agree to this particular process. It is possible that tomorrow everyone in America will burn all their money, but why would I ever make that an assumption in a argument?
10) I never thought for a moment that you meant "judge" any differently. The problem was with the word "arbitrator". You had trouble with this. Now you don't.
11) The discussion moved it's way here. What is your fascination with your scenario? Are you here to learn or to discuss things only on your terms?
12) Okay. Again, another chance for you to learn. Why the fascination with that particular scenario?
13) Well I agree with him. You are free to theorize what should be done, but it is an entrepreneurial problem.
14) Are you a private judge? Are you a private mediator? If not, then you are not an entrepreneur. So he is very right to dismiss you.
15) Right. He answered your post, and the discussion moved on. It happens.
Hefty: I don't expect anything from anyone. I just want someone to indulge me in my hypothetical situation without dismissing it. This is what intellectual people do in an intellectual setting. This is what law students do in law school. I am not challenging anything that Clayton has theoreticized about. Is it that important that you reject perponderance of evidence, (which I am proposing in a causionary way) that you are willing to say things like this?
You were indulged, however briefly. The discussion moved on.
If you have time to point out each of these points that you take offense to, why not just use that time instead to read some of the recommended material?