Many seems to think that anarcho-capitalism of the Murray Rothbard and David Friedman differs only in arguments, the former using "natural right" ones and the latter "consequentalists". I think that diversion is much more fundamental, and that their versions of anarcho-capitalism are different.
The difference is simple, and it's about the law. David Friedman supports polycentric law, while Rothbard is for "natural law". In polycentric law, the property owners decide what set of laws is used in their lands, and this is the definition of anarcho-capitalism used by Friedman. Rothbard states, that an area which uses "libertarian ethics" and non-aggression principle, is anarcho-capitalist. But according to the definition of Rothbard, Friedmanite version is only partly anarcho-capitalist, basicly in those areas where property owners choose to follow NAP and libertarian ethics. Other areas are not, according to Rothbards definition. This is Rothbard in For a new liberty:
You're asbolutely right that the intellectual divide between Rothbard and Friedman is actually very large.
As much as I love Rothbard's fiery anti-statism, I have to say that I think Friedman's approach is superior both on the issue of fact (it's a better description of the world-as-it-is) and in point of norms (it's a view that is more aligned with how human ethics and law actually develop in society).
I think where Rothbard and Friedman start to diverge is actually on the issue of the importance of the opinion-molding class. While I agree with Rothbard's emphasis on the role of the opinion-molding class in maintaining the State, I think that its role in the shape and character of society itself is distinctly smaller. In other words, while the State is a creature whose existence is dependent on the propaganda of the opinion-molding class, this is not the case for the attributes of anarchic society.
Absent the tax-fed intellectuals spewing propaganda through the State-controlled media, people will not go rushing out to find substitutes for them. The influence of the opinion-molding class is amplified by the State and diminished in its absence. Cultural ideas and social norms develop "from the bottom-up" in this case. The character of society is then largely determined by a much more democratic kind of "memetic competition".
To my knowledge, Friedman is silent about the importance of the opinion-molding class is maintaining the state order (he has this in common with other State-university employed intellectuals with otherwise anti-establishment ideas such as Daniel Dennett or Richard Dawkins). This doesn't mean he disagrees with Rothbard, however. Rather, Friedman's focus is on the character of society as it emerges from the bottom-up processes already well-understood by economics.
Drawn out in cartoon form:
Rothbard: natural laws -> discovered by natural law theorists -> promulgated by opinion-molding class -> (universal?) natural law society
Hoppe: market competition between "aggression insurers" -> diminishing profitability of operating a gang or State -> territorial private property/natural law society
Friedman: market competition between law/security firms -> better law, diminishing profitability of operating an oppressive State -> freer States/private property societies
Me: market competition between law firms (arbitrators) -> better law and morality -> diminishing profitability of operating an oppressive State -> freer States/private property societies -> natural law society?
I would hesitate to call Friedman a legal polycentricist as I'm not aware of any place where he comes down hard on the question of territoriality. Hoppe is strongly territorial and I get the impression that he sees private-law societies as well-defended islands of prosperity, moral decency and legal sanity amidst an ocean of socieities where private property rights are less strong and people are, concomitantly, poorer, more immoral and more lawless.
I can't think of any place where Rothbard talks about territoriality but I think he foresees the natural law order as emerging at the highest levels (i.e. international commerce, merchant law, treaty law, etc.) and then working its way down to smaller, more local legal systems. In this way, there really is no question of territoriality as the natural law order is inherently global and simply works its way down to local law systems.
I think that territoriality is crucial and is built into human nature at such a fundamental level that - even if it's a poor organizing principle by some artificial measures we might devise - it is an inevitable principle of human society. We can imagine competing law systems coexisting territorially (and Friedman actually gives some examples somewhere in his online material) but I think this will remain an exception more than a rule.
I think all three of Rothbard, Hoppe and Friedman contribute important insights into the eventual nature of a freer social order than the present one. Territoriality is important. (Hoppe) Large cap individuals and organizations tend to have better legal arrangements based on saner principles than smaller cap individuals and organizations. (Rothbard) But law is never absolutely territorial. (Friedman)
My one gripe with Friedman is that I think he gives up too easily on the issue of moral philosophy and I think a great deal of valuable work is waiting to just be done by someone in this area.
Clayton -
But few questions about the polycentric law - what if some property owners actually do what Rothbard feared, and start to punish redheads with death in their property? For an adults this isn't a big problem for a long time - they can move out and/or never move in. But what if property owner decides that you can't leave? And what about children? What if property owner decides, "In my property, all newborn shall be automaticly citizens of my property, even without contract". In Friedmanite anarcho-capitalis, there is no-one to stop him. This would naturally be a birth for a new state, because every new generation born under that property are basically under the authority of the property owner, and he could create laws denying the exit from his area. So if anarcho-capitalism is Friedmanite and property owner has total control over his land, what stops it from evolving to a new state?
as for property owners acting like little nations, thats going to happen. But other people can hire private police, security, military, and hostage retrieval services. And in time the market would discover effective service providers, because thats what markets do.
Rothbard supported argumentation ethics.. so really, the whole attempting to refute "natural law" is useless and a waste of time.
This is an excerpt where he discusses Hans-Hermann Hoppe’s argumentation ethics. Nevertheless, by coming out with a genuinely new theory (amazing in itself, considering the long history of political philosophy) Hoppe is in danger of offending all the intellectual vested interests of the libertarian camp. Utilitarians, who should be happy that value-freedom was preserved, will be appalled to find that Hoppean rights are even more absolutist and “dogmatic” than natural rights. Natural rightsers, while happy at the “dogmatism,” will be unwilling to accept an ethics not grounded in the broad nature of things. Randians will be particularly upset because the Hoppean system is grounded (as was the Misesian) on the Satanic Immanuel Kant and his “synthetic a priori.” Randians might be mollified, however, to learn that Hoppe is influenced by a group of German Kantians (headed by mathematician Paul Lorenzen) who interpret Kant as a deeply realistic Aristotelian, in contrast to the idealist interpretation common in the United States. As a natural rightser, I don’t see any real contradiction here, or why one cannot hold to both the natural-rights and the Hoppean-rights ethic at the same time. Both rights ethics, after all, are grounded, like the realist version of Kantianism, in the nature of reality. — Murray N. Rothbard, Beyond Is and Ought
This is an excerpt where he discusses Hans-Hermann Hoppe’s argumentation ethics.
Randians might be mollified, however, to learn that Hoppe is influenced by a group of German Kantians (headed by mathematician Paul Lorenzen) who interpret Kant as a deeply realistic Aristotelian, in contrast to the idealist interpretation common in the United States.
As a natural rightser, I don’t see any real contradiction here, or why one cannot hold to both the natural-rights and the Hoppean-rights ethic at the same time. Both rights ethics, after all, are grounded, like the realist version of Kantianism, in the nature of reality.
— Murray N. Rothbard, Beyond Is and Ought
Re: "So if Catholics restrict abortion in their lands, that's not anarcho-capitalism according to the Rothbard. Same goes for Jewish regions and circumcision." = Sorry no, that's complete bullshit and a terrible strawman.
Under total privatization [..] With every locale and neighborhood owned by private firms, corporations, or contractual communities, true diversity would reign, in accordance with the preferences of each community. Some neighborhoods would be ethnically or economically diverse, while others would be ethnically or economically homogeneous. Some localities would permit pornography or prostitution or drugs or abortions, others would prohibit any or all of them. The prohibitions would not be state imposed, but would simply be requirements for residence or use of some person’s or community’s land area. While statists who have the itch to impose their values on everyone else would be disappointed, every group or interest would at least have the satisfaction of living in neighborhoods of people who share its values and preferences. While neighborhood ownership would not provide Utopia or a panacea for all conflicts, it would at least provide a “second best” solution that most people might be willing to live with. 20M. N. ROTHBARD, Nations by Consent: Decomposing the Nation State, in <<Journal of Libertarian Studies>>, vol. 11, n.1, Fall 1994, p. 7
Consequentialists if you want to take down Murray and AE's "dogmatism" you're going to have to go through it. AE clears up the red head issue clearly.
Seriously, just no to this whole thread and pretty much everything said in it.
"In polycentric law, the property owners decide what set of laws is used in their lands, and this is the definition of anarcho-capitalism used by Friedman."
That is not correct. Not even close to correct.
The Machinery of Freedom is webbed on my site, if you want to find out what the system I am proposing actually is.
"To my knowledge, Friedman is silent about the importance of the opinion-molding class is maintaining the state order (he has this in common with other State-university employed intellectuals"
Do you define "state-university employed intellectual" as anyone who has ever worked for a state university? I last taught at a state university (UCLA) 29 years ago, and I first taught at one after I had written The Machinery of Freedom, so it's hard to see how such employment could explain my views.
Friedman: market competition between law/security firms -> better law, diminishing profitability of operating an oppressive State -> freer States/private property societies"
From your first arrow on, that is not my argument.
"I would hesitate to call Friedman a legal polycentricist as I'm not aware of any place where he comes down hard on the question of territoriality. "
Why would you assume that territoriality is required for polycentric law?
"My one gripe with Friedman is that I think he gives up too easily on the issue of moral philosophy and I think a great deal of valuable work is waiting to just be done by someone in this area."
Any millenium now.
Philosophers still study Plato and Aristotle. Physicists and biologists don't.
@David Friedman: I stand corrected and retract the comments about employment (though I'm still disgruntled with Dennett). And, of course, I will not insist on my summary of your ideas in the face of your correction.
I think evolutionary psychology is giving us a microscope on human nature that we never had before so we can actually give some answers to the question "What is human nature?" that rise above the level of mere opinion. And why can't it be the case that Epicurus and Aristotle - or even Buddha - got it right the first time and people have been simply ignoring the clear and concise answers that they worked out thousands of years ago?
That is not correct. Not even close to correct. The Machinery of Freedom is webbed on my site, if you want to find out what the system I am proposing actually is.
Thank you for your personal answer Professor Friedman. I have a copy of your book, but it's at my other aparment at the moment, so thanks for the information.
= Sorry no, that's complete bullshit and a terrible strawman.
I have never seen that writing before. It seems that Rothbard changed his views when he got older.
as for property owners acting like little nations, thats going to happen. But other people can hire private police, security, military, and hostage retrieval services. And in time the market would discover effective service providers, because thats what markets do
Why not? I own a huge chunk of land let people move in if they obey my orders. They do it voluntarily, and no one else has right to stop me on my land. After few decades I decide that people in my property cannot live without my permission, punished by death. More years pass, and I decide that all children will have to follow my orders and law from the birth. All who live in my property accept this, but it doesn't matter because when they moved to my property, they voluntarily decided to live under my reign. So years pass, and first movers die. Those who remain are children, and they must follow my orders, because law in my property says so. And we have a new state. What could stop me or any other, if property owner can decide about anything on his lands? Children are important part of this scenario.
"In polycentric law, the property owners decide what set of laws is used in their lands, and this is the definition of anarcho-capitalism used by Friedman." That is not correct. Not even close to correct.
Yeah, good luck with that.
That said, “rights” conceived as historically evolved phenomena must be kept distinct from “rights” viewed within the framework of a priori reasoning and justification, as discussed in Part I. On this, Hoppe writes: “Can rights emerge from tradition a la Hume or Burke? Of course, they always do. But the question of the factual emergence of rights has nothing to do with the question of whether or not what exists can be justified” — HHH, 2006, p. 402
Re: "I have never seen that writing before. It seems that Rothbard changed his views when he got older."
He didn't change his views. If something has lead you to that conclusion, it is because you are confused.
Introduction to Libertarian Legal Theory - Kinsella
"... Obviously, there remains much work for libertarian intellectuals to do, to refine, develop, and extend this relatively young body of political theory. Rothbard, for example, recognized that even in a free society there is a need to further develop libertarian principles so that they could be applied to human interaction. In particular, libertarian legal and political theorists and specialists would use general libertarian principles to develop a more concrete body of libertarian law. As Rothbard wrote in Power and Market,
The Law Code of the purely free society would simply enshrine the libertarian axiom: prohibition of any violence against the person or property of another (except in defense of someone's person or property), property to be defined as self-ownership plus the ownership of resources that one has found, transformed, or bought or received after such transformation. The task of the Code would be to spell out the implications of this axiom (e.g., the libertarian sections of the law merchant or common law would be co-opted, while the statist accretions would be discarded). The Code would then be applied to specific cases by the free-market judges, who would all pledge themselves to follow it.
And in his preface to The Ethics of Liberty, Rothbard said,
While the book establishes the general outlines of a system of libertarian law, however, it is only an outline, a prolegomenon to what I hope will be a fully developed libertarian law code of the future. Hopefully libertarian jurists and legal theorists will arise to hammer out the system of libertarian law in detail, for such a law code will be necessary to the truly successful functioning of what we may hope will be the libertarian society of the future.[3]
In addition to applying libertarian principles in this manner, there is much to digest in Rothbard's body of writing alone, not to mention that of other important thinkers...."
[3] Emphasis added. See also this passage from The Ethics of Liberty:
Law would develop in an anarchistic market society without any form of State. Specifically, the concrete form of anarchist legal institutions — judges, arbitrators, procedural methods for resolving disputes, etc. — would indeed grow by a market invisible-hand process, while the basic Law Code (requiring that no one invade any one else's person and property) would have to be agreed upon by all the judicial agencies, just as all the competing judges once agreed to apply and extend the basic principles of the customary or common law.
===================================
That is what is essentially meant in regards to the 'law code'. Of course renegade judges could choose not to adhere to the NAP at all.. but then their patronage would be miniscule, and they would end up going out of business.
"Ethics — the validity of the principle of self-ownership and original appropriation — is demonstrably not dependent and contingent upon agreement or contract; and the universality claim connected with Rothbard's libertarianism is not affected in the slightest by the circumstance that moral discussants may or may not always come to an agreement or contract. Ethics is the logical-praxeological presupposition — in Kantian terminology: die Bedingung der Moeglichkeit — rather than the result of agreement or contract. The principles of self-ownership and original appropriation make agreement and contract — including that of not agreeing and contracting — possible. Set in motion and stimulated by the universal experience of conflict, moral discussion and argument can discover, reconstruct, explicate, and formulate the principles of self-ownership and original appropriation, but their validity in no way depends on whether or not this is the case, and if so whether or not these formulations then find universal assent."
— Hoppe, Intro to TEOL.
The whole "vs." issue is boring. The way I see it is that others simply choose to focus on different elements of the same system [image].
Action-based legal theory provides tools to take into each case. It supplies some of the underlying questions to which case-specific details shape answers. Legal principles guide inquiry into specifics while emerging details suggest the most relevant set of legal principles to apply. Justice may be found at the meeting theory and practice—of deduction, institutions, and the details of specific cases. Sound theory functions as a service to legal practitioners, enabling them do their jobs more easily and reliably. […] Legal practice should always be on trial in the court of legal theory, while legal theory should be recognized as insufficient to do justice in any real case. Legal theory and legal practice must therefore persist in a challenging but necessary marriage between distinctive partners if they are to produce the offspring of justice. Used properly, praxeological legal concepts not only boost the clarity of legal theorizing from “the armchair,” they also enhance the ability of practitioners to parse specific cases from “the bench.”
Action-based legal theory provides tools to take into each case. It supplies some of the underlying questions to which case-specific details shape answers. Legal principles guide inquiry into specifics while emerging details suggest the most relevant set of legal principles to apply. Justice may be found at the meeting theory and practice—of deduction, institutions, and the details of specific cases. Sound theory functions as a service to legal practitioners, enabling them do their jobs more easily and reliably. […]
Legal practice should always be on trial in the court of legal theory, while legal theory should be recognized as insufficient to do justice in any real case. Legal theory and legal practice must therefore persist in a challenging but necessary marriage between distinctive partners if they are to produce the offspring of justice. Used properly, praxeological legal concepts not only boost the clarity of legal theorizing from “the armchair,” they also enhance the ability of practitioners to parse specific cases from “the bench.”
(Source: libertarianpapers.org)
This is my main point on Rothbard. What if there is no demand for libertarian ethics in the law market? Why would anyone aside Rothbardians adopt NAP as legal code in their property? It seems that people assume that most of property owners would magically become Rothbardians and create this demand for NAP judges.
The current legal system in the Anglo-Saxon world is an awkward marriage of common-law with state legislation. Once you get rid of the latter, the old common-law does essentially use the non-aggression principle as its basis. No positive duties are imposed non-consensually in terms of common-law principles.
The state, the family, and the institution of slavery are the only historical situations in which universal natural law has been generally believed by those alive at the time not to apply.
The challenge is not to introduce most people to the concept that aggression is wrong - almost everyone who has ever lived has accepted that principle, with exceptions. Every system of law that has ever been put to stone or parchment has held it as a general principle, and enumerated various exceptions to it from there. The challenge is to eliminate the notion that there are any valid exceptions.
What if there is no demand for libertarian ethics in the law market? Why would anyone aside Rothbardians adopt NAP as legal code in their property? It seems that people assume that most of property owners would magically become Rothbardians and create this demand for NAP judges.
Dr. Friedman, how do you define "law"? I could find nowhere in The Machinery of Freedom where you define it before you talk about it in Part III of that book.
The keyboard is mightier than the gun.
Non parit potestas ipsius auctoritatem.
Voluntaryism Forum
gamma_rat: The current legal system in the Anglo-Saxon world is an awkward marriage of common-law with state legislation. Once you get rid of the latter, the old common-law does essentially use the non-aggression principle as its basis. No positive duties are imposed non-consensually in terms of common-law principles.
Common law systems are close to the right idea but not quite there, in my opinion. Common law is far better than statutory law, but it is rule by judges. It is highly decentralized, as opposed to statutory law which is centralized by definition. This is why I prefer common law to statutory law, but I don't think it goes the whole nine yards. The system I prefer is essentially mediation as the basis of law, and I believe that customary law is the closest to that.
gamma_rat: The challenge is not to introduce most people to the concept that aggression is wrong - almost everyone who has ever lived has accepted that principle, with exceptions. Every system of law that has ever been put to stone or parchment has held it as a general principle, and enumerated various exceptions to it from there. The challenge is to eliminate the notion that there are any valid exceptions.
QFT. Golden rule ftw!
Isn't common law the same thing as customary law?
No, common law is precedent law. Customary law is just based on customs.
Re: "This is my main point on Rothbard. What if there is no demand for libertarian ethics in the law market? Why would anyone aside Rothbardians adopt NAP as legal code in their property? It seems that people assume that most of property owners would magically become Rothbardians and create this demand for NAP judges."
That's your main "point" on Rothbard, which fails yet again.
"A further point: in a profound sense, no social system, whether anarchist or statist, can work at all unless most people are "good" in the sense that they are not all hell-bent upon assaulting and robbing their neighbors. If everyone were so disposed, no amount of protection, whether state or private, could succeed in staving off chaos. Furthermore, the more that people are disposed to be peaceful and not aggress against their neighbors, the more successfully any social system will work, and the fewer resources will need to be devoted to police protection. The anarchist view holds that, given the "nature of man," given the degree of goodness or badness at any point in time, anarchism will maximize the opportunities for the good and minimize the channels for the bad. The rest depends on the values held by the individual members of society. The only further point that need be made is that by eliminating the living example and the social legitimacy of the massive legalized crime of the state, anarchism will to a large extent promote peaceful values in the minds of the public."
-- Society Without a State, Rothbard.
It is my view that human culture is too sensitive to what might seem to be small details for us to be able to reliably predict what the overall character of society will be under specific counter-factual conditions such as market competition in law and security. The net character of a society is, in my view, a lot like a money price in a heavily traded good or commodity - there are innumerable facts that went into the price of oats on your corner grocery store's shelf.
I don't think that human nature is particularly libertarian if by libertarian we mean having something like the preference for social order shared by those on this forum. Of course, neither is it Euro-statist.
I am extremely skeptical of any view of society that begins with an envisioned "outcome" and then proceeds to construct a path to bring about this outcome. I'm not saying we can't arrive at meaningful criticism of the present social order - the Abolitionists were right as were the classical liberals, as far as they went. Nor am I saying that we can't work out strategies to bring about change in society. But what I am saying is that it is easy to be immodest in one's vision and goals and thereby be misled into choosing ineffective or even counter-productive strategies in the attempt to solve social problems that have been correctly identified as problems.
Clayton: I don't think that human nature is particularly libertarian if by libertarian we mean having something like the preference for social order shared by those on this forum. Of course, neither is it Euro-statist.
I would say the vast majority of people recognize the golden rule as a pretty decent standard. And as I've said before, the NAP is just a legal realization of the golden rule. The problem is that the vast majority of people who accept the golden rule don't understand its logical implications. You have talked about this before when you talk about eliminating the statist double standard (iirc you are not against all double standards).
I would not say that human nature is libertarian or conservative or liberal or socialist or anything political. What is universal among all humans is that we want to satisfy our wants and needs. The distinction is made between people who want to do this with social cooperation and those who do not. Libertarian anarchists are just people who recognize that the state is in the latter category.
As I see it, the main practical difference between Rothbard's description of a working anarcho-capitalist society and Friedman's is the existence in Rothbard's of "the basic Law Code"
Rothbard:Law would develop in an anarchistic market society without any form of State. Specifically, the concrete form of anarchist legal institutions — judges, arbitrators, procedural methods for resolving disputes, etc. — would indeed grow by a market invisible-hand process, while the basic Law Code (requiring that no one invade any one else's person and property) would have to be agreed upon by all the judicial agencies, just as all the competing judges once agreed to apply and extend the basic principles of the customary or common law.
This basic Law Code is absent in Friedman's description. In Friedman's description, not just the concrete form but also the basic principles of law "grow by a market invisible-hand process". By making the assumption that there is an underlying Code agreed upon by all "reasonable" courts, Rothbard does not discuss what happens when courts disagree on the fundamental principles of law. There are just "reasonable courts" and "outlaw courts" in Rothbard's world. Friedman takes this extra step and discusses how courts with disagreements about principles might interact, and explains the invisible-hand process that Rothbard missed.
Government Explained 2: The Special Piece of Paper
Law without Government
"I think this seems to be pretty clear polycentric law - property owners decide what law is used in their property."
You are mistaken. It is polycentric law, but it isn't whose property events occur on that determine the law.
If you read all of part III of the book, which is where I describe the system, you will see that the legal rules which apply to a dispute are those agreed to in advance between the rights enforcement agencies of the two parties disputing.
No, the "basic law code" is the NAP. That's essentially it. What's the alternative? A conflict arises, and two parties go to a 3rd party (judge) to resolve the dispute.. and the judge constantly and openly goes with the initiator / aggressor as being in the right. Outlaw judge / court. Maybe there would be a group of individuals who have a "fight club" of sorts. But then even so, if they've agreed to abide by the rules of the covenant then it wouldn't be an initation. Anyway beyond that it is retarded, and not really worthy of discussion outside of what Rothbard has written elsewhere in regards to it. It's disingenuous to say he "missed it". An "agreement" is NOT a contract, as per Rothbard's own writings on property-transfer title theory. So the charachterisation / blowing it up that everyone must come to some strict adherance / formally accept it in some capacity is errorenous. Everyone on the market when they exchange, validate via demonstrated preference an "agreement" to abide by the NAP in that instance.
When you however, see for example.. two parties A and B making an agreement (Hit man contract) to initiate aggression against C, that isn't an "agreement" to abide by the NAP. These individuals are thus "outlaws" and "rogue" in that sense. The "basic law code" is really just an overt acceptance of what is already present.
"Ethics - the validity of the principle of self-ownership and original appropriation - is demonstrably not dependent and contingent upon agreement or contract; and the universality claim connected with Rothbard's libertarianism is not affected in the slightest by the circumstance that moral discussants may or may not always come to an agreement or contract. Ethics is the logical-praxeological presupposition - in Kantian terminology: die Bedingung der Moeglichkeit - rather than the result of agreement or contract. The principles of self-ownership and original appropriation make agreement and contract - including that of not agreeing and contracting - possible. Set in motion and stimulated by the universal experience of conflict, moral discussion and argument can discover, reconstruct, explicate, and formulate the principles of self-ownership and original appropriation, but their validity in no way depends on whether or not this is the case, and if so whether or not these formulations then find universal assent." - Hoppe, Intro to TEOL.
Similiary:
"To maintain that no such thing as a rational ethic exists does not imply “tolerance” and “pluralism,” as champions of positivism such as Milton Friedman falsely claim, and moral absolutism does not imply “intolerance” and “dictatorship.” To the contrary, without absolute values “tolerance” and “pluralism” are just other arbitrary ideologies, and there is no reason to accept them rather than any others such as cannibalism and slavery. Only if absolute values, such as a human right of self-ownership exist, that is, only if “pluralism” or “tolerance” are not merely among a multitude of tolerable values, can pluralism and tolerance in fact be safeguarded." 1997. “The Western State as a Paradigm: Learning from History.” in Paul Gottfried, ed., Politics and Regimes: Religion & Public Life, Vol. 30, Edison, NJ: Transaction Publishers; www.hanshoppe.com/wpcontent/uploads/publications/hoppe_western-state-paradigm-1997.pdf
Conza88: No, the "basic law code" is the NAP. That's essentially it. ... The "basic law code" is really just an overt acceptance of what is already present.
No, the "basic law code" is the NAP. That's essentially it.
...
The "basic law code" is really just an overt acceptance of what is already present.
That's just it; that's the point I'm making. Rothbard is assuming that most people already agree with the NAP and then discusses how courts interact within this NAP-loving society. Whereas Friedman is making a weaker assumption: just that there is no government, no monopolist of law, no agency of legitimized coercion. He doesn't assume that people further agree with all the implications of the NAP, which enables him to discus the interraction between a court that bans heroin and one that doesn't. This is what I am saying Rothbard missed by making the assumption he did about NAP; conflicts between courts in his world were always under the umbrella of the NAP, the basic Law Code, and any court that would ban heroin, clearly a NAP violation, was simply branded an outlaw court and considered not worth worrying about.
The Rothbard quote is quite clear that there is something in his system that does NOT emerge from a market invisible-hand process, i.e. the basic Law Code. So how does it emerge? For Rothbard, the answer seems to be that there is simply philosophical agreement about it by all reasonable people, and so he starts his analysis of a free society already assuming this underlying philosophical agreement. It's not an unreasonable starting point, but I think you can go back further and ask what process might give rise to widespread adoption of the NAP, other than a philosophical agreement about it.
David Friedman: If you read all of part III of the book, which is where I describe the system, you will see that the legal rules which apply to a dispute are those agreed to in advance between the rights enforcement agencies of the two parties disputing.
I don't think David Friedman approaches the question from a rights point-of-view. He's doing "comparative institutional analysis" - if you have system A, you get outcome X, if you have system B, you get outcome Y.
Like I implied earlier (in a post that seems to have gotten buried), I think it's important to come to an agreed-upon definition of "law". I don't see how such a definition has already been agreed upon. For example, in Dr. Friedman's depiction of "prohibitions against heroin use", does that mean "people are not allowed to use heroin on my property", or does it mean "people who use heroin are not allowed on my property", or does it mean "it's permitted to imprison, maim, and/or kill people who use heroin", or does it mean something else entirely?
gotlucky:No, common law is precedent law. Customary law is just based on customs.
Aren't precedents customs?
Autolykos: Aren't precedents customs?
Not necessarily. Once a judge makes a decision, it becomes precedent, and all other judges are supposed to follow this decision. But that doesn't make it a custom. Once a precedent is set and has been followed for a while, one could make the argument that it has become custom, but something doesn't happen once and become custom.
The difference between the two, and I could be mistaken, is how long it takes something to be considered law. It common law, it only takes one decision, whereas in customary law it would take a lot longer to be considered law, as it needs to be a custom first. I suppose a better way of stating it: Customs become law in customary law, and precedents become custom in common law.
Does that make sense?
And where is your site?
I think that Rothbard and Friedman are basically discussing different things.
Rothbard is discussing morality and what the law should look like according to his view of morality, based on his definition that anything that furthers people's basic natural inclinations, including survival and cooperation, is moral. As pointed out, he does not discuss what the situation would be in a poly-centrist legal society where many parties had different views of morality, only how conflicts would be solved in a society where everybody held his views.
Friedman is not discussing morality at all. He discussed what poly-centrist legal society would look like. As far as I understand, he doesn't have a view of objective morality, nor does he think we can arrive at one. I don't think he is a moral nihilist or subjectivist, but more of an intuitionist.
I think there is a third view which neither of them holds, and that is what seems to me a version of contractarianism: it describes what morality and/or law ought to be if their goal is for people to cooperate with each other. This view describes what law ought to be if the goal of the law is to reduce conflict.
My problem with Rothbard's view is that it assumes human nature to be something specific, and derives from it what human goals should be. But every human's nature (and, therefore, goals) is different. Furthermore, it doesn't justify why following human nature should be the greatest ought.
My problem with the contractarian view (or what I described as contractarian) is basically the same — it assumes that all people desire the same from the law: peaceful resolution of conflicts. But maybe people want to live in a society where there is a certain degree of violence, but there is protection of what they consider to be moral? For instance, a libertarian fundamentalist Christian has to decide what he cares about more: the fact of the government's aggression or that people are prevented from committing sodomy. There is no good objective reason why he should abhor the former more.
My problem with Dr. Friedman's (and contractarian, to some extent) approach is that it doesn't explain what our preferences ought to be. I.e., why should I prefer the free society? For greater utility? For greater freedom? Is it implied that my intuitive morality should place freedom as the top preference? Why?
The same is with NAP: before one defines aggression, one must define property and, most importantly, justify his definition. Both Rothbard's and Hoppe's defense for their view of property seems to me to have holes and question begging. Dr. Friedman doesn't have any coherent definition of property (but then, he doesn't care about NAP).
Contractarian approach seems to me to be the most straightforward in that it suggests that we ought to define property in such a way as to minimize conflict (which suggests homesteading and self-ownership), but, again, it's not clear why people ought to place conflict minimization as the priority in what they expect from law and property definition. (Some may want artists rewarded for their work more than to avoid conflict. I want to make sure that children are protected from abuse before they become adults, but that I also get to eat animals. I am yet to see a coherent, contradiction-free explanation of how our definition of property should protect children but allow us to use animals to our hearts' content.)
So, overall, Dr. Friedman's theory seems to be the most coherent, but then it simply avoids the question of what we should consider as property or as moral today. E.g., if I lose my phone and someone finds it, ought he return it to me? Rothbard may have a clear answer to the question for everyone. But Dr. Friedman would presumably say: "Today, do what your intuition tells you. In the future, probably the same, unless the original owner discovers that you kept the phone, in which case your protection agencies will figure it out between themselves." But also, because there is no moral justification of one legal view over another, Dr. Friedman's legal universe is basically a nuanced version of "might makes right", with the addendum: "if it's economically feasible for it to do so". That may be a good description of how things will be, but not a good description of how things ought to be, unless one is a utilitarian.
I also wonder whom Robert Murphy "agrees to": Friedman or Rothbard. His view on law in stateless society seems to be in common with Friedman.
"For example, in Dr. Friedman's depiction of "prohibitions against heroin use", does that mean "people are not allowed to use heroin on my property", or does it mean "people who use heroin are not allowed on my property", or does it mean "it's permitted to imprison, maim, and/or kill people who use heroin", or does it mean something else entirely?"
It means that the rights enforcement agency employed by the person who wants to use heroin has agreed with the rights enforcement agency employed by the person who wants to ban heroin that the use of heroin is a criminal (or possibly) civil offence, hence that force can be used to prevent it.
I don't know where various of you are getting this "on my property" business, since that has nothing to do with what I wrote. I'm not imagining an anarcho-capitalist society as a patchwork of tiny sovereign states but as a network of pairwise agreements.
I apologize, by the way, for sometimes answering the same post twice. I come across something discussing my ideas via google and answer it again before realizing that I've answered it before.
Someone asked where my site is. It isn't hard to find. www.daviddfriedman.com.
Active link: www.daviddfriedman.com
I think the major mistake both Friedman and Rothbard incur is that they downplay the costs of creating the whole framework of contracts that would be necessary in order to achieve their visions of anarchism.
The reason why (political) violence exists is that it is an economic resource. Sometimes it is cheaper for one of the parts involved in a bargain to resort to violent methods than to seek a contract-based solution. All costs considered, included any reputation loss and ethical issues. And when that's the case, there will be aggression.
I'm not saying they ignore this fact. They both discuss it when they introduce the problem of social order. But they both rush to their conclusions that a contract based society is more ethical (Rothbard) or efficient (Friedman), and therefore the way of the future, and start to describe what they see as the ideal version of it.
The problem is that their notions of ethics and efficiency when applied to society as a whole are nonsensical. None of them seem to fully realize that insofar as contractual costs are higher than ammunition costs within certain contexts, political violence will be used as means to achieve ends by those who are able to mobilize enough of it.
Because what govern the decisions people take are the real world technological and institutional environments they are embedded in, and the concrete costs these frameworks impose on their decisions. A good book on this subject is Knowledge and Decisions, by Thomas Sowell, a scholar whose economics is more grounded on reality than ideals.
Friedman and Rothbard may look dissimilar in the surface of their language, but they are actually very similar in their thought process, and very close to other popular fantasyland social scientists that existed in the past.
This is an excellent point. In other words, a failure to pursue a serious "economics" of the social order as distinct from an economic analysis of market transactions. This suggestion was made by Lionel Robbins who was influenced by Mises:
"There is an important sense in which the subject-matter of political science can be conceived to come within the scope of our definition of the economic. Systems of government, property relationships, and the like, can be conceived as the result of choice. It is desirable that this conception should be further explored on lines analogous to better known analysis." (An Essay on the Nature & Significance of Economic Science)
This quote is taken from the second edition, published in 1935. I'm not sure whether it appeared in the first edition of 1932. The clear suggestion is to treat the choices people make regarding social relations by the same analytical method we use to treat the choices they make in market transactions.
As late as 1962, Mises was aware that while there existed an elaborated body of formal analysis that applied to market phenomena, the same type of analysis had yet to be applied to political phenomena.
"Economics or catallactics, the only branch of the theoretical sciences of human action that has up to now been elaborated...."
"It would be preposterous to assert apodictically that science will never succeed in developing a praxeological aprioristic doctrine of political organization that would place a theoretical science by the side of the purely historical discipline of political science. All we can say today is that no living man knows how such a science could be constructed."
(both passages from The Ultimate Foundation of Economic Science, 1962)
Thus, it was clear to Mises that what was lacking was an economic (i.e., a praxeological) approach to political and interpersonal social relationships, that would extend the kind of analysis that up to then, had only been applied to market phenomena.
"It would be preposterous to assert apodictically that science will never succeed in developing a praxeological aprioristic doctrine of political organization..." (Mises, UF, p.98)
I believe the reason for this epistemological problem with political science lies in accounting.
Purely economic exchanges are somewhat easy to measure and assess with objectivity. It usually boils down to "somebody gave away A in exchange for B (and, of course, his counterpart gave away B in exchange for A)"
So the science of economics can readily identify many patterns on the data that can be collected through such observations. Say, for instance, the law of diminishing returns or the dynamical relationships between supply and demand. These and many other market patterns are percetible and explainable because we can observe and measure many of the variables involved in their occurence, like prices, costs, stocks, production and transaction volumes and so on. Of course many strategical variables remain concealed and introduce uncertainty, but still much of the action takes place on the open field, therefore allowing for a class of general forecasts which bear some similarities to the predictions of natural sciences (sometimes these similarites are greately overrated, though).
Political bargains are harder to quantify. They are most of the time implicit bargains that do not take place, because one of the "traders" doesn't want to play chicken and get hurt. But nonetheless his behavior is shaped by the likely outcome he perceives from such a situation taking place.
The chief use of power is the (partial) canceling out of other, potentially threatening, sources of power. This cancelling might take place by domination or destruction, which would allow for objective measures with hard data, but most of the time it takes place by insinuation and demonstration and readiness and other forms of non-transactions hard to evaluate.
This kind of situation is very hard to measure since there is little direct data to be observed. Most of the action is not happening. Most of it consists of self-defeating profecies. Anticipation is the name of the game.
Of course the political strategies can be inferred from reveled decisions taken and not taken by each player, but such analysis cannot be carry on too far without getting too complex.
And you cannot generally engage in large scale political accounting because most of the consequential information is private.
And without objective accounting procedures it is difficult to agree on what's really going on, much less on what are the scientific reasons and explanations for what we're not even sure to be happening.
That's why political science is a much more vague and "unscientific" than economics.