I am almost a Rothbardian, but the only thing, that I can think of that, makes me still question whether a society would function without a state (monopololized, centralized, coercively-funded legal system) is how a decentralized legal system would work.
In other words, what would a private defense firm do if one of its patrons was found guilty of aggression by a private court? Why would it accept the verdict of that court and not present that matter to another private court? If the (first) court didn't get the private defense firm's approval, the firm would defend him against any attempted punishment.
That is why both parties must agree to accept the verdict of the court before this verdict is pronounced.
It's been used in Iraq lately in the "Anbar Awakening" where people have gone to sheiks to settle disputes instead of going to the Americans or the state courts.
The fallacies of intellectual communism, a compilation - On the nature of power
How would that work in all situations?
It may not, but those who do not abide by a rational decision find themselves ostracized.
Richard Chambers: How would that work in all situations?
The same way it works in any situation.
Larger firms will probably be stock corporations with a large amount of free-floating capital, so it's unlikely they will act at the will of a single man or group of men.
private courts would rely entirely on their reputation for business. if there is a demand for impartial judges, the market will supply them.
Say a man is accused of being the murderer by a murdered man's insurance company. What if he's guilty and doesn't want to go to any court? Would his own insurance company have said that they wouln't accept him if he doesn't agree to go to court with his accuser(s)? What would keep insurance companies from protecting accused individuals? Threatened boycotts by consumers?
Richard Chambers: Say a man is accused of being the murderer by a murdered man's insurance company. What if he's guilty and doesn't want to go to any court? Would his own insurance company have said that they wouln't accept him if he doesn't agree to go to court with his accuser(s)? What would keep insurance companies from protecting accused individuals?
Say a man is accused of being the murderer by a murdered man's insurance company. What if he's guilty and doesn't want to go to any court? Would his own insurance company have said that they wouln't accept him if he doesn't agree to go to court with his accuser(s)? What would keep insurance companies from protecting accused individuals?
Because running from accusation is not insurable behavior, that murderer better know how to run fast.
Why not?
Eduard - Gabriel Munteanu: Larger firms will probably be stock corporations with a large amount of free-floating capital, so it's unlikely they will act at the will of a single man or group of men.
Suppose a large industrial corporation is convicted by a court of for a wrongful death. The CEO could plead innocence and call the judge a liar. The plaintiffs would foresee this and go to an arbiter that is renowned for its honesty and intelligence.
Still, the court does not have any firepower. The corporation can just continue killing people. Right?
Not so fast. Would you continue doing business with a corporation that was convicted of causing the death of a customer and refused to pay punitive damages? Probably not. The corporation would lose business pretty fast (and besides that, the CEO risks getting lynched).
"As long as there are sovereign nations possessing great power, war is inevitable."
Please don't misinterpret that last remark as advocating vigilante justice (is/ought fallacy). I'm not saying that he should be lynched; I'm just saying that could happen.
What distnguished vigilante justice from any other kind? A trial?
Richard Chambers: What distnguished vigilante justice from any other kind? A trial?
Of course. A trial, with legal protections for the accused (no secret evidence, a fair hearing, a jury of his peers, no cruel or unusual punishment, etc. etc. etc.).
Richard Chambers:I am almost a Rothbardian, but the only thing, that I can think of that, makes me still question whether a society would function without a state (monopololized, centralized, coercively-funded legal system) is how a decentralized legal system would work.
How did it work before the state monopoly? Every tribe/city/community could have its own laws and traditions.
I assume the current system would be replaced by private mediators who already exist. Personal defense companies of the parties would also try to settle the issues between themselves.
If I hear not allowed much oftener; said Sam, I'm going to get angry.
J.R.R.Tolkien, The Lord of the Rings
You're just not advocating vigilante justice, right? A right to a trial would be a "positive" right.
Would it be correct to say that the situation I have described would have no remedy under anarchy, but the situation is very, very unlikely to occur under anarchy?
This post was addressed to ama gi.
For some reason the quotes aren't showing up in my posts.
Ethics of Liberty may have a chapter addressing this, and this might be the chapter which does ( http://mises.org/rothbard/ethics/thirteen.asp ). But, if I'm wrong its because I haven't touched this book in months. Hope it helps, but if not click on table of contents and search around.
Luis Buenaventura: Ethics of Liberty may have a chapter addressing this, and this might be the chapter which does ( http://mises.org/rothbard/ethics/thirteen.asp ). But, if I'm wrong its because I haven't touched this book in months. Hope it helps, but if not click on table of contents and search around.
It does address the issue of vigilante justice, but it doesn't address my original question.
Richard Chambers: Would it be correct to say that the situation I have described would have no remedy under anarchy, but the situation is very, very unlikely to occur under anarchy?
Richard Chambers: Richard Chambers: Would it be correct to say that the situation I have described would have no remedy under anarchy, but the situation is very, very unlikely to occur under anarchy? Right?
Right.
Absent the confiscatory model of funding for the court system, people will realize the cost of adjuticatory services. Which means that people will have very little incentive to do anything other than agree to abide by an arbitor's decision, and then to hold to their word. An appeal increases the cost of the adjudication process. Further appeals each increases the cost even more. And eventually, the appellant just looks like a recalcitrant loser; a person who is obviously in the wrong and is simply unwilling to face the music. Appellate courts will become more and more hesitant to accept a case wherein the potential appellant has been ruled against over and over, and courts will become less willing to submit their findings to appeal.
Note that this system is not presented as a panacaea or a recipe for utopia. There is no guarantee of justice in any system. But we who believe in a free market justice system recognize that free choice at least minimizes the problems created by a monopoly system, and is capable of resolving any new issues that may crop up. The resolution of disputes is, after all, the reason for a person to become an adjudicator or arbitor in the first place, and the market in general is a problem-solving force.
Pro Christo et Libertate integre!
MacFall:Right. Absent the confiscatory model of funding for the court system, people will realize the cost of adjuticatory services. Which means that people will have very little incentive to do anything other than agree to abide by an arbitor's decision, and then to hold to their word. An appeal increases the cost of the adjudication process. Further appeals each increases the cost even more.
Absent the confiscatory model of funding for the court system, people will realize the cost of adjuticatory services. Which means that people will have very little incentive to do anything other than agree to abide by an arbitor's decision, and then to hold to their word. An appeal increases the cost of the adjudication process. Further appeals each increases the cost even more.
Note that this system is not presented as a panacaea or a recipe for utopia. There is no guarantee of justice in any system. But we who believe in a free market justice system recognize that free choice at least minimizes the problems created by a monopoly system, and is capable of resolving any new issues that may crop up.
Richard Chambers: Why wouldn't the defendent's insurance company pay for any court services?
Why wouldn't the defendent's insurance company pay for any court services?
There's no saying they wouldn't. But they would probably stipulate a maximum level of appeal in their TOS agreement with the insurant. So suppose they allow the insurant one appeal. The case goes to appeal; the court finds against the insurant. The insurant insists upon a second appeal. The insurer says, "Go ahead; you're on your own". The insurer will not enforce the ruling of the secondary appellate court, because that's not what they are paid to do. Perhaps there will be special circumstances under which they would enforce a secondary appellate ruling, or even a tertiary one.
But with each level of appeal their insurant loses more of his credibility, to the point where the insurer cannot afford to side with their customer any longer lest they be regarded as an outlaw protector, and be driven out of the market. So if the appellant wishes for an appeal beyond that guaranteed by the insurer, he will have to go to a reputable enforcement agency, who will then enforce the decision of the appellate court. Of course, by this time the appellant will have been found in the wrong by multiple previous rulings, so they may not take his case in the first place, nor may any court accept the case either.
So it is, as I said, in the interest of both parties to the conflict to agree to the arbitor's decision, and then to honor that agreement.
Why would the defendent's insurance company agree to a trial? Market pressure?
Well, they might not agree to a trial. They might have interlocking agreements with other companies, as today's insurers do. This might include the submission of the case to a third party, and even the right of either insurant to appeal the case (though most likely not).
Or they might in fact guarantee a trial to their customers in certain cases, or in all cases. An insurance customer who wants a jury trial in the case of their being accused of a crime can buy insurance from a company that guarantees a jury. Another may not want to be bothered by the process at all, and simply insist on third-party adjudication wherein they do not participate.
The point is that in a free market for dispute resolution, there will be dozens of systems competing for customers. The most efficient and fairest will rise to the top, and their model will be the most widely implemented. But there will also be niche markets for romantics who want a judge with a big curly wig, or religionists who want the model of justice described in their scriptures, or even people who just want someone to oversee a duel of some kind. The only limitation is that nobody would be able to impose their own notion of what best constitutes due process on anyone else. And it is not at all unreasonable to assume that conflicting parties would quickly find and agree to a mutually-acceptable process from the outset.
MacFall: Richard Chambers: Why wouldn't the defendent's insurance company pay for any court services? There's no saying they wouldn't. But they would probably stipulate a maximum level of appeal in their TOS agreement with the insurant. So suppose they allow the insurant one appeal. The case goes to appeal; the court finds against the insurant. The insurant insists upon a second appeal. The insurer says, "Go ahead; you're on your own". The insurer will not enforce the ruling of the secondary appellate court, because that's not what they are paid to do. Perhaps there will be special circumstances under which they would enforce a secondary appellate ruling, or even a tertiary one. But with each level of appeal their insurant loses more of his credibility, to the point where the insurer cannot afford to side with their customer any longer lest they be regarded as an outlaw protector, and be driven out of the market. So if the appellant wishes for an appeal beyond that guaranteed by the insurer, he will have to go to a reputable enforcement agency, who will then enforce the decision of the appellate court. Of course, by this time the appellant will have been found in the wrong by multiple previous rulings, so they may not take his case in the first place, nor may any court accept the case either. So it is, as I said, in the interest of both parties to the conflict to agree to the arbitor's decision, and then to honor that agreement. Why would the defendent's insurance company agree to a trial? Market pressure? Well, they might not agree to a trial. They might have interlocking agreements with other companies, as today's insurers do. This might include the submission of the case to a third party, and even the right of either insurant to appeal the case (though most likely not). Or they might in fact guarantee a trial to their customers in certain cases, or in all cases. An insurance customer who wants a jury trial in the case of their being accused of a crime can buy insurance from a company that guarantees a jury. Another may not want to be bothered by the process at all, and simply insist on third-party adjudication wherein they do not participate. The point is that in a free market for dispute resolution, there will be dozens of systems competing for customers. The most efficient and fairest will rise to the top, and their model will be the most widely implemented. But there will also be niche markets for romantics who want a judge with a big curly wig, or religionists who want the model of justice described in their scriptures, or even people who just want someone to oversee a duel of some kind. The only limitation is that nobody would be able to impose their own notion of what best constitutes due process on anyone else. And it is not at all unreasonable to assume that conflicting parties would quickly find and agree to a mutually-acceptable process from the outset.
If the insurer doesn't pay for a trial, why will they not still pay for his protection?
Richard Chambers: How is it in the interest of both parties in a murder trial to abide by the jury's decision?
How is it in the interest of both parties in a murder trial to abide by the jury's decision?
Well first of all, there's no reason to assume a jury. The jury system is not necessarily the best, fairest system of jurisprudence. However, whatever system they use, it is in the interest of the guilty to abide by the arbitor's decision. If they don't, they essentially declare themselves to be outlaws, absolutely and forever. At best, they become exiles. At worst, they spend the rest of their lives running from bounty hunters. However, if they choose to serve their sentence peacefully, they are at least still within the protection of the legal system, to the extent that they cannot be harmed or expropriated beyond their sentence.
If they are innocent, they have the chance to overturn the court's decision - but only so long as they keep the peace between themselves, their accuser, and the third party.
So the only type of person who has no incentive to respect the decisions of a free market court, is someone who has nothing left to lose. A serial criminal who, for example, everyone knows is guilty, cannot ever be accepted into civil society again, and who therefore has absolutely no intention to accept any penalty for their crimes. Such a person is in the same scenario as the recalcitrant guilty party. They must leave civilization forever, because while among other people, their lives and property are forfeit.
Would you pay for the protection of someone you know to be a criminal? If so, then I must ask why on Earth you would. If not, ask yourself "why not", and you'll have your answer.
MacFall: Richard Chambers: How is it in the interest of both parties in a murder trial to abide by the jury's decision? Well first of all, there's no reason to assume a jury. The jury system is not necessarily the best, fairest system of jurisprudence. However, whatever system they use, it is in the interest of the guilty to abide by the arbitor's decision. If they don't, they essentially declare themselves to be outlaws, absolutely and forever. At best, they become exiles. At worst, they spend the rest of their lives running from bounty hunters. However, if they choose to serve their sentence peacefully, they are at least still within the protection of the legal system, to the extent that they cannot be harmed or expropriated beyond their sentence. If they are innocent, they have the chance to overturn the court's decision - but only so long as they keep the peace between themselves, their accuser, and the third party. So the only type of person who has no incentive to respect the decisions of a free market court, is someone who has nothing left to lose. A serial criminal who, for example, everyone knows is guilty, cannot ever be accepted into civil society again, and who therefore has absolutely no intention to accept any penalty for their crimes. Such a person is in the same scenario as the recalcitrant guilty party. They must leave civilization forever, because while among other people, their lives and property are forfeit. If the insurer doesn't pay for a trial, why will they not still pay for his protection? Would you pay for the protection of someone you know to be a criminal? If so, then I must ask why on Earth you would. If not, ask yourself "why not", and you'll have your answer.
Just so you know where I'm coming from, I've become a Rothbardian, but I still want to see if there aren't any holes I can find in that viewpoint.
You all seem to be taking a myopic view of the legal system. If we are talking about criminal law (i.e., dealing with whether aggression is justified, and how to punish it if it is not) and private defense firms then we can ground this discussion in real world examples: Organized crime syndicates (think of the mafia) are for-profit defense associations, each with its own "decentralized legal system." They do not voluntarily abide by other legal systems, and in practice use their own means to corrupt and undermine the more authoritative (government) ones. Take away the authority that a government legal system enjoys and your absolute best-case socioety would look more degenerate than Italy: Private rights and property would be trampled with impunity by the more ascendant criminal syndicates.
So try again to articulate a decentralized legal system that can in principle withstand these abuses?
Organized crime syndicates would be utterly powerless if the government didn't create vast black markets for them to operate in by outlawing peaceful activities. Without the state, they couldn't exist.
Nice try, though.
MacFall: Organized crime syndicates would be utterly powerless if the government didn't create vast black markets for them to operate in by outlawing peaceful activities. Without the state, they couldn't exist.
Sheesh, this "The state is the root of all evil" rejoinder is getting tired. There are evil people independent of any state, and evil people will organize to try to secure unfair advantages by violating the rights of others even in the absence of formal law.
dbooksta: MacFall: Organized crime syndicates would be utterly powerless if the government didn't create vast black markets for them to operate in by outlawing peaceful activities. Without the state, they couldn't exist. Sheesh, this "The state is the root of all evil" rejoinder is getting tired. There are evil people independent of any state, and evil people will organize to try to secure unfair advantages by violating the rights of others even in the absence of formal law.
What exactly would this "crime syndicate" do? How would they fund their operations? How would they constantly wage war with defense companies who have optimized their business models to handle situations just like these as effeciently as possible. How are they going to buy food and water when they have no source of income? every criminal gang in history, from the bloods to the mafia made its money by operating in black markets and selling drugs, alcohol, prostitutes, etc. What happens when all of these items are provided at a higher quality and a cheaper price by non-"criminal" organizations? This is the same question that Mac proposed which you tried to dodge. How are they going to make any type of business transaction when they are ostracized for being a violent gang?
Looks like Randall Holcombe expounded my core objection in his 2004 essay, "Government: Unnecessary but Inevitable."
To be fair, Leeson and Stringham offered a strong critique of Holcombe's arguments. Holcombe supposedly responded to the critique but I can't find that online yet.
Yes. Nobody is saying that the state is the root of all evil - but it is the institution where evil people go to prosper. In its absence, evil people face the choice of either overcoming their antisocial natures and becoming productive members of society, or they become hunted outcasts, and as long as people remain vigilant they can never reach sufficient numbers or form organization sufficient to obtain any significant level of power. The vast majority of people are not violent or parasitic. More than 90% of "crime" is criminal only because governments say it is, according to prison populations worldwide.
So we're talking about a fraction of a fraction of people who even have a tendency to commit acts of violence against others. And how many of those would be dissuaded in a society where people are free to arm themselves against criminals? How many more would find it not worthwhile to pursue criminal activities when wealth is so easily available through economic means?
That leaves a fraction of a fraction of a fraction of people - the truly pathological cases, kleptomaniacs, sadists and psychopaths, who would constitute the criminal element. At that point, the uselessness of having a state to deal with those few parasites should become brilliantly clear.
No, read Holcombe: In the absence of a state, evil people become bandits, which in due course are supplanted by mobs, and finally governments -- the least destructive and most stable form of coercive order.
BTW, I found the Leeson & Stringham critique and Holcombe's rebuttal here.
dbooksta:So try again to articulate a decentralized legal system that can in principle withstand these abuses?
It doesn't necessarily have to be private in order to be decentralized. This may seem like a contradiction at first, but only if you equate "law" with legislation - and thus the ability to control.
I'd thoroughly recommend Leoni's Freedom and the Law. A more thorough discussion of this topic is hard to find. He argues that historically laws were not "made" by law makers and "imposed" upon the citizens but arose naturally and common law judges merely discovered and gave effect to those laws that were already known and resepected by people as the law of the land. Leoni's argument is that the "law" under the common law system was not a set of rules designed by central controllers, but rather a set of rules that naturally formed in the same way that a language might form - and just as grammarians would be powerless to try to prevent a language from diverging off on one path so common law judges were incapable of preventing the law of the land from doing what it would as a result of social changes etc.
One of the strengths of the Common Law system as opposed to our current legislative system, despite the fact that the common law was overseen by "the state", was that the Common Law system was not under the control of the administrative branch of government which was doing all the taxing (and which was necessary to finance the maintenance of the courts)... hence a true separation of powers existed where the tax authority might check the powers of the Judiciary and vice versa. Additionally, if one didn't like the current situation it was impossible to simply write a rule to change it - no such dictatorial powers existed except (in theory but typically not in practice) where the actual monarch was concerned. Rather, if you had a grievance you had to take it before a common law judge and argue that he should rule in your favour, in accordance with existing legal principle (already recognized by other citizens and judges).
Leoni's argument is fairly subtle and I'm hardly doing it justice here. I seem to remember an article in the Dailies where Rothbard reviewed his book a couple of weeks back. Leoni managed to persuade both Mises and Hayek to change their views in this regard, so is well worth the read. I wrote an introductory blog on the subject to try to get people interested in Leoni's work, since I think he presents an important argument that most free market economists overlook and which is fundamental to everything else upong which their arguments rest.
The Common Law is a realistic alternative to our present day centrally controlled legal system - indeed all that would be required to implement it in the English speaking world would be to gradually repeal most of the legislation that has been enacted in the last 150 years and you'd find the Common Law still sitting there under the surface, right where it's always been. We already have the courts and the judges in place, and they're already trained to do the job.
Holcombe is wrong. Bandits would not have a chance to become a mob in a free market. And even if they did, a mob consisting of 0.00something percent of everyone would not be able to enslave everyone, so long as everyone is free to oppose them. The only thing that could stop everyone else from opposing the potential mob would be a pre-existing state.
He seems to be rehashing the theory of the "immaculate conception of the state" originally presented by Nozick. That argument has been roundly refuted many times over.
http://www.mises.org/rothbard/newlibertywhole.asp#p215
Rothbard goes into detail on this.