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What Law Is

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Clayton Posted: Tue, Jan 19 2010 12:54 AM

Law

What is law? Frederic Bastiat, in his treatise The Law, defines law as the collective use of force. As much as I love Bastiat’s treatise, I think his definition is not sufficiently analytical. It is certainly the case that the law plays a role in the collective use of force but the law is something more basic than this. We can begin by looking at law as it is today. The website for the Oregon courts has an excellent summary[1] of modern law and courts. I will quote it at length:

Throughout history, people have had disputes and have needed some means to settle their disputes. As civil societies develop, they need an orderly system of conflict resolution. One system that developed in "western" cultures is the "law court" or court of law. In England, those early law courts developed a "body of law" called the common law, which defined both the rights of the people and the government and the duties people owe each other and their government. There was no legislature yet to adopt statutes.

English settlers brought this common law with them to the American Colonies, where it developed into the American common law. Over time, state and federal constitutions and statutes have superseded much American common law. Courts continue to look to the common law for guidance if no statute defines the rights and duties in a particular case.

As in other states, courts in Oregon are both rooted in this common law tradition and governed by a state constitution and statutes that supersede the common law. Oregon's statutes are organized by subject matter in a set of books called Oregon Revised Statutes (ORS).

As in other states, Oregon law has two broad branches: civil law and criminal law, each with origins in the common law and each now governed primarily by statute.

Civil law includes statutes and "case law" that define or interpret individuals' and organizations' private rights in their relationships and disputes that involve property, contracts, personal injury, family relationships, tax, or government rules and regulations.

Because Oregon does not have laws that define every private right, courts rely on the "court-made" law called "common law" to resolve some disputes.

Criminal law is the body of laws that define a person's basic rights in and duties to preserve a peaceful and safe society. A person who violates the duties to preserve social peace and safety may be guilty of a crime "against the people" and so face jail, prison, or some other punishment. In addition, if the lawbreaker's act injured another (the "victim"), the victim may have a right to a private, civil law claim for damages.

Modern criminal law is almost all statutory. Criminal cases require courts to decide whether and how certain criminal laws apply and whether those laws as applied violate the state or federal constitution.

The legislature can change the common law by enacting a statute, so long as the governor does not veto the new law. The courts must follow that law so long as it does not conflict with the state or federal constitution. However, if no statute "governs" the issue in a particular case, the court may look to the common law rules for guidance.

When an appellate court must interpret statutory or common law in order to decide a case, the court's decision becomes "precedent" for deciding future cases with similar issues.

A precedent that interprets a statute makes that interpretation part of the statute.

A precedent that applies the common law to a new situation becomes part of the common law.

Although courts usually "follow precedent," courts may modify the earlier common law rules in some circumstances.

The legislature enacts other statutes that affect courts as well. The legislature determines the budget for the state courts and defines the amounts they charge for filing fees and other court fees. The legislature also defines how state courts collect fines and distribute the money collected.

This summary contains all the essential elements of the modern law. We have a common law tradition which forms the foundation on which the law rests. Statutes override the common law to force the courts to operate in accord with the State’s interests. Interpretation of the common law or statutory law forms new legal precedent. New precedents are folded into the common law and statutory law to extend the body of law.

Hans Hoppe, in a recent lecture[2], defines the State in the following manner:

Let me begin with the definition of a state. What must an agent be able to do to qualify as a state? This agent must be able to insist that all conflicts among the inhabitants of a given territory be brought to him for ultimate decision-making or be subject to his final review. In particular, this agent must be able to insist that all conflicts involving himself be adjudicated by him or his agent. And, implied in the power to exclude all others from acting as ultimate judge, as the second defining characteristic of a state, is the agent's power to tax: to unilaterally determine the price that justice seekers must pay for his services.

Based on this definition of a state, it is easy to understand why a desire to control a state might exist. For whoever is a monopolist of final arbitration within a given territory can make laws. And he who can legislate can also tax. Surely, this is an enviable position.

Hoppe goes on to describe the alliance between intellectuals, as social opinion-molders, and the State. The State, Hoppe says, subsidizes the production of intellectual goods in exchange for intellectual loyalty to the State and production of philosophical justifications and rationalizations for the State’s existence. The same line of reasoning can be applied to the State’s monopolization of legal services. Dispute-resolution is surely older than the organized State. At some point in human history, the State took an interest in monopolizing the courts. The fundamental exchange is the same as that described by Hoppe regarding the monopolization of intellectuals. The State grants its preferred jurists a monopoly on the production of dispute-resolution services in exchange for the courts’ loyalty in disputes involving the State itself. The state guards its monopoly on dispute-resolution as jealously as it guards its monopoly on the use of force or its monopoly on the coercive collection of revenues.

Murray Rothbard, Hans Hoppe and other notable anarchist philosophers approach the problem of law from the point of view of natural rights. They begin with a Lockean approach to infer inalienable, unassailable rights from the human need to survive. David Friedman, an “anarcho-capitalist”, takes a different, value-free approach to law. I do not think either approach is a satisfactory intellectual foundation for law.

I will put forward a view of law which is a hybrid of the positive law view of Friedman and the normative law views of Hoppe, Rothbard and others. In a rebuttal to Hans Hoppe’s argumentation ethics[3], David Friedman says the following:

… consider an ethic according to which there are no rights at all; everyone is morally free to coerce everyone else whenever he can get away with it, but many people succeed in defending themselves well enough so that they control much of their own [property]. According to their ethic they have no right to self ownership, nor to anything else, but they have physical control over themselves... One might plausibly claim that this comes close to describing the world we now live in. [Emphasis added]

I think that Friedman’s assessment of the state of affairs, while value-free, is accurate. The value-free nature of Friedman’s assessment is not its defining virtue. Rather, it is its congruency with the state of affairs we observe in the real world which makes this assessment valuable.

This leads us back to the question of what the law is. In a world where amoral coercion is consistent with physical reality, what is law, really? Let’s start from the definition used by the Oregon courts, “Throughout history, people have had disputes and have needed some means to settle their disputes. As civil societies develop, they need an orderly system of conflict resolution.” Law, that is, the court system, is an orderly system for the resolution of conflicts.

What are conflicts and how do they arise? Hans Hoppe says[4],

Alone on his island, Robinson Crusoe can do whatever he pleases. For him, the question concerning rules of orderly human conduct — social cooperation — simply does not arise. This question can only arise once a second person, Friday, arrives on the island. Yet even then, the question remains largely irrelevant so long as no scarcity exists.

Suppose the island is the Garden of Eden; all external goods are available in superabundance. They are "free goods," just as the air that we breathe is normally a "free" good. Whatever Crusoe does with these goods, his actions have no repercussions — neither with respect to his own future supply of such goods nor regarding the present or future supply of the same goods for Friday (and vice versa). Hence, it is impossible for there ever to be a conflict between Crusoe and Friday concerning the use of such goods. A conflict is only possible if goods are scarce. Only then will the need arise to formulate rules that make orderly, conflict-free social cooperation possible.

Hoppe’s argument suggests that there are two conditions for the existence of interpersonal conflict: more than one person and scarcity. There seems to be many forms of conflict which do not originate from scarcity, such as debates over metaphysics or religion, which may even go to fists. However, law is concerned only with real (physical) conflicts. Until a verbal argument goes to fists, it is not a real conflict. Law, in a private law society, is not concerned with resolving moral or metaphysical disputes[5].

As an example of a real dispute, consider the case of a traffic accident. When one person strikes another person’s vehicle with his own vehicle, there arises a dispute. This dispute has arisen because property damage has occurred. The question that is to be settled in the dispute is who was at fault, and this question is typically answered in the case of moving traffic accidents by determining who had the right-of-way, that is, who was in the right. Who had the right to proceed unhindered? Determining who was in the right establishes whether the property damage will be borne by the owner of the damaged property or will be transferred in some proportion to the offending party.

Real conflicts arise from scarcity, that is, property conflicts. So where do human rights fit into this picture? Murray Rothbard saysDevil of human rights,

… there are two senses in which property rights are identical with human rights: one, that property can only accrue to humans, so that their rights to property are rights that belong to human beings; and two, that the person's right to his own body, his personal liberty, is a property right in his own person as well as a "human right."

In Rothbard’s view, only humans have rights and all rights are property rights. All real conflict is conflict over property because the body itself may be thought of as property.

This leads to the question, what is property? We can begin with the concept of property in the human person then move on to personal property and the emergence of property in land as a guide to understanding the origins of the human conception of property. This is the Lockean approach used by Hoppe, Rothbard and others. We can look to dictionary or legal definitions of property but none of these definitions touch the heart of the issue as it regards a theory of the private production of law: what evolutionary purpose does property serve? Why did property arise in the first place?

Property serves the purpose of conflict-avoidance by acting as a generally recognized heuristic allocating physical objects to the exclusive control of one or another individual.

If you pick up my camera from a seat at the airport, I will probably only need to say, “excuse me, that’s mine, can I have it back?” to settle the matter of whether you may use it. There are many conflict-avoidance schemes in human affairs, from religious rituals to social customs. When someone says, “Pardon me” after bumping into you in a hallway, the odds of a physical conflict arising as a result of the mishap are lower than they otherwise would be. From the standpoint of biology, it should be easy to see how persons who engage in conflict-avoidance strategies have a reproductive advantage over those who do not.

Property serves to avoid conflicts by allocating scarce physical objects to the exclusive use of a single decision-maker. But what is property? I will provide a working definition of property but I will not attempt to justify my definition here. Stephan Kinsella, in an article discussing the difference between intellectual property and radio waves, says the following:

… every scarce resource–things that can be contested; rivalrous things; resources that have exclusive use, so that use by me excludes use by you, and so on–is assigned an owner; that owner is the person who first appropriated or used the property in an embordering way–that is as an owner. It’s the first person to erect publicly visible boundaries that others can respect and see; he has a better claim to the resource than any latecomer.

Any property must be physical because non-physical objects are not scarce (real conflicts cannot arise). Property is not necessarily tangible. In other words, you can own physical matter (dirt, water, rocks, paper, etc.) or energy (for example, electrical energy) but you cannot own ideas or patterns, such as a number or an image. Property is the exclusive claim to the use and disposal of a particular, scarce, physical object, defined in space and time. You cannot own a general class of physical objects, such as, “I own all ceramic dinner plates.” You may happen to own all members of a class of physical objects, such as, “I own all of Rembrandt’s self-portraits”, but you cannot own them as a class qua class, that is, you cannot claim, “Because that is a self-portrait of Rembrandt, I own it.” Because classes are ideas and ideas are not scarce, so-called “intellectual property” is not property at all. Intellectual property is an invalid claim of ownership of a class of physical objects, for example, all objects bearing a certain mark or conforming to a certain pattern.

How do physical objects become property? It seems natural to someone who has been surrounded by property all his life to assume that almost everything is and ought to be owned by somebody. Who owns the moon? Who owns Mars? There is a slice of the Antarctic continent, called Marie Byrd Land, which is not claimed by any sovereign nation. Who owns it? These questions open up the larger question of how any physical thing came to be owned in the first place. I can give no good reason why I have rights to exclusive use of some portion of the Moon or a portion of Marie Byrd Land. So, no portion of the moon or Marie Byrd Land is my property.

Property becomes owned through original appropriation. Original appropriation is the rule of first use: the first to use an otherwise unowned resource thereby becomes its rightful owner. If I am wandering through unowned wilderness (say, a thousand years ago when much of the Earth’s surface was unowned wilderness) and I pluck an apple from a wild apple tree, the apple becomes mine because I am using it and I am the first to put it to use. It is clear that use of unowned resources constitutes an improvement of social welfare since no one is hurt by my consuming the apple yet I am helped thereby. Since physical objects exist in a context of space and time adjacent to other physical objects, they are entangled, that is, how I use this physical object may affect some other physical object to which I do not have a property claim. Defining what constitutes valid or justifiable uses of physical resources is part of the problem that law solves.

Once owned, property can be exchanged with other persons. When people exchange property voluntarily, we know that human welfare is being improved by virtue of the exchange taking place. Voluntary exchange and original appropriation result in conflict-free improvements in the state of affairs. But property or any other conflict-avoidance strategy is imperfect because it is impossible to foresee the future or divine all possible consequences of following a certain conflict-avoidance strategy. No rule can, in all cases, prevent conflicts from ever arising. Hence, conflicts are inevitable.

Property conflicts arise as a result of unilateral changes of property boundaries. The voluntary redrawing of boundary lines obviously results in an improvement of the human condition. But since I can always be materially better off by unilaterally redrawing the boundaries of property to give myself more at the expense of others, I am motivated to do so. Real conflict results when individuals act according to the incentive to unilaterally redraw property lines. The definition of real conflict is unilateral redrawing of property boundaries.

Conflicts also arise as a result of threats, even threats which are not malicious. Presenting risks to the lives and property of others is a threat of unilateral property line redrawing. The pugnacious bar brawler who starts waving his fist in someone’s face is also threatening unilateral redrawing of a property line. Threats are as actionable as completed acts of unilateral property line redrawing. Someone who drives recklessly increases risk of property damage to those around him, even if he did not in this instance lose control and cause actual property damage.

There are two possible ways to resolve real conflicts: martial contest or non-violent resolution of the dispute. In societies where duels are permitted, parties to a dispute may choose which route they would like to pursue to resolve the conflict. However, since martial contests are terribly risky and costly, there is a large incentive to avoid them. We can see in the animal kingdom the costliness of martial contests. When they occur within the same species they are almost always non-lethal. Alpha male behavior can likely be thought of as a conflict-avoidance scheme where most serious conflicts only occur with the alpha male instead of being all-against-all. Only a single contest is required to settle the matter of who will have the benefits of being the alpha male for long stretches of time.

It is safe to assume that parties to a legal dispute are primarily motivated by adversarial self-interest. The US legal system makes this presumption very explicit. Given that the parties to the dispute are only in court to avoid physical conflict, in a private law society, this is not a very strong assumption. But this assumption leads to the breakdown of both the natural law (Rothbardian) and positive law (Friedmanian) approach to anarchic or private law. Friedman presents the case that anarchic law leads to the best or most efficient outcome for society. That is, Friedman is arguing from the point of view of social justice or social welfare. But this approach assumes that the individual cares about social welfare. That is, by presenting his arguments for anarchist law in the frame of how it improves social welfare, Friedman is assuming that the reader – and by implication anyone who is trying to ascertain what the law is and ought to be – cares about social justice or social welfare. This may accurately describe the typical, liberal academic but those most affected by the question of what the law is – real participants in real legal disputes – are not likely to share the same proclivity for social justice wherever it conflicts with their own interests. Since law, in a private law society, is the production of voluntary, non-violent resolutions to real disputes, only a definition of law which is acceptable to adversarial, self-interested individuals will suffice.

Rothbard argues from the point of view of natural law, starting first from the physical fact of an inalienable will in the living body and reasoning in the Lockean fashion from this fact to property rights in the body and thence to the preconditions for the body’s continued existence: standing room, air to breath and liberty to appropriate unowned natural resources or to utilize the body to produce and exchange for vital necessities. Leaving aside the potential technical problems within the natural rights arguments, there is a greater deficiency vis-à-vis applying natural rights to law. In a legal dispute involving a clear aggressor and a clear victim, the aggressor has already exhibited a disregard for morality and human rights. The purse thief is hardly concerned with the fact that his actions are immoral or violate the rights of his victim. Hence, it is of no use to expound upon his violations of natural rights. As with Friedman’s approach, Rothbard’s approach fails because it is not applicable to real disputes. That is, Rothbard’s definition of law is not useful to real individuals involved in real conflicts.

So what is the law? Law is the alternative to violent conflict when conflict-avoidance strategies (such as property lines) have failed to avoid conflict. In terms of rights in property, law is the production of new, stipulated property-lines which resolve real conflicts without further violence.

This definition immediately raises the question of how disputes can be resolved between asymmetrically powerful parties. In modern law systems, the aggressor (accused) has an incentive to resolve the conflict with his victim by means of law because the state will immediately retaliate against the accused for failure to comply with a court trial. In other words, the state offers the options of non-violent dispute resolution or immediate, overwhelming retaliatory violence (appear in court or be arrested or possibly even killed for failure to comply). In a stateless society, it appears that an aggressor would have no incentive to seek non-violent resolution of a dispute with his victim. After all, an aggressor usually will not attack unless he reasonably believes he can get away with the attack in the first place. That is, he has already calculated that he can win a martial contest with the victim.

Therefore, the victim must be able to present a sufficient threat to the accused in order to motivate the aggressor to come to court. That is, both parties must have an incentive to seek a peaceful settlement of the matter. Law and security, then, are inseparable. You cannot have real rights without the capacity to present a real threat to aggressors who refuse peaceful settlement of disputes. In other words, if you steal my television, and I send you a notice saying, “You must appear in court regarding the matter of the theft of my television,” I must also be able to take forcible action in the event you refuse to settle the matter through non-violent means. Otherwise, you will simply ignore my summons.

So far, I have not mentioned the non-aggression principle. In the characterization of rights and law that I have presented so far, what is called the "non-aggression principle" follows from the simple fact that prior success in redrawing the boundaries of property does not constitute a valid verbal argument for the property lines remaining unchanged. If I steal your purse and you bring me to court, simply noting that I won the physical contest for your purse does not constitute a valid verbal argument for the purse remaining in my possession. It is, in fact, a circular argument. The point in contention is whether the outcome of that physical contest should remain unchanged. If I refuse to defend my actions or if I am unable to defend my actions in court (using reason, ethics and accepted principles of law), the ultimate recourse is a new martial contest. In other words, rejecting the non-aggression principle is no different than saying “I don’t care to settle this through non-violent means, let’s just settle this matter through martial contest.” Note that this argument is inspired by Hoppe’s argumentation ethics which is essentially a presuppositional approach to the non-aggression principle. However, I find Hoppe’s attempt to elevate the NAP to an axiom to be deficient because it is not useful to real parties to a real legal dispute, as noted above.

Stephan Kinsella follows what he terms an “estoppel approach” to argue that a party to a non-violent dispute must accept violence against himself in proportion to that which he has already used against his victim because he is “estopped” by his past actions, that is, he would be committing what Hoppe calls a “performative contradiction” to argue otherwise. This argument is deeply unsatisfying, not least because it is easy to wriggle out of Hoppe’s performative contradiction by accepting that one has acted as a hypocrite. So, no one would ever commit a crime worse than hypocrisy, which does not seem to me to be a very serious crime, if it is a crime at all. However, Kinsella’s approach falls on the same criterion that Rothbard’s, Friedman’s and Hoppe’s approaches fall – it is not useful to parties in a real legal dispute. One side need only reject the doctrine of estoppel[7], which is not a very large leap, since the doctrine is not even in use in modern law, as Kinsella himself admits.

This brings us to the issue of justifiable violence. We know that any violence which is accepted through a stipulated resolution reached through non-violent means (court) improves social welfare because the receiver of the violence preferred it to martial contest. The context in which the violence occurs – defense, pre-emptive attack or retaliation – is irrelevant to this point. All that matters is that the parties stipulate that one or both parties will be subjected to some level of violence as an alternative to martial contest. Even though the terms under which the dispute is resolved involve the use or justification of violence, we know that it is an improvement to social welfare because both parties preferred the stipulated agreement to martial contest.

Specifically, there are three categories of violence which I believe can be justified. Violence which may be justifiable could include defense from present attacks or threatened future attacks against person and property and retribution for past attacks. In other words, any violence which a party would accept as a non-violent resolution to a real dispute is justifiable violence. That is, all violence which is more acceptable than direct martial contest is valid violence.

First, there is defensive violence. Despite the significant focus by libertarians on violence used in self-defense, there is nothing inherent in self-defense that magically elevates it above all other forms of justifiable violence. A wider principle of non-violence would be the following: only interpersonal violence which corresponds to a valid property argument is justifiable. A valid property argument is one which has become a part of the canon of customary law. This means that individuals can expect that courts will rule that violence used in a manner consistent with customary law was justified and the only alternative to accepting justified violence will be martial contest. In other words, if you grab a woman’s purse and she strikes you and you sue her, customary law will likely rule that her use of violence to defend her property was justifiable and your use of violence to attempt to snatch her purse was not.

Defensive violence is used to stop a present attack. It is easy to see that defensive violence follows the principle “first, do no harm” since defensive violence causally reduces the use of violence. The person who uses violence to defend his person or property has demonstrably reduced the amount of violence in the world by halting or neutralizing the violence used by the aggressor. Defensive violence “nips in the bud” conflicts which arise from failure of property boundaries to avoid conflicts.

The second category of justifiable violence is pre-emptive attack. Pre-emptive attack is used in the neutralization of threatened future attacks. Note that a future attack need not be malicious to warrant pre-emptive attack. Actions which pose risks to others which they have not agreed to bear may justify pre-emptive attack. For example, setting up an M2 on a tripod in your front yard trained into my living room constitutes a threat (possibly not malicious) to my person and property which may justify the direct use of violence (for example, disabling or destroying the weapon).

The third category of justifiable violence is retaliation. However bad the retaliatory violence stipulated in the agreement may be (let’s say, a public whipping of 40 lashes), the punished party preferred that resolution to martial contest. Hence, we arrive at a conclusion which has evaded libertarian treatments of punishment: retributive violence can constitute an improvement in social welfare as evidenced by revealed preference. One corollary of this is that it is not likely that the death penalty would be justifiable retaliation since no one would ever accept a stipulated agreement in which they certainly die… better to take your chances with a martial contest in which you may only possibly die. The exception to this may be in clan societies where a family sacrifices one of its own for the sake of keeping the peace between the rival clan.

An open question is whether retaliation can be justified on the basis of past threats. Is it justifiable to fine someone for having endangered your person or property? If you set up the M2 in your front yard and then later take it down without incident, if I sue you, can I collect damages for the past threat, even though no real conflict (unilateral redrawing of property boundaries) occurred? Traffic tickets for speeding or DUI are an example of this sort of thing. Or, can threats only be neutralized “on the spot”, that is, with direct action? Perhaps it would turn out that I could justify taking a sledge hammer to the ammo feed on your M2 while it is pointed at my living room but I could not justify asking you to pay damages after the weapon has been removed.

What about stop signs private property? Can I be fined for driving past a stop sign on private property? The act of driving through the stop sign does not, in itself, constitute a violation of any of the property rights of the owner of the land on which the stop sign is situated since I am operating my property (the vehicle) as I see fit. However, a driver who was almost hit by virtue of my failure to observe the stop sign may have a case against me for endangering his life, at least, if retaliatory violence can be justified for past threats.

Since the court, in a private law society, is only selling its services as a mutually agreed-upon decision-maker, the rules which emerge governing what is justifiable violence will be those decisions which have in the past succeeded in settling disputes. That is, case law emerges out of the chaos of innumerable disputes and attempted resolutions of those disputes. Both the natural law and positive law approaches agree that a body of precedents will emerge from non-violent resolution of real conflicts in a private law society and that it is this body of decentralized dispute-resolution which becomes law per se. Rights and general laws emerge from the pattern of successful resolution of past real conflicts by non-violent means, just as common law developed in England and the US prior to the creation of legislatures.

Appendix on Voluntary Slavery

Rothbard uses the principle that promise does not constitute contract to argue that voluntary slavery is impossible, since the “voluntary” slave may at any future point renege on his promise to be a slave. Block counters that voluntary slavery ought to be valid since it is valuable, that is, there are cases where it would be worthwhile for someone to choose to enslave themselves to another person. In line with my analysis of law, the key issue is the slave’s capacity to present a threat to his master in order to bring his master to court. In the case of a victim of crime, the victim may hire a security agency to backstop the summons to court… failure to go to court can result in direct retaliation by the victim’s security agency. In the case of a slave, if a dispute arises, the slave may be unable to hire a security agency to backstop his case.

If the slave can hire a security agency to backstop his case, then the master has a reason to go to court. In this case, the slave has rights, because a property dispute (whether the slave must, indeed, remain a slave) is being argued verbally, that is, a non-violent resolution is being sought. It is doubtful that the slave will accept Block’s social welfare argument (society benefits if voluntary slave contracts are enforceable), that is, the slave will always prefer martial contest to accepting the principle of voluntary slavery, even if he has signed away his rights in a voluntary slavery contract.

It seems to me that voluntary slavery really can go either way in a private law society and it depends on the court and security services. Perhaps all respectable courts would reject the principle of voluntary slavery. In that case, it would be impossible to find a court that would uphold a voluntary slave contract and any slave that could obtain security services might be able to emancipate himself and even bring his would-be owner to court for kidnapping or false imprisonment. On the other hand, it could emerge that courts would find that voluntary slavery was sufficiently beneficial to society that voluntary slave contracts must be upheld. In this view, the slave would still retain rights (because he could take his master to court), but the rights held would only be the “right to non-violent dispute resolution”, since the courts would uphold the general abrogation of the slave’s human rights within the slave contract. In any case, the slave who can retain protection will always have the right to a trial. Consider a falsely enslaved individual – the slaveholder claims the individual is legitimately his property but the enslaved individual contests this. Surely, the enslaved individual has as much right to have the slaveholder’s claims reviewed by a court of law as anyone else. The key issue is his ability to present a sufficient threat (hire a defense agency willing to backstop his case) to the slaveholder to motivate him to go to court.

Appendix on False Accusations

False accusations are themselves a crime… [work in progress]

 

 

 

[1] http://courts.oregon.gov/OJD/aboutus/courtsintro/index.page?

2 http://www.lewrockwell.com/hoppe/hoppe18.html

3 http://www.daviddfriedman.com/Libertarian/On_Hoppe.html

4 http://mises.org/story/2265

5 I am taking this as a point of faith, Hoppe justifies this position in his writings [looking for cite…]

6 http://mises.org/story/2569

7 It could be argued that the doctrine of estoppel would become part of the body of law in a private law society but my observation is not with respect to the content of law (specific legal precedents or arguments), rather, it is an existential observation… if a party refuses to accept an arbitrator who applies estoppel, there can be no non-violent resolution of the dispute on the basis of an argument based on the principle of estoppel.

 

 



[5] I am taking this as a point of faith, Hoppe justifies this position in his writings [looking for cite…]

[7] It could be argued that the doctrine of estoppel would become part of the body of law in a private law society but my observation is not with respect to the content of law (specific legal precedents or arguments), rather, it is an existential observation… if a party refuses to accept an arbitrator who applies estoppel, there can be no non-violent resolution of the dispute on the basis of an argument based on the principle of estoppel.

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Because Clayton's long work here didn't get approved in a timely manner, I am going to offer a challenge and a prize for critiques.

This is on my own, out of my pocket, and has nothing to do with LvMI whatsoever.

The first two (2) quality critiques (pro or con) with 600+ words of unique content (quotes do not count towards the total) each will receive a $15 Mises Book Store gift certificate.

Who judges what is quality?  I will.  If you don't like that, don't participate.

This offer expires Thursday Jan 21st 2010 at 11:59 PM GMT-5.

There is no cash value for this prize, and I'm not going to answer any questions about technical minutiae of the competition (I will remove questions about the challenge from this thread).  Get writing if you want to win.

I'll update the thread with who the winners were by the weekend.

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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I just bumped up the prizes to $15 each, extended the challenge one day, and decided, if no one meets the challenge, the prizes (one or both) go to Clayton.

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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Clayton replied on Wed, Jan 20 2010 1:34 AM

liberty student:

I just bumped up the prizes to $15 each, extended the challenge one day, and decided, if no one meets the challenge, the prizes (one or both) go to Clayton.

Wow!

Clayton -

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replied on Wed, Jan 20 2010 2:37 AM

"What about stop signs private property? Can I be fined for driving past a stop sign on private property? The act of driving through the stop sign does not, in itself, constitute a violation of any of the property rights of the owner of the land on which the stop sign is situated since I am operating my property (the vehicle) as I see fit."

 

if say, you operated your weewee on a property owners floor as you saw fit...would that constitute a violation of property rights?  if there wasnt a sign saying "we aim to please so you aim to please"...only a water filled pot??

what would that be?  property owners discretion?

 

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Clayton replied on Wed, Jan 20 2010 3:39 AM

33n119w:

"What about stop signs private property? Can I be fined for driving past a stop sign on private property? The act of driving through the stop sign does not, in itself, constitute a violation of any of the property rights of the owner of the land on which the stop sign is situated since I am operating my property (the vehicle) as I see fit."

 

if say, you operated your weewee on a property owners floor as you saw fit...would that constitute a violation of property rights?  if there wasnt a sign saying "we aim to please so you aim to please"...only a water filled pot??

what would that be?  property owners discretion?

 

Well, this goes to the "entangled" nature of physical resources - while my urine is my property (!), disposing of it on your property modifies your property and, hence, likely requires your consent (explicit or, usually, implicit). I don't see how driving through a stop sign on your property entails any redrawing of property boundaries... what physical resource is modified by my disregard for your traffic flow indications? I'm not arguing that private roadways could not have traffic flow control, they easily could by use of contract. But in the absence of contract, I don't think that disobeying you while on your property (besides disobeying an order to leave) is a violation of your property rights.

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Well I don't know about 600 words but I will do a little critique and hopefully start a good discussion on the matter. There are some minor issues which I will highlight and address in a point by point summation. 

ClaytonB:

David Friedman says the following:

… consider an ethic according to which there are no rights at all; everyone is morally free to coerce everyone else whenever he can get away with it, but many people succeed in defending themselves well enough so that they control much of their own [property]. According to their ethic they have no right to self ownership, nor to anything else, but they have physical control over themselves... One might plausibly claim that this comes close to describing the world we now live in. [Emphasis added]

First this statement. So we are to assume a world in a brutish state of nature where no one has rights yet they have property? How does one derive property without rights? In your statements concerning unilateral property lines you perhaps implicitly stated a very key fact to the deficiency of what Friedman is presenting and what you said is an accurate statement and that is 'exclusivity.'  It is your property to the degree that it is exclusively owned by you therefore disallowing others to partake in it. You cannot have exclusive property lines without first establishing some form of basic rights.

ClaytonB:
The purse thief is hardly concerned with the fact that his actions are immoral or violate the rights of his victim. Hence, it is of no use to expound upon his violations of natural rights. As with Friedman’s approach, Rothbard’s approach fails because it is not applicable to real disputes
 

And why should it matter what he thinks of his actions? Would it make a difference if he were repentant? Or if he revealed in the deed? Is it any less of a violation of property lines? To throw out natural rights because of a criminal's emotions concerning the crimes they committed is shoddy reasoning. 

ClaytonB:
Law is the alternative to violent conflict when conflict-avoidance strategies (such as property lines) have failed to avoid conflict. In terms of rights in property, law is the production of new, stipulated property-lines which resolve real conflicts without further violence.

But that is not what law is at all. The law is the legitimate enforcement of moral obligations through either violent, such as coercion, or non-violent, such as social ostracism, means. 

ClaytonB:
In modern law systems, the aggressor (accused) has an incentive to resolve the conflict with his victim by means of law because the state will immediately retaliate against the accused for failure to comply with a court trial.

And thus the law is not the alternative to violent conflict. For the judge is using the threat of violence, a coercive act which would not be allowed in a initiatory capacity, to reach the goal of restitution. 

ClaytonB:
After all, an aggressor usually will not attack unless he reasonably believes he can get away with the attack in the first place. That is, he has already calculated that he can win a martial contest with the victim.

Not always, especially in crimes of passion.

ClaytonB:
So, no one would ever commit a crime worse than hypocrisy, which does not seem to me to be a very serious crime, if it is a crime at all. However, Kinsella’s approach falls on the same criterion that Rothbard’s, Friedman’s and Hoppe’s approaches fall – it is not useful to parties in a real legal dispute.

You never define what is 'useful to parties' and truly you are just singling out one method and trying to knock down everything that poses a challenge to it through ambiguous wording. If your whole basis of what is acceptable to both parties for legal disputes is what law is then I submit there is no law. For you have setup a Platonic perfection of the system of law which can only be found in the afterlife. For there is the possibility of someone so militant in their belief of debauchery that they will never submit to legal disputes and then what do you propose to do about them? If Rothbard's & Hoppe's system fails because of ambiguity concerning the part of the aggressor then what in your system eliminates such ambiguity and ceases itself to be the same as those that you labeled failures? 

ClaytonB:
In other words, any violence which a party would accept as a non-violent resolution to a real dispute is justifiable violence.

How can one accept violence as a non-violent resolution? 

ClaytonB:
Rights and general laws emerge from the pattern of successful resolution of past real conflicts by non-violent means, just as common law developed in England and the US prior to the creation of legislatures.

Explain how rights just appear from where they weren't before? This is the deficiency of positive liberty. How can you be empowered by a social institution concerning morally acceptable behavior that isn't based on human fancy or whim? 

By the way, if I win this little affair then I would like a 15 dollar gift card to Chili's because according to Small Business Man Magazine it is the new place to do business. 

'Men do not change, they unmask themselves' - Germaine de Stael

 

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Good post Clayton. I can't find much I disagree with, but I'll re-read it tonight and see if I can come up with a critique.  For now I just wanted to respond to a couple of things LM said...

Laughing Man:
First this statement. So we are to assume a world in a brutish state of nature where no one has rights yet they have property? How does one derive property without rights? In your statements concerning unilateral property lines you perhaps implicitly stated a very key fact to the deficiency of what Friedman is presenting and what you said is an accurate statement and that is 'exclusivity.'  It is your property to the degree that it is exclusively owned by you therefore disallowing others to partake in it. You cannot have exclusive property lines without first establishing some form of basic rights.

I think you're looking at it backwards.  Property is inescapable; human beings must have scarce resources under their control in order to survive.  The idea of "rights" or "proper ownership" or "just property" or "rightful property" or "property rights" is derived from the idea of property, not the other way round.  Any system of law/rights is just a particular way of assigning property.  For example, the libertarian system of law/rights is based on the principles of homesteading, abandonment and voluntary exchange.  Another system of law/rights could be based on the principle of "the greater good" or something.  The concept of property comes first, then rules for assigning property, i.e. laws/rights.

Laughing Man:
Explain how rights just appear from where they weren't before?
 

Have you read "Toward a Theory of Empirical Natural Rights" (Hasnas)?  It does a good job explaining how rights "appear where they weren't before".  Also very good is "Boundaries of Order" (Shaffer).

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Conza88 replied on Wed, Jan 20 2010 7:01 AM

Saw this on your blog;

Stephan Kinsella said...

Rejecting estoppel doesn't help. The purpose of estoppel is to demonstrate to the victim and the other parties cooperating in helping him obtain justice, that his desired punishment of the criminal is justified. It is not to persuade the criminal. His consent is not needed. In fact his non-consent is presupposed--if he consented we would not need to use force against him, or to justify the use of the force. So it appears you've misunderstood the argument.

Thought I would add it here.

 

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AJ replied on Wed, Jan 20 2010 7:57 AM

Epic post, Clayton. I read it all, but I am wondering, aren't you ultimately saying that law is common law, but X......is also ultimately common law, yet Y......is also ultimately common law, however Z......is actually also ultimately common law, etc.?

You're using the concept of redrawing property lines, but the whole idea of property, where property lines are drawn, and what constitutes redrawing are all.....ultimately matters of common law, right?

I trust you have read http://mises.org/Community/forums/t/12969.aspx ?

--

Also, why does a legal system have to be agreeable to the aggressor after they have aggressed? An aggressor may agree to a legal system beforehand, and of course they will disagree with it after they have broken the law. It seems to me that you neglected that time aspect. If you include the time aspect, at least Friedman's theory seems to dodge your critique.

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Laughing Man:
By the way, if I win this little affair then I would like a 15 dollar gift card to Chili's because according to Small Business Man Magazine it is the new place to do business. 

You're short content.  And looks like Clayton is going go walk away from this with $30 in LvMI bookstore gift certificates unless some folks step up.

600+ words, critique the OP.

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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trulib:
Property is inescapable; human beings must have scarce resources under their control in order to survive.  The idea of "rights" or "proper ownership" or "just property" or "rightful property" or "property rights" is derived from the idea of property, not the other way round.  Any system of law/rights is just a particular way of assigning property.  For example, the libertarian system of law/rights is based on the principles of homesteading, abandonment and voluntary exchange.  Another system of law/rights could be based on the principle of "the greater good" or something.  The concept of property comes first, then rules for assigning property, i.e. laws/rights.

First you have to conceptualize property and that presupposes some right to obtain it and enforce excludibility. You cannot do with without property rights first.

trulib:
Have you read "Toward a Theory of Empirical Natural Rights" (Hasnas)?  It does a good job explaining how rights "appear where they weren't before".  Also very good is "Boundaries of Order" (Shaffer).

No I haven't. Perhaps you will do me the service of explaining how property can be established in the first place without the right to recognize it as property. How can one homestead without the right to acquire unused resources?

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liberty student:
You're short content.  And looks like Clayton is going go walk away from this with $30 in LvMI bookstore gift certificates unless some folks step up.

That's ok.I just wanted to give a retort on some of the issues I thought he was missing.

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Clayton replied on Wed, Jan 20 2010 2:21 PM

AJ:

Epic post, Clayton. I read it all, but I am wondering, aren't you ultimately saying that law is common law, but X......is also ultimately common law, yet Y......is also ultimately common law, however Z......is actually also ultimately common law, etc.?

I'm not sure I understand your objection.

You're using the concept of redrawing property lines, but the whole idea of property, where property lines are drawn, and what constitutes redrawing are all.....ultimately matters of common law, right?

Well, yes and no. Animals exhibit territorialism but they, obviously, have no law (law requires verbal communication and at least a capacity to make deductions and engage in inductive reasoning). Property, that is, heuristics or rules of behavior which divide up physical resources to the exclusive control of one or another entity, are at least partly built in to our biology since even the animals exhibit this pattern. The particular, detailed conception of property that we have comes from long use in common or customary law (the contents of property law) but the "existential component" (to use a $64 word) of property is really antecedent to human verbal reasoning, meaning, it is more basic than law. To say it another way, if there's an area for law in the human brain, it's likely closer to the frontal lobe than the corresponding area in the brain for property, which is likely closer to the brain stem because it evolved earlier*.

No, I haven't, I will read this ASAP.

Also, why does a legal system have to be agreeable to the aggressor after they have aggressed?

I think you've identified the key difference between my conception of law and the natural rights conception. In the natural rights conception, the aggressor, once convicted, essentially loses some or all of his rights. In my conception, nobody ever loses their "rights" because rights are really an emergent phenomenon, with individual powers being determined primarily by the "brutish" capacity of an individual to use force to do as he sees fit. The motivation for wanting to understand law this way is to try to apply the economic principle of revealed preference to the violence which individuals accept as the outcome of court decisions. A rigorous application of the non-aggression principle would leave a world where punishment is impossible because it is a new, unnecessary act of violence which only makes the world a more violent place, not less. You can argue that if we permit punishment, this will deter violent criminals and then the world will have less violence but the problem is that this is collectivist and unempirical reasoning. There is no demonstrable causal chain from X years in prison to some would-be murderer's decision to forgo killing someone. How can that possibly be measured? It can't and the claim that punishment reduces violence in the world, however true it may be, can't be proven.

But if we analyze the law as creating stipulated resolutions to disputes to which both parties always agree, and the reasons for their agreement being to avoid what they both consider a worse situation (open conflict), then even punishments can be seen in the light of revealed preference. Bob accepts 40 lashes in public as punishment for beating Alice, after Alice sued Bob with the threat that if Bob does not go to court, Alice's PDA will take direct retaliatory action (likely, kill Bob). Bob's preference for the 40 lashes means that Bob thought it better to receive 40 lashes than to be killed by Alice's PDA.

An aggressor may agree to a legal system beforehand, and of course they will disagree with it after they have broken the law. It seems to me that you neglected that time aspect. If you include the time aspect, at least Friedman's theory seems to dodge your critique.

But time shouldn't matter to the point of revealed preference. You could say, "well, he revealed his preference by choosing to live under that system of rules... knowing what the punishment was, he committed the crime anyway." But this doesn't square with the usual meaning of revealed preference. It's comparing legal systems to choosing a cellphone contract... "You knew you'd have to pay the $200 early termination fee when you signed the contract, so you can't complain about it now." But in the most general case, there is no contract between the parties in conflict. Friedman deals with this by arguing that a network of pre-existing contracts between PDAs (almost like treaties between countries) will quickly emerge in a private law society. That is fine insofar as it goes, since the existence of a contract stipulates the penalties for this or that action beforehand, but the problem is what happens when there is no contract and in a great many cases there will not be. It's like car insurance in the absence of a law mandating it. The car insurers usually just deal with each other through pre-arranged contractual arrangements and car accidents between two insured parties are quickly resolved. But a great many folks (especially poor folks) would be driving around uninsured if the law did not require insurance in order to drive. Whenever one or both parties are uninsured, there is no "automatic" mechanism for resolving the dispute and deciding who pays what. To translate this to private law society, I imagine that a great many cases will occur where one or both parties did not already have a PDA or the PDAs did not have an existing agreement or the existing agreements did not cover the particular dispute which has arisen. The only option is to mandate membership in a PDA which is not very libertarian, is it? Wink

I agree with Friedman that a network of interlocking arrangements between PDAs would likely quickly emerge and that this would cover 99% of situations but this still doesn't tell us that these arrangements are good or desirable. The only justification that Friedman gives in law's order is that a more efficient society results. This is hopefully true but it is no use, as far as it goes, to demonstrating that an individual in a real dispute should accept Friedman's efficient world. Only if the individual freely chooses an option do we know that that option constituted an improvement in human welfare. The idea of preferring a punishment seems a contradiction since everyone would always prefer not being punished to being punished. But I think that line of reasoning is compare things which are not alike... the choice is not between punishment or no punishment, the choice is between accepting a punishment or martial contest. Since martial contest is a really, really bad option, most people will opt to accept a stipulated, reasonable punishment for their actions to settle the matter.

In those cases where a hard-headed aggressor refuses any court proceeding, we have to imagine that his PDA will not likely want to go to bat for him and will cut him loose. You could say this is bad for business but I don't think so, I don't think most people will choose against protection from a PDA because they don't defend people who won't go to court. When this happens, the hard-headed guy has to take on the well-trained, multi-billion dollar PDA of his victim. He will lose. The other possibility is that the hard-headed aggressor is part of a gang or has a contract with a seedy PDA, e.g. Drug Dealers Defense Agency, which will go to war to defend its clients even when they refuse to go to court. In this case, we would expect that such PDAs will be marginalized because they are defending a tiny minority of the population which seeks protection from the seedy agency exactly because they are up to no good. So, this is a simple contest between the weight of daylight PDAs versus after-dark PDAs... and there seems to me to be no question of who wins. The multi-national, multi-billion dollar daylight PDA is going to bulldoze the fly-by-night, local, million-dollar PDA. This is Friedman's conclusion.

At least, that's how I see it.

Clayton -

*Please note that I'm speaking poetically, here, I am not making real claims about the physiology of the brain

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Clayton replied on Wed, Jan 20 2010 2:42 PM

Errata: Missing cite for Kinsella's definition of property: http://www.stephankinsella.com/2009/08/09/why-airwaves-are-arguably-property/

Missing cite for Kinsella's application of estoppel: http://mises.org/journals/jls/12_1/12_1_3.pdf

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Sage replied on Wed, Jan 20 2010 3:00 PM

trulib:
The idea of "rights" or "proper ownership" or "just property" or "rightful property" or "property rights" is derived from the idea of property, not the other way round.

I disagree. Sure, the concept of rights presupposes the concept of property. But the concept of property likewise presupposes the concept of rights. So there's no chicken and egg scenario; they both arise together.

AnalyticalAnarchism.net - The Positive Political Economy of Anarchism

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Sage:
they both arise together.
Quoted for truth. I think this is a rarely appreciated insight.

Where there is no property there is no justice; a proposition as certain as any demonstration in Euclid

Fools! not to see that what they madly desire would be a calamity to them as no hands but their own could bring

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AJ replied on Wed, Jan 20 2010 3:43 PM

ClaytonB:
To say it another way, if there's an area for law in the human brain, it's likely closer to the frontal lobe than the corresponding area in the brain for property, which is likely closer to the brain stem because it evolved earlier*.

Sure, but at least in traditional common law settings the individual doesn't get to decide the law, regardless of their instincts. So I guess I'm a little unclear on what your overarching thesis in the OP was. Can you put it in a single sentence?

ClaytonB:
Bob accepts 40 lashes in public as punishment for beating Alice, after Alice sued Bob with the threat that if Bob does not go to court, Alice's PDA will take direct retaliatory action (likely, kill Bob). Bob's preference for the 40 lashes means that Bob thought it better to receive 40 lashes than to be killed by Alice's PDA.

These concrete examples help a lot. More like this would be better, because I'm not quite sure where you're going with this. Unfortunately I don't have enough time to think this over thoroughly now, but I wanted to keep the discussion going.

ClaytonB:
Friedman deals with this by arguing that a network of pre-existing contracts between PDAs (almost like treaties between countries) will quickly emerge in a private law society. That is fine insofar as it goes, since the existence of a contract stipulates the penalties for this or that action beforehand, but the problem is what happens when there is no contract and in a great many cases there will not be. It's like car insurance in the absence of a law mandating it. The car insurers usually just deal with each other through pre-arranged contractual arrangements and car accidents between two insured parties are quickly resolved. But a great many folks (especially poor folks) would be driving around uninsured if the law did not require insurance in order to drive.

There may be no specific penalty mandated beforehand, but there could be a third arbiter specified.

Also, all poor folks (besides homeless ones) already have to have real estate agents, supermarkets, and employers, so why not PDAs? The first three are all necessary for survival; without any one of those businesses they would be homeless or starving (unless very self-sufficient). In Friedman's world there would be one additional business necessary for survival or livelihood, but I don't see that as a big deal necessarily.

I also don't think that someone without a PDA would necessarily be walked all over or killed arbitrarily if they couldn't pay up. It's still just us here, if you know what I mean. People will still be reasonable for the most part. I imagine that PDAs would treat uninsured people sort of like cops treat poor people now, but a little better. For both, it's bad PR to mistreat people. Still, not having a PDA would surely be a poor choice.

ClaytonB:
The only justification that Friedman gives in law's order is that a more efficient society results. This is hopefully true but it is no use, as far as it goes, to demonstrating that an individual in a real dispute should accept Friedman's efficient world.

Here again you seem to be referring to the individual accepting the whole system, but I don't see why. It seems inevitable that, to some extent, people are stuck with the world as it currently is. If everyone around you is barbaric, you can either go off and fend for yourself in the mountains or try to get along in society somehow. A political system or a legal system can only increase or decrease the level of violence or barbarism relative to another system, presumably down to some minimum level depending on the characteristics of the people in that society. So I don't see that there's any issue of whether an individual should accept David Friedman's world.

However, what I may be missing here in that there is also something about your conception where it seems as if you'd like to conceive a law system where everyone always agrees on the penalties...or something. That part I'm not quite clear on - both your thesis or goal, and the argument for it. More concrete examples would really help, because the idea seems interesting.

ClaytonB:
Only if the individual freely chooses an option do we know that that option constituted an improvement in human welfare. The idea of preferring a punishment seems a contradiction since everyone would always prefer not being punished to being punished. But I think that line of reasoning is compare things which are not alike... the choice is not between punishment or no punishment, the choice is between accepting a punishment or martial contest. Since martial contest is a really, really bad option, most people will opt to accept a stipulated, reasonable punishment for their actions to settle the matter.

I've not time to think this through at the moment, but it seems in some sense you're putting the cart before the horse. The idea that, say, a young hood who robs a lonely old widow will prefer a punishment to a martial contest depends on the idea of a PDA being the one the hood would have the contest with. If it were just with the old lady and her nonexistent family, he'd probably choose the martial contest.

ClaytonB:

No, I haven't, I will read this ASAP.

You could just skip to the last section, because it's pretty long.

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Laughing Man:
First you have to conceptualize property and that presupposes some right to obtain it and enforce excludibility. You cannot do with without property rights first.

I see property as being a more basic concept, implied by the action axiom and the fundamental fact of scarcity.  Property is a scarce resource being used as a means by a human being.  

Laughing Man:
Perhaps you will do me the service of explaining how property can be established in the first place without the right to recognize it as property. How can one homestead without the right to acquire unused resources?
 

 

(Hasnas, p17)

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Clayton replied on Wed, Jan 20 2010 5:08 PM

Laughing Man:

Well I don't know about 600 words but I will do a little critique and hopefully start a good discussion on the matter. There are some minor issues which I will highlight and address in a point by point summation. 

ClaytonB:

David Friedman says the following:

… consider an ethic according to which there are no rights at all; everyone is morally free to coerce everyone else whenever he can get away with it, but many people succeed in defending themselves well enough so that they control much of their own [property]. According to their ethic they have no right to self ownership, nor to anything else, but they have physical control over themselves... One might plausibly claim that this comes close to describing the world we now live in. [Emphasis added]

First this statement. So we are to assume a world in a brutish state of nature where no one has rights yet they have property? How does one derive property without rights? In your statements concerning unilateral property lines you perhaps implicitly stated a very key fact to the deficiency of what Friedman is presenting and what you said is an accurate statement and that is 'exclusivity.'  It is your property to the degree that it is exclusively owned by you therefore disallowing others to partake in it. You cannot have exclusive property lines without first establishing some form of basic rights.

But how is exclusivity enforced in the animal world? Solely by threat of force. Or, to be more precise, solely as the result of amoral calculation of threat and force. Animal territory is not based on verbal reasoning, as rights are, because animals do not have that capacity. So, exclusivity does not entail rights because exclusive control over physical resources is exercised by animals in the absence of law and rights.

ClaytonB:
The purse thief is hardly concerned with the fact that his actions are immoral or violate the rights of his victim. Hence, it is of no use to expound upon his violations of natural rights. As with Friedman’s approach, Rothbard’s approach fails because it is not applicable to real disputes
 

And why should it matter what he thinks of his actions? Would it make a difference if he were repentant? Or if he revealed in the deed? Is it any less of a violation of property lines? To throw out natural rights because of a criminal's emotions concerning the crimes they committed is shoddy reasoning.

Well, it doesn't matter what he thinks of his own actions to the issue of law. What matters is that we cannot say that a punishment which is imposed results in an improvement of human welfare, where we can say that a punishment which is accepted does. No one will ever accept a punishment because to fail to accept it would require denying natural rights. If the choice is between accepting punishment or denying the concept of natural rights, anyone would deny the concept of natural rights. What difference does it make? Natural rights is just an idea.

ClaytonB:
Law is the alternative to violent conflict when conflict-avoidance strategies (such as property lines) have failed to avoid conflict. In terms of rights in property, law is the production of new, stipulated property-lines which resolve real conflicts without further violence.

But that is not what law is at all. The law is the legitimate enforcement of moral obligations through either violent, such as coercion, or non-violent, such as social ostracism, means.

No libertarian philosopher that I am aware of agrees with that definition. Rothbard specifically debunks that definition in his Ethics of Liberty.

ClaytonB:
In modern law systems, the aggressor (accused) has an incentive to resolve the conflict with his victim by means of law because the state will immediately retaliate against the accused for failure to comply with a court trial.

And thus the law is not the alternative to violent conflict. For the judge is using the threat of violence, a coercive act which would not be allowed in a initiatory capacity, to reach the goal of restitution.

Right, law in the modern law systems is not an alternative to violence, it is violence.

ClaytonB:
After all, an aggressor usually will not attack unless he reasonably believes he can get away with the attack in the first place. That is, he has already calculated that he can win a martial contest with the victim.

Not always, especially in crimes of passion.

ClaytonB:
So, no one would ever commit a crime worse than hypocrisy, which does not seem to me to be a very serious crime, if it is a crime at all. However, Kinsella’s approach falls on the same criterion that Rothbard’s, Friedman’s and Hoppe’s approaches fall – it is not useful to parties in a real legal dispute.

You never define what is 'useful to parties' and truly you are just singling out one method and trying to knock down everything that poses a challenge to it through ambiguous wording. If your whole basis of what is acceptable to both parties for legal disputes is what law is then I submit there is no law. For you have setup a Platonic perfection of the system of law which can only be found in the afterlife. For there is the possibility of someone so militant in their belief of debauchery that they will never submit to legal disputes and then what do you propose to do about them?

Kill them. If someone goes around constantly starting disputes with people and refuses to have them peaceably settled, there comes a point where it's trigger time. To quote Will Smith in MIB, "Don't start nothin' and there won't be nothin'." Smile

If Rothbard's & Hoppe's system fails because of ambiguity concerning the part of the aggressor then what in your system eliminates such ambiguity and ceases itself to be the same as those that you labeled failures?

It's not ambiguity, it's that Rothbard and Hoppe (and Friedman and Kinsella) cannot get to a point where the punished party voluntarily accepts punishment because they present the failure modes of court trial to be something other than martial contest. Rothbard would say to the convicted, "To refuse to accept double-restitution to the victim, you must deny natural rights and proportionality of punishment" to which the convicted would reply, "OK, so what?" Friedman would say, "To refuse to accept the punishment which has been arrived at by the courts is to say that you do not want to live in an efficient law society" to which the convicted would reply, "OK, so what?" The same goes for Kinsella's estoppel argument. In every case, the convicted must either be coerced (by having the punishment imposed upon him) or he has no reason to accept punishment. Of course, my "system" is no different but how I analyze the source of the coercion is different and, I believe, novel, and gives us useful information about why private law is better than monopoly law. The convicted is indeed coerced but the threat of coercion is the alternative to punishment. The convicted came to court to avoid a martial contest with the accuser. The convicted stipulates his punishment, arrived at with the assistance of the court, in order to settle the matter and prevent any further violence between himself and the accuser. That means we can apply the idea of revealed preference even to violence and, if that is correct, that is significant because now we can say why private law is better in much stronger terms than David Friemdan's Coasean arguments.

ClaytonB:
In other words, any violence which a party would accept as a non-violent resolution to a real dispute is justifiable violence.

How can one accept violence as a non-violent resolution?

Well, the resolution is reached by non-violent means (verbal argument) but the resolution itself may entail violence, i.e. restitution of property. If you steal my television and the resolution reached in court is that you must return it, that resolution is backstopped by the threat of force, it is violence in the very broad propertarian sense of violence.

ClaytonB:
Rights and general laws emerge from the pattern of successful resolution of past real conflicts by non-violent means, just as common law developed in England and the US prior to the creation of legislatures.

Explain how rights just appear from where they weren't before? This is the deficiency of positive liberty. How can you be empowered by a social institution concerning morally acceptable behavior that isn't based on human fancy or whim? 

I think the closest comparison is language. Language and meaning "emerge" from the utterance of sounds. Sounds in themselves have no meaning, but meaning emerged from the use of sounds to coordinate actions. Meaningless sounds became meaningful through a decentralized process of interactions. I'm probably not doing justice to the theory of the evolution of language but I think this sketch outline is very similar to the how law emerged.

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trulib:
I see property as being a more basic concept, implied by the action axiom and the fundamental fact of scarcity.  Property is a scarce resource being used as a means by a human being.

Property the concept is not a scarce resource. The concept must first be realized in order to label a thing property.

trulib:

(Hasnas, p17)

But what is an inconvenience? It is agent-relative. And what is the basis for the requirement of my obligation to you? Tradition? That is a loose answer. Also the basis for much of Western civilization can be traced back to two civilizations, the Greeks and the Romans. Now of course things have developed, been refined etc, but much of what our society has been based on isn't 'trial and error' as if rights were some empirical science.

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ClaytonB:
But how is exclusivity enforced in the animal world? Solely by threat of force. Or, to be more precise, solely as the result of amoral calculation of threat and force. Animal territory is not based on verbal reasoning, as rights are, because animals do not have that capacity. So, exclusivity does not entail rights because exclusive control over physical resources is exercised by animals in the absence of law and rights.

Such is the 'might makes right' doctrine. Animals live by the law of nature and therefore the right to have exclusive control over physical resources is established by violent behavior. Thus a right system is still established through the eyes of a human. Animals have no conceptualization of property so they know nothing but instinctual behavior.

ClaytonB:
What matters is that we cannot say that a punishment which is imposed results in an improvement of human welfare, where we can say that a punishment which is accepted does.

Why should we care about the improvement of human welfare concerning the aggressor? Justice does not infer a positive sum when it is acted upon. Justice is concerning with the correcting of unjust acts to a state the previous being before the unjust act was committed. An aggressor will be punished regardless of what he/she accepts.

ClaytonB:
No one will ever accept a punishment because to fail to accept it would require denying natural rights. If the choice is between accepting punishment or denying the concept of natural rights, anyone would deny the concept of natural rights. What difference does it make? Natural rights is just an idea

Law is, for all purposes, an idea. Natural rights do not just vanish if one refuses to admit to crimes committed. If a criminal steals a chocolate bar and refuses to accept the punishment then it is not justice nor is it moral to kill said person simply because you think they somehow deny human rights.

ClaytonB:
No libertarian philosopher that I am aware of agrees with that definition. Rothbard specifically debunks that definition in his Ethics of Liberty.

I'm using a definition as provided by Roderick Long. Please though I would like the citation for where Rothbard debunks this.

ClaytonB:
Kill them. If someone goes around constantly starting disputes with people and refuses to have them peaceably settled, there comes a point where it's trigger time. To quote Will Smith in MIB, "Don't start nothin' and there won't be nothin'." Smile

That is not a sufficient answer.

ClaytonB:
Rothbard would say to the convicted, "To refuse to accept double-restitution to the victim, you must deny natural rights and proportionality of punishment" to which the convicted would reply, "OK, so what?"

Where does Rothbard say this?

ClaytonB:
In every case, the convicted must either be coerced (by having the punishment imposed upon him) or he has no reason to accept punishment.

This completely disregards repentant individuals.

ClaytonB:
Of course, my "system" is no different but how I analyze the source of the coercion is different and, I believe, novel, and gives us useful information about why private law is better than monopoly law. The convicted is indeed coerced but the threat of coercion is the alternative to punishment.

And Rothbard's system does not have the threat of legitimate coercion through the court system? Whether it is a threat or the actual act of punishment, it is still the same principle of coercion. The question is whether it is a legitimate obligation or an illegitimate one.

ClaytonB:
The convicted came to court to avoid a martial contest with the accuser. The convicted stipulates his punishment, arrived at with the assistance of the court, in order to settle the matter and prevent any further violence between himself and the accuser

So the aggressor picks his/her punishment? What if one does not pick a punishment and why is the aggressor the one who picks it? They are the violator, why should they be allowed to further abuse the wronged individual?

ClaytonB:
I think the closest comparison is language. Language and meaning "emerge" from the utterance of sounds. Sounds in themselves have no meaning, but meaning emerged from the use of sounds to coordinate actions. Meaningless sounds became meaningful through a decentralized process of interactions. I'm probably not doing justice to the theory of the evolution of language but I think this sketch outline is very similar to the how law emerged.

Well if sounds are meaningless then it follows that a certain sequence of them are just as meaningless. So words, sentences, interactions that are spoken, are completely meaningless or are so ambiguous that they could mean anything and really therefore nothing.

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Sage:

trulib:
The idea of "rights" or "proper ownership" or "just property" or "rightful property" or "property rights" is derived from the idea of property, not the other way round.

I disagree. Sure, the concept of rights presupposes the concept of property. But the concept of property likewise presupposes the concept of rights. So there's no chicken and egg scenario; they both arise together.

 I think you're correct.  Here is Shaffer:

"Because “property” has meaning only within a social context, how it is to be owned and controlled defines the nature of a given society. An analysis of the concept must begin by identifying the functional elements of property, and inquiring into their personal and social implications. These elements—which will be explored at length in this and the following two chapters—are those of boundary, claim, and control. While these concepts will be discussed separately, it must be emphasized that they are as interconnected to an understanding of property as the heart, lungs, and circulatory system are to the functioning of the body. Our inquiry into each of these three elements will occasionally cross over from one to the other."

He later says:

"The element of “claim” is the most philosophically controversial feature of property ownership. This is because all property, in order to be owned, must be claimed by someone, whether they be private persons (e.g., an individual, a corporation) or a political entity (e.g., the state). To claim ownership is to assert a right to decision-making control over an item of property...

A claim of ownership is the assertion of one’s will, addressed to others, to be the exclusive decision-maker over oneself or some resource; to have what one claims be immune from trespasses by other persons."

So "asserting one's will", "asserting a right" and "claiming ownership" over a resource mean the same thing.  The concept of "property" cannot exist without the concept of "claim", and "claim" means to assert a right.  OK.

I'm trying to square this with what Hasnas says, quoted in my previous post:

"Over time, these rules become invested with normative significance and the members of the community come to regard the ways in which the rules permit them to act at their pleasure as their rights.  Thus, in the state of nature, rights evolve out human beings' efforts to address the inconveniences of that state.  In the state of nature, rights are solved problems."

By "normative significance", does he mean

  1. That the members of the community come to regard some claims as (objectively) ethical and some as unethical?  Or just...
  2. That the members of the community come to regard some claims as likely to be respected and some as likely not to be?
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Clayton replied on Wed, Jan 20 2010 7:02 PM

Laughing Man:

ClaytonB:
But how is exclusivity enforced in the animal world? Solely by threat of force. Or, to be more precise, solely as the result of amoral calculation of threat and force. Animal territory is not based on verbal reasoning, as rights are, because animals do not have that capacity. So, exclusivity does not entail rights because exclusive control over physical resources is exercised by animals in the absence of law and rights.

Such is the 'might makes right' doctrine. Animals live by the law of nature and therefore the right to have exclusive control over physical resources is established by violent behavior. Thus a right system is still established through the eyes of a human. Animals have no conceptualization of property so they know nothing but instinctual behavior.

You contradict yourself here. Property is a system or strategy for assigning exclusive control of physical resources to individual actors. Animals exhibit exclusive control over physical resources, which means that property is very basic, more basic than law which presupposes the capacity for verbal reasoning.

ClaytonB:
What matters is that we cannot say that a punishment which is imposed results in an improvement of human welfare, where we can say that a punishment which is accepted does.

Why should we care about the improvement of human welfare concerning the aggressor?

Caring about an individual human's welfare is beside the point. My point is that we can say why private law is preferable to monopoly law, namely, that it results in an improvement of human welfare by virtue of revealed preference. This is the same argument by which free exchange can be proven to be superior to coercive central planning. In central planning, there is no way to know whether transactions are improving human welfare (and, by virtue of their being coercive, we can assume that most exchanges are at best zero-sum) but we know that voluntary exchanges improve human welfare because each party to the exchange believed the exchange would improve his/her welfare.

Justice does not infer a positive sum when it is acted upon. Justice is concerning with the correcting of unjust acts to a state the previous being before the unjust act was committed. An aggressor will be punished regardless of what he/she accepts.

Well, it is impossible to rewind the clock. The previous state of affairs to a murder cannot be restored. So, all punishments are gratuitous to one degree or another. 

ClaytonB:
No libertarian philosopher that I am aware of agrees with that definition. Rothbard specifically debunks that definition in his Ethics of Liberty.

I'm using a definition as provided by Roderick Long. Please though I would like the citation for where Rothbard debunks this.

From ch. 19 of Ethics of Liberty:

"Let us illustrate this point. Suppose that Smith and Jones make a contract, Smith giving $1000 to Jones at the present moment, in exchange for an IOU of Jones, agreeing to pay Smith $1100 one year from now. This is a typical debt contract. What has happened is that Smith has transferred his title to ownership of $1000 at present in exchange for Jones agreeing now to transfer title to Smith of $1100 one year from now. Suppose that, when the appointed date arrives one year later, Jones refuses to pay. Why should this payment now be enforceable at libertarian law? Existing law (which will be dealt with in greater detail below) largely contends that Jones must pay $1100 because he has “promised” to pay, and that this promise set up in Smith’s mind the “expectation” that he would receive the money.

     Our contention here is that mere promises are not a transfer of property title; that while it may well be the moral thing to keep one’s promises, that it is not and cannot be the function of law (i.e., legal violence) in a libertarian system to enforce morality (in this case the keeping of promises). Our contention here is that Jones must pay Smith $1100 because he had already agreed to transfer title, and that nonpayment means that Jones is a thief, that he has stolen the property of Smith. In short, Smith’s original transfer of the $1000 was not absolute, but conditional, conditional on Jones paying the $1100 in a year, and that, therefore, the failure to pay is an implicit theft of Smith’s rightful property." [Emphasis added]

ClaytonB:
Kill them. If someone goes around constantly starting disputes with people and refuses to have them peaceably settled, there comes a point where it's trigger time. To quote Will Smith in MIB, "Don't start nothin' and there won't be nothin'." Smile

That is not a sufficient answer.

*shrug

If the troublemaker is dead, he can't make any more trouble. It was his own choice to opt out of civilized law and live according to the law of the jungle. In the jungle, might does make right.

ClaytonB:
Rothbard would say to the convicted, "To refuse to accept double-restitution to the victim, you must deny natural rights and proportionality of punishment" to which the convicted would reply, "OK, so what?"

Where does Rothbard say this?

Look up his chapter on punishment in Ethics of Liberty.

ClaytonB:
In every case, the convicted must either be coerced (by having the punishment imposed upon him) or he has no reason to accept punishment.

This completely disregards repentant individuals.

ClaytonB:
Of course, my "system" is no different but how I analyze the source of the coercion is different and, I believe, novel, and gives us useful information about why private law is better than monopoly law. The convicted is indeed coerced but the threat of coercion is the alternative to punishment.

And Rothbard's system does not have the threat of legitimate coercion through the court system? Whether it is a threat or the actual act of punishment, it is still the same principle of coercion. The question is whether it is a legitimate obligation or an illegitimate one.

Not really. In this particular instance, that is not the question. In other words, if Bob steals Alice's purse and refuses to go to court and, in the course of events, Alice's PDA kills Bob, there is no question of whether that death was legitimate or illegitimate until, say, Bob's parents sue the PDA. Bob refused to take the dispute to a court for peaceable settlement so Alice had no recourse but to brute force (through the agency of her PDA). Whether that force was justifiable is now a separate question requiring a separate court case.

ClaytonB:
The convicted came to court to avoid a martial contest with the accuser. The convicted stipulates his punishment, arrived at with the assistance of the court, in order to settle the matter and prevent any further violence between himself and the accuser

So the aggressor picks his/her punishment? What if one does not pick a punishment and why is the aggressor the one who picks it? They are the violator, why should they be allowed to further abuse the wronged individual?

Yes, a stipulated agreement means both parties voluntarily agreed to the terms of the agreement. Since, in my view of law, the only reason the parties are in court is because they both wanted to be, of course the aggressor must accept the terms of the resulting agreement.

ClaytonB:
I think the closest comparison is language. Language and meaning "emerge" from the utterance of sounds. Sounds in themselves have no meaning, but meaning emerged from the use of sounds to coordinate actions. Meaningless sounds became meaningful through a decentralized process of interactions. I'm probably not doing justice to the theory of the evolution of language but I think this sketch outline is very similar to the how law emerged.

Well if sounds are meaningless then it follows that a certain sequence of them are just as meaningless. So words, sentences, interactions that are spoken, are completely meaningless or are so ambiguous that they could mean anything and really therefore nothing.

A single voltage level (in a computer processor or network cable) is meaningless... it does not follow that a sequence of them are, therefore, meaningless. Sequences convey information. Information can convey meaning.

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scineram replied on Wed, Jan 20 2010 7:14 PM

ClaytonB:
Caring about an individual human's welfare is beside the point. My point is that we can say why private law is preferable to monopoly law, namely, that it results in an improvement of human welfare by virtue of revealed preference. This is the same argument by which free exchange can be proven to be superior to coercive central planning. In central planning, there is no way to know whether transactions are improving human welfare (and, by virtue of their being coercive, we can assume that most exchanges are at best zero-sum) but we know that voluntary exchanges improve human welfare because each party to the exchange believed the exchange would improve his/her welfare.

This welfare analysis is completely wrong. Revealed preferences can only show that you are better off.

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Stranger replied on Wed, Jan 20 2010 7:14 PM

ClaytonB:
It's not ambiguity, it's that Rothbard and Hoppe (and Friedman and Kinsella) cannot get to a point where the punished party voluntarily accepts punishment because they present the failure modes of court trial to be something other than martial contest. Rothbard would say to the convicted, "To refuse to accept double-restitution to the victim, you must deny natural rights and proportionality of punishment" to which the convicted would reply, "OK, so what?" Friedman would say, "To refuse to accept the punishment which has been arrived at by the courts is to say that you do not want to live in an efficient law society" to which the convicted would reply, "OK, so what?" The same goes for Kinsella's estoppel argument. In every case, the convicted must either be coerced (by having the punishment imposed upon him) or he has no reason to accept punishment.

I know for a fact that Hoppe does account for this, which is why he explains that people only appeal for justice to those who have the means to enforce the punishment.

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replied on Wed, Jan 20 2010 8:43 PM

or the means to allow one to get it themselves

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ClaytonB:
You contradict yourself here. Property is a system or strategy for assigning exclusive control of physical resources to individual actors. Animals exhibit exclusive control over physical resources, which means that property is very basic, more basic than law which presupposes the capacity for verbal reasoning.

How have I contradicted myself? Through the eyes of a human we can see property enforcement. However, animals have no ability to conceptualize and behave instinctually. Animals have no concept of property or property rights.

ClaytonB:
Caring about an individual human's welfare is beside the point. My point is that we can say why private law is preferable to monopoly law, namely, that it results in an improvement of human welfare by virtue of revealed preference

Well you say one thing then say another. If human welfare is 'beside the point' then why it is shown as an improvement of private law over 'state' law?

ClaytonB:
This is the same argument by which free exchange can be proven to be superior to coercive central planning. In central planning, there is no way to know whether transactions are improving human welfare (and, by virtue of their being coercive, we can assume that most exchanges are at best zero-sum) but we know that voluntary exchanges improve human welfare because each party to the exchange believed the exchange would improve his/her welfare.

Enforcement of law is not a positive sum transaction.

ClaytonB:
Well, it is impossible to rewind the clock. The previous state of affairs to a murder cannot be restored. So, all punishments are gratuitous to one degree or another. 

Well murder is more difficult. Obviously if we had something like a death machine like Walter Block mentions in which the life of the aggressor is taken and put in the body of the victim and the victim is now alive then that would be sufficient justice. However, since we don't have such a machine then we are forced to deal with near hits.

ClaytonB:

"Let us illustrate this point. Suppose that Smith and Jones make a contract, Smith giving $1000 to Jones at the present moment, in exchange for an IOU of Jones, agreeing to pay Smith $1100 one year from now. This is a typical debt contract. What has happened is that Smith has transferred his title to ownership of $1000 at present in exchange for Jones agreeing now to transfer title to Smith of $1100 one year from now. Suppose that, when the appointed date arrives one year later, Jones refuses to pay. Why should this payment now be enforceable at libertarian law? Existing law (which will be dealt with in greater detail below) largely contends that Jones must pay $1100 because he has “promised” to pay, and that this promise set up in Smith’s mind the “expectation” that he would receive the money.

     Our contention here is that mere promises are not a transfer of property title; that while it may well be the moral thing to keep one’s promises, that it is not and cannot be the function of law (i.e., legal violence) in a libertarian system to enforce morality (in this case the keeping of promises). Our contention here is that Jones must pay Smith $1100 because he had already agreed to transfer title, and that nonpayment means that Jones is a thief, that he has stolen the property of Smith. In short, Smith’s original transfer of the $1000 was not absolute, but conditional, conditional on Jones paying the $1100 in a year, and that, therefore, the failure to pay is an implicit theft of Smith’s rightful property." [Emphasis added]

That is the implicit contention of the law, the propounding of the good ie. morality. Why is murder illegal? You cannot answer without a value statement.

ClaytonB:

*shrug

If the troublemaker is dead, he can't make any more trouble. It was his own choice to opt out of civilized law and live according to the law of the jungle. In the jungle, might does make right.

Just because one doesn't agree to the punishment does not infer that death is the only acceptable outcome.

ClaytonB:
Look up his chapter on punishment in Ethics of Liberty.

Can you be more specific?

ClaytonB:
Not really. In this particular instance, that is not the question. In other words, if Bob steals Alice's purse and refuses to go to court and, in the course of events, Alice's PDA kills Bob, there is no question of whether that death was legitimate or illegitimate until, say, Bob's parents sue the PDA. Bob refused to take the dispute to a court for peaceable settlement so Alice had no recourse but to brute force (through the agency of her PDA). Whether that force was justifiable is now a separate question requiring a separate court case.

You lack proportional justice. Just because Bob steals a purse does not infer that Bob forfeits his life. Your system lacks any civility and would degenerate into a kill or be killed system of law. It also lacks 'innocent until proven guilty.'

ClaytonB:
Yes, a stipulated agreement means both parties voluntarily agreed to the terms of the agreement. Since, in my view of law, the only reason the parties are in court is because they both wanted to be, of course the aggressor must accept the terms of the resulting agreement.

And if I refuse to come to an agreement with my own punishment then you say I forfeit my life. You have to explain how I do such a thing by not coming to agreement with an opponent.

ClaytonB:
A single voltage level (in a computer processor or network cable) is meaningless... it does not follow that a sequence of them are, therefore, meaningless. Sequences convey information. Information can convey meaning.

It is not meaningless in so far as it communicates a portion or perhaps all of the information. It is only meaningless if nothing comes to fruition.

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Clayton replied on Wed, Jan 20 2010 8:59 PM

Stranger:

ClaytonB:
It's not ambiguity, it's that Rothbard and Hoppe (and Friedman and Kinsella) cannot get to a point where the punished party voluntarily accepts punishment because they present the failure modes of court trial to be something other than martial contest. Rothbard would say to the convicted, "To refuse to accept double-restitution to the victim, you must deny natural rights and proportionality of punishment" to which the convicted would reply, "OK, so what?" Friedman would say, "To refuse to accept the punishment which has been arrived at by the courts is to say that you do not want to live in an efficient law society" to which the convicted would reply, "OK, so what?" The same goes for Kinsella's estoppel argument. In every case, the convicted must either be coerced (by having the punishment imposed upon him) or he has no reason to accept punishment.

I know for a fact that Hoppe does account for this, which is why he explains that people only appeal for justice to those who have the means to enforce the punishment.

I'd be interested in reading Hoppe's treatment of this issue... point me in the right direction.

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Clayton replied on Wed, Jan 20 2010 10:48 PM

Laughing Man:

ClaytonB:
You contradict yourself here. Property is a system or strategy for assigning exclusive control of physical resources to individual actors. Animals exhibit exclusive control over physical resources, which means that property is very basic, more basic than law which presupposes the capacity for verbal reasoning.

How have I contradicted myself? Through the eyes of a human we can see property enforcement. However, animals have no ability to conceptualize and behave instinctually. Animals have no concept of property or property rights.

OK, let's back up to where I started. First, I began with the issue of disputes. Disputes arise between people. They can settle the disputes through martial contest or verbal reasoning. Since martial contest is so costly, there is a huge incentive to use verbal reasoning (at least, in the case of evenly matched parties). Disputes only arise over real (physical) conflicts. Real conflicts are property conflicts. When I say "property", it should be understood that I'm using this in the philosophical sense as Rothbard or Hoppe do, not in the legal sense that a legal scholar would. Property, in property law, has a very specific meaning that is not what is in view here.

So, in a purely naturalistic sense, what is being called "property" at this point can be thought of chunks of the physical world; more broadly any physical resource, in line with Kinsella's definition of property (property is a physical resource used in an embordering way). If two entities - they need not be human, they could be animals or even pieces of machinery or computers, try to use the same physical resource conflict occurs. This conflict has nothing to do with anger or other distinctly human emotions, it is solely the result of the fact of scarcity. There is only so much physical surface area on the planet so that two vehicles, for example, cannot occupy the same space at the same time. If two vehicles attempt to occupy the same space a conflict, or collision, will occur.

There are extensive protocols in computer systems (I am a computer engineer, so I think about the problem in those terms for my own sake) to avoid memory conflicts. Memory is scarce and (in single-ported memory, which most memory is), only one entity can read or write it at a time. So, if two separate entities try to access the same memory at the same time, conflict results. Protocols which divide up access to memory in time and space are implementing a kind of property in computer memory. The result of these protocols is that they assign exclusive control to one entity over any given piece of memory for any given time slot. Any protocol which permits the possibility of more than one entity accessing the same memory at the same time is susceptible to conflict and, possibly, failure.

Computers and cars have less "concept" of property than animals do. So, the concept I am talking about does not require the entities which are subject to it to be able to conceive of it just as the concept of gravity affects things which have no conception of gravity. Scarcity makes conflict, in the absence of rules for the avoidance of conflict, inevitable. Property is a conflict-avoidance strategy. Animals employ conflict-avoidance strategies. Hence, the use of conflict-avoidance strategies is very basic and does not require verbal reasoning. Human property, in particular, likely arose before humans could speak (though, obviously, not the very specific kinds of "property" which are the subject matter of property law).

ClaytonB:
Caring about an individual human's welfare is beside the point. My point is that we can say why private law is preferable to monopoly law, namely, that it results in an improvement of human welfare by virtue of revealed preference

Well you say one thing then say another. If human welfare is 'beside the point' then why it is shown as an improvement of private law over 'state' law?

The individual human's welfare is beside the point - whether an aggressor is better off or worse off in a private law society is not important. It may be the case that many crimes are punished more severely in a private law society. That's not important. What is important is that humanists must accept that a private law society is preferable to a monopoly law society if they want to consistently profess humanism. If you claim to care for human welfare (humanist) but reject private law in favor of monopoly law, you are either confused, ignorant or lying.

ClaytonB:
This is the same argument by which free exchange can be proven to be superior to coercive central planning. In central planning, there is no way to know whether transactions are improving human welfare (and, by virtue of their being coercive, we can assume that most exchanges are at best zero-sum) but we know that voluntary exchanges improve human welfare because each party to the exchange believed the exchange would improve his/her welfare.

Enforcement of law is not a positive sum transaction.

David Friedman makes a powerful case against you in Law's Order. I recommend you read it, it is available online for free.

ClaytonB:
Well, it is impossible to rewind the clock. The previous state of affairs to a murder cannot be restored. So, all punishments are gratuitous to one degree or another. 

Well murder is more difficult. Obviously if we had something like a death machine like Walter Block mentions in which the life of the aggressor is taken and put in the body of the victim and the victim is now alive then that would be sufficient justice. However, since we don't have such a machine then we are forced to deal with near hits.

IIRC, Block holds the same eye-for-an-eye and tooth-for-a-tooth theory of restitution that Rothbard does. Frankly, I don't think Rothbard is wrong about punishment, so much as he has the cart before the horse... what punishments will pertain in a private law society will not be known until we are already in a private law society. Friedman, in Law's Order, discusses punishments in analogy to prices (I take exception to some of Friedman's analysis on this point, but I think the idea that we can't know what is the right punishment for any particular crime in the absence of a market of competing adjudicators is correct). The real issue I have with Rothbard (and Block) is whether punishment in a private law society should be understood as an individual being forced to "swallow his medicine" or, rather, an individual choosing to suffer punishment X instead of martial contest.

ClaytonB:

"Let us illustrate this point. Suppose that Smith and Jones make a contract, Smith giving $1000 to Jones at the present moment, in exchange for an IOU of Jones, agreeing to pay Smith $1100 one year from now. This is a typical debt contract. What has happened is that Smith has transferred his title to ownership of $1000 at present in exchange for Jones agreeing now to transfer title to Smith of $1100 one year from now. Suppose that, when the appointed date arrives one year later, Jones refuses to pay. Why should this payment now be enforceable at libertarian law? Existing law (which will be dealt with in greater detail below) largely contends that Jones must pay $1100 because he has “promised” to pay, and that this promise set up in Smith’s mind the “expectation” that he would receive the money.

     Our contention here is that mere promises are not a transfer of property title; that while it may well be the moral thing to keep one’s promises, that it is not and cannot be the function of law (i.e., legal violence) in a libertarian system to enforce morality (in this case the keeping of promises). Our contention here is that Jones must pay Smith $1100 because he had already agreed to transfer title, and that nonpayment means that Jones is a thief, that he has stolen the property of Smith. In short, Smith’s original transfer of the $1000 was not absolute, but conditional, conditional on Jones paying the $1100 in a year, and that, therefore, the failure to pay is an implicit theft of Smith’s rightful property." [Emphasis added]

That is the implicit contention of the law, the propounding of the good ie. morality. Why is murder illegal? You cannot answer without a value statement.

I don't see how your reply refutes my claim that Rothbard specifically refutes the position that the purpose of the law is to enforce morality. That's a hyper-conservative political position, it is not libertarian. No libertarian philosopher that I'm aware of holds that position.

ClaytonB:

*shrug

If the troublemaker is dead, he can't make any more trouble. It was his own choice to opt out of civilized law and live according to the law of the jungle. In the jungle, might does make right.

Just because one doesn't agree to the punishment does not infer that death is the only acceptable outcome.

Agreed! That's why even direct retaliation must be proportional. But since you didn't get any input to the form that the retaliation would take, it may very well be far more severe than if you had gone to court in the first place. An ounce of prevention is worth a pound of cure. Smile

ClaytonB:
Look up his chapter on punishment in Ethics of Liberty.

Can you be more specific?

ClaytonB:
Not really. In this particular instance, that is not the question. In other words, if Bob steals Alice's purse and refuses to go to court and, in the course of events, Alice's PDA kills Bob, there is no question of whether that death was legitimate or illegitimate until, say, Bob's parents sue the PDA. Bob refused to take the dispute to a court for peaceable settlement so Alice had no recourse but to brute force (through the agency of her PDA). Whether that force was justifiable is now a separate question requiring a separate court case.

You lack proportional justice. Just because Bob steals a purse does not infer that Bob forfeits his life. Your system lacks any civility and would degenerate into a kill or be killed system of law. It also lacks 'innocent until proven guilty.'

I'm not advocating the action in my illustration. I'm just trying to explain how I think the mechanisms of law in a private law society would operate with a concrete illustration.

ClaytonB:
Yes, a stipulated agreement means both parties voluntarily agreed to the terms of the agreement. Since, in my view of law, the only reason the parties are in court is because they both wanted to be, of course the aggressor must accept the terms of the resulting agreement.

And if I refuse to come to an agreement with my own punishment then you say I forfeit my life. You have to explain how I do such a thing by not coming to agreement with an opponent.

I think it depends on the "market" for law services. If may emerge, in customary (common) law, that if you ignore six summons over a period of one year to a court hearing for a violent crime, you can be killed, then, yeah, the "punishment" for ignoring six summons over a period of one year to appear in a court for committing a violent crime could be death. That would be a pretty good incentive to get your butt into court if someone is accusing you of a violent crime, to defend yourself.

To translate this into concrete terms: Bob attempts to rape Alice in a dark alley. By a stroke of luck, Alice escapes and miraculously manages to get a photo of Bob's face at the crime scene and she gets a rape kit done immediately to prove he was attempting rape. Alice's PDA sends Bob a summons to appear in court for trial regarding the incident. Bob knows that Alice has basically conclusive proof that he tried to rape her. If he appears in court, he will certainly be punished. He can either appear or ignore the summons (or run away). Since he will certainly be punished if he appears, he decides to ignore the summons. Alice's PDA sends summons after summons along with clear explanations of the possible consequence of ignoring the summons, a bit like a collections agency does. Finally, when Bob's case has met the customary law criteria for grievous failure to appear in court to defend himself, and armed with the evidence that Bob did, in fact, attempt to rape Alice, Alice's PDA gives a green light to put a bounty on Bob's head. The specifics of customary law will determine whether the bounty is for Bob dead or Bob alive. Let's say that customary law is that, in the case of rape accusations, death is appropriate. Bounty hunters go out with live ammo, one of them finds Bob, kills him, and brings back proof that he is dead to Alice's PDA. At this point, Bob's parents, who have always held that Bob was innocent and could not understand why Bob would not just go to court to clear his name, bring suit against Alice's PDA. Since the accusation is murder, the suit actually accuses everyone who conspired to kill Bob, from Alice to the chain of individuals who authorized and performed Bob's execution. To defend itself, Alice, and the bounty hunter(s) who are accused, Alice's PDA will bring the evidence of rape and proof of its many attempts to summon Bob to a court to defend himself (proof of service would be very important in this situation). When the court finds that Alice has ample evidence that Bob did, in fact, try to rape her and that Bob was, in fact, summoned many times to appear in court to answer the accusations, after many attempts to resolve the matter in a non-violent manner, Alice's PDA hired a bounty hunter to directly retaliate against Bob in a manner consistent with customary law, the court will rule against Bob's parents and in favor of Alice's PDA. Every effort was taken to give Bob a chance to clear himself of the accusations which had good, solid evidence to back them up but he refused. Alice and her PDA gave Bob the customary amount of summons to court. When all attempts to resolve the matter peaceably failed, only then was Bob killed. Bob's death, in this fictional scenario, would be justifiable violence.

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Clayton replied on Thu, Jan 21 2010 4:17 AM

Here is a great example, linked from the LRC blog today, of the distinction between the statist view of law and a private law view.

Quote:

Lord Judge said the combination of events which culminated in the serious injury suffered by Salem were "highly unusual".

He added; "This is not, and should not be seen as, a case about the level of violence which a householder may lawfully and justifiably use on a burglar.

"It is also clear that the violence to which Salem was subjected was not designed to ensure that he was detained and somehow kept pending the arrival of the police to be handed to them.

"So far as both these appellants was concerned the purpose of their violence was revenge - to teach at least one of the burglars a lesson... such violence is not lawful and no one at the trial suggested that it was."

Mr. Hussain was imprisoned for, essentially, taking matters into his own hands. But what is actually wrong with that? Does the identity of the jailer or executioner matter? In a private law society, Mr. Salem's advocates (e.g. his parents or family) would have brought suit against Mr. Hussain for a violent crime. Mr. Hussain could show that Mr. Salem did, in fact, burglarize and invade his home and imprison and terrorize him and his family.

Personally, I believe Mr. Salem got less punishment from Mr. Hussain than he actually deserved because the invasion of Mr. Hussain's home and, particularly, the restraint of Mr. Hussain and his family was a threat of commission of the gravest of crimes, murder of an entire family. The most brutal crimes known to man usually begin in this way, with the man of the house restrained while his wife and children are raped and murdered before his eyes followed by himself. Mr. Hussain had good reason to believe that this was the crime with which Mr. Salem had threatened him and had Mr. Salem, in fact, committed such a crime, death would be a perfectly proportional punishment. Mr. Hussain did not beat Mr. Salem to death, only to the point of brain damage. If Mr. Hussain's retribution were too severe, he should be punished for that, but not for self-administration of the retribution against Mr. Salem.

Following the principle - which I will attribute to Bastiat but I think is not original to him - that the collective can have no rights that the individual does not have, if the individual may not seek revenge, neither may the collective. Since punishment is retribution, the collective cannot punish. But the Lord Judge meted out a punishment (revenge) on Mr. Hussain, contradicting himself. The statist law monopoly is inherently duplicitous.

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ClaytonB:
So, in a purely naturalistic sense, what is being called "property" at this point can be thought of chunks of the physical world; more broadly any physical resource, in line with Kinsella's definition of property (property is a physical resource used in an embordering way). If two entities - they need not be human, they could be animals or even pieces of machinery or computers, try to use the same physical resource conflict occurs. This conflict has nothing to do with anger or other distinctly human emotions, it is solely the result of the fact of scarcity. There is only so much physical surface area on the planet so that two vehicles, for example, cannot occupy the same space at the same time. If two vehicles attempt to occupy the same space a conflict, or collision, will occur.

Well firstly, computers and animals cannot conceptualize the means of achieving their ends and decide which means best serves them. Secondly, you are neglecting my point about animals inability to recognize property. Their actions are strictly instinctual. Third, computers cannot act. They are objects. 

ClaytonB:
There are extensive protocols in computer systems (I am a computer engineer, so I think about the problem in those terms for my own sake) to avoid memory conflicts. Memory is scarce and (in single-ported memory, which most memory is), only one entity can read or write it at a time. So, if two separate entities try to access the same memory at the same time, conflict results. Protocols which divide up access to memory in time and space are implementing a kind of property in computer memory. The result of these protocols is that they assign exclusive control to one entity over any given piece of memory for any given time slot. Any protocol which permits the possibility of more than one entity accessing the same memory at the same time is susceptible to conflict and, possibly, failure.

You are personifying a piece of equipment. Protocols are the result of human action, not computer action. 

ClaytonB:
Computers and cars have less "concept" of property than animals do. So, the concept I am talking about does not require the entities which are subject to it to be able to conceive of it just as the concept of gravity affects things which have no conception of gravity. Scarcity makes conflict, in the absence of rules for the avoidance of conflict, inevitable. Property is a conflict-avoidance strategy. Animals employ conflict-avoidance strategies. Hence, the use of conflict-avoidance strategies is very basic and does not require verbal reasoning. Human property, in particular, likely arose before humans could speak (though, obviously, not the very specific kinds of "property" which are the subject matter of property law).

Actually they have no concept of property because neither animals or objects have the ability to conceptualize. Only humans do. And your point about animals having the ability to engage in 'conflict avoidance strategy' presupposes that an animal is capable of formulating a set of means to achieve their end. It is not possible. Animal behavior is purely instinctual. Mice do not set elaborate traps for cats in order to defend themselves. Let's leave the cartoon behavior for Saturday morning.

ClaytonB:
What is important is that humanists must accept that a private law society is preferable to a monopoly law society if they want to consistently profess humanism. If you claim to care for human welfare (humanist) but reject private law in favor of monopoly law, you are either confused, ignorant or lying.

And some are capable of lying, cheating, being in a purposely confused and ignorant state. 

ClaytonB:
David Friedman makes a powerful case against you in Law's Order. I recommend you read it, it is available online for free.

Well he comes on here sometimes so I will be sure to ask  him how he thinks restitution actually leads to a positive sum especially after a zero sum transaction which a rights violation must be.

ClaytonB:
I don't see how your reply refutes my claim that Rothbard specifically refutes the position that the purpose of the law is to enforce morality. That's a hyper-conservative political position, it is not libertarian. No libertarian philosopher that I'm aware of holds that position.

Well first, I pointed out that Roderick Long gives this definition. The law is based on respect for rights and rights are morally enforceable obligations. Roderick Long is a philosopher and a libertarian so you know are aware of a libertarian philosopher who holds this position. Secondly, I honestly do not know why Rothbard thinks the law isn't concerned with morality. Perhaps he thought it was something like 'you can make people good Christian followers.' Clearly the law is concerned with good, acceptable behavior and therefore is at its base a moral system.  

ClaytonB:
Agreed! That's why even direct retaliation must be proportional. But since you didn't get any input to the form that the retaliation would take, it may very well be far more severe than if you had gone to court in the first place. An ounce of prevention is worth a pound of cure. Smile

If someone pulls a weapon on you then by all means defend yourself. However, your system seems to assume that if I were to steal a purse then it would be legitimate for the victim to shank me with a knife. You have not objected to this characterization nor have you really address my retort about the immorality of such a system so far. I will have to read the rest of the response to see if I get an answer. 

ClaytonB:
I'm not advocating the action in my illustration. I'm just trying to explain how I think the mechanisms of law in a private law society would operate with a concrete illustration.

That doesn't address my points concerning proportional justice and 'innocent until proven guilty.' You seem to be shrugging your shoulders over the system you have built while saying 'Well it's not my idea.'

ClaytonB:
I think it depends on the "market" for law services. If may emerge, in customary (common) law, that if you ignore six summons over a period of one year to a court hearing for a violent crime, you can be killed, then, yeah, the "punishment" for ignoring six summons over a period of one year to appear in a court for committing a violent crime could be death.

So tell me, why is it justice to coerce people into appearing at a trial. I mean that is essentially what you are propounding. Why not make it  'If you don't show up to your first summons, you get put to death'? 

ClaytonB:
That would be a pretty good incentive to get your butt into court if someone is accusing you of a violent crime, to defend yourself.

So you are advocating coercion before the guiltiness of the party has been established. Is or is not the presumption of innocence apart of common law? 

ClaytonB:
Finally, when Bob's case has met the customary law criteria for grievous failure to appear in court to defend himself, and armed with the evidence that Bob did, in fact, attempt to rape Alice, Alice's PDA gives a green light to put a bounty on Bob's head.

Well this is a different tune. If Bob's guiltiness has been established the justice can be enacted. To finish off the rest of this point, Bob's parents could sue the protection agency and/or Alice for cruel punishment. It could be argued that the death sentence for a rapist is not proportional to the crime he committed. 

'Men do not change, they unmask themselves' - Germaine de Stael

 

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scineram replied on Thu, Jan 21 2010 8:40 AM

Laughing Man:
Well firstly, computers and animals cannot conceptualize the means of achieving their ends and decide which means best serves them. Secondly, you are neglecting my point about animals inability to recognize property. Their actions are strictly instinctual. Third, computers cannot act. They are objects. 

Like the dogs that ride the metro?

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AJ replied on Thu, Jan 21 2010 11:18 AM

trulib:

I'm trying to square this with what Hasnas says, quoted in my previous post:

"Over time, these rules become invested with normative significance and the members of the community come to regard the ways in which the rules permit them to act at their pleasure as their rights.  Thus, in the state of nature, rights evolve out human beings' efforts to address the inconveniences of that state.  In the state of nature, rights are solved problems."

By "normative significance", does he mean

  1. That the members of the community come to regard some claims as (objectively) ethical and some as unethical?  Or just...
  2. That the members of the community come to regard some claims as likely to be respected and some as likely not to be?

I think Hasnas means that people come to feel entitled to such claims, and hence feel that certain rules "just ought to be." He's seeing normativity as arising from the well-known tendency of people to feel entitled to treatment that they enjoy for a period of time.

If you fix your neighbors' computers every time they break, for free, then one time when they really needs your help and you say you are busy, they might get angry. They've come to have a sense of entitlement about enjoying your services. This is an unfortunate aspect of human nature, but I'm sure we've all experienced it. If that can happen over few weeks' time (in fact I estimate it sometimes happens within about 20-30 seconds of meeting someone), imagine how it is when you grow up with a certain arrangement, or it lasts for several generations. Here is Hasnas:

John Hasnas:
Over time, security arrangements and dispute settlement procedures that are well-enough adapted to social and material circumstances to reduce violence to generally acceptable levels become regularized. Members of the community learn what level of participation in or support for the security arrangements is required of them for the system to work and for them to receive its benefits. By rendering that level of participation or support, they come to feel entitled to the level of security the arrangements provide. After a time, they may come to speak in terms of their right to the protection of their persons and possessions against the type of depredation the security arrangements discourage, and eventually even of their rights to personal integrity and property.

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About 5 hours left on the competition.

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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ClaytonB:
At some point in human history, the State took an interest in monopolizing the courts. The fundamental exchange is the same as that described by Hoppe regarding the monopolization of intellectuals. The State grants its preferred jurists a monopoly on the production of dispute-resolution services in exchange for the courts’ loyalty in disputes involving the State itself.

Using Hoppe's definition of the State, your first sentence here makes no sense.  This organization that took an interest in monopolizing the courts was not a State until it accomplished this.  Before then, it was a "pre-State", which is really just a gang of thieves with ambition to become a State.  The alliance with the intellectuals may occur before the State is established.  What is certain is that the State needs the intellectuals to maintain that status, lest it become apparent that they are really just a highly-organized gang of thieves.

ClaytonB:
The state guards its monopoly on dispute-resolution as jealously as it guards its monopoly on the use of force or its monopoly on the coercive collection of revenues.

The State does not have a monopoly on force per se but it has a monopoly on deciding when and what force is jusified/legal/legitimate; this is simply a re-statement of the State's monopoly on dispute-resolution.  This monopoly is possible only because the majority of the population accept that the State is the only organization which should make this decision - i.e. that any other organization declaring when and what force is legitimate, and carrying out force outlawed by the government, is criminal, whereas the State is sovereign.

ClaytonB:
Hoppe’s argument suggests that there are two conditions for the existence of interpersonal conflict: more than one person and scarcity. There seems to be many forms of conflict which do not originate from scarcity, such as debates over metaphysics or religion, which may even go to fists. However, law is concerned only with real (physical) conflicts. Until a verbal argument goes to fists, it is not a real conflict. Law, in a private law society, is not concerned with resolving moral or metaphysical disputes[5].

I see no particular reason why law should be unconcerned by verbal disputes about metaphysics or religion.  It is not inconceivable.  Slander is a law forbidding certain verbal acts.  There are good reasons to believe slander would not likely be a law in a private law society, but it just might. 

I don't see why a Christian sect couldn't live under a law system where uttering the words "God doesn't exist" is, in itself, a crime, if that's their preference.  This is not to say however that law relates to more than "physical" conflicts, because a "verbal" conflict could be thought of as a "physical" conflict.  It all depends where property boundaries are drawn.  The Christian considers the entrance of a pattern of sounds into his eardrum as the same kind of violation of his boundaries as a knife being stabbed into his hand.  So the dispute between the atheist and the Christian is a "physical" violation, when boundaries are drawn in this way.

ClaytonB:
As an example of a real dispute, consider the case of a traffic accident.

What makes this a "real" dispute?  Can you give an example of a dispute which is "not real"?

ClaytonB:
I will provide a working definition of property but I will not attempt to justify my definition here. Stephan Kinsella, in an article discussing the difference between intellectual property and radio waves, says the following:

… every scarce resource–things that can be contested; rivalrous things; resources that have exclusive use, so that use by me excludes use by you, and so on–is assigned an owner; that owner is the person who first appropriated or used the property in an embordering way–that is as an owner. It’s the first person to erect publicly visible boundaries that others can respect and see; he has a better claim to the resource than any latecomer.

In this first sentence, Kinsella jumps from a useful general definition of property, over to asserting his preference for how property should be assigned, i.e. which claims in a dispute he considers are valid and which are not.  His preference, of course, is for libertarian principles to be used to settle disputes.  But the libertarian principle of homesteading/embordering ("first use") is only one way of determining who should be the "first owner".  For example a law may assert that a certain class of goods - like heroin - always belongs to a particular organization (like the State), as soon as it comes into existence.  Perhaps this sort of rule for determining "first owner" is unlikely to come about in private law, and its certainly repulsive to a libertarian, but such a principle of law is conceivable

ClaytonB:
Any property must be physical because non-physical objects are not scarce (real conflicts cannot arise). Property is not necessarily tangible. In other words, you can own physical matter (dirt, water, rocks, paper, etc.) or energy (for example, electrical energy) but you cannot own ideas or patterns, such as a number or an image. Property is the exclusive claim to the use and disposal of a particular, scarce, physical object, defined in space and time. You cannot own a general class of physical objects, such as, “I own all ceramic dinner plates.” You may happen to own all members of a class of physical objects, such as, “I own all of Rembrandt’s self-portraits”, but you cannot own them as a class qua class, that is, you cannot claim, “Because that is a self-portrait of Rembrandt, I own it.” Because classes are ideas and ideas are not scarce, so-called “intellectual property” is not property at all. Intellectual property is an invalid claim of ownership of a class of physical objects, for example, all objects bearing a certain mark or conforming to a certain pattern.

All this is true in a libertarian framework, but not when the concept of property is considered more generally.  Laws assigning ownership of classes of goods, including intellectual property, are conceivable and there is no a priori reason why such laws could not exist in private law.  (There are a great number of practical and economic reasons to think IP in private law is unlikely or even impossible).  Why could a law that all ceramic dinner plates belong to X not conceivably exist in private law?

ClaytonB:
I can give no good reason why I have rights to exclusive use of some portion of the Moon or a portion of Marie Byrd Land. So, no portion of the moon or Marie Byrd Land is my property.

The issue of who owns the moon is irrelevant of course until a dispute over it's use arises.  You could assert a claim on the moon, and then take NASA to court for trespassing.  Who knows what rule the court will uphold?  A libertarian court would obviously say your claim is not legitimate and NASA's claim is.  But a non-libertarian court may rule the other way.  If the general view of society is that your claim is stronger (maybe you are well-known and recognized as "Clayton, God of the Moon"), a court may uphold your claim.  Why not?

ClaytonB:
Property conflicts arise as a result of unilateral changes of property boundaries.

Correct.

ClaytonB:
Conflicts also arise as a result of threats, even threats which are not malicious. Presenting risks to the lives and property of others is a threat of unilateral property line redrawing. The pugnacious bar brawler who starts waving his fist in someone’s face is also threatening unilateral redrawing of a property line. Threats are as actionable as completed acts of unilateral property line redrawing.

Do you mean to say that threats are not a "property conflict" (i.e. they are not a unilateral change of property boundaries) in themselves?  I would disagree with this.  I would say threats are a property conflict in themselves, e.g. a bar brawler shaking his fists at me is, in itself, a unilateral change of property boundaries.  There is no necessary distinction between threats and "actual acts" of violence; risk doesn't come into it.  It all depends how property boundaries are drawn as to whether any particular shaking of fists is sufficient for a court to consider it a property violation.

ClaytonB:
Alpha male behavior can likely be thought of as a conflict-avoidance scheme where most serious conflicts only occur with the alpha male instead of being all-against-all. Only a single contest is required to settle the matter of who will have the benefits of being the alpha male for long stretches of time.

Great insight.

ClaytonB:
Friedman presents the case that anarchic law leads to the best or most efficient outcome for society. That is, Friedman is arguing from the point of view of social justice or social welfare. But this approach assumes that the individual cares about social welfare.

This does not follow.  Friedman writes to try and convince people that anarchic law is a good idea, and chooses to promote the idea by referring to social justice and social welfare.  He assumes his reader cares about these things, so that they will support the idea.  He does not assume that when the idea is implemented, it requires disputants to care about these things.  In Friedman's model, disputants are choosing to use courts out of self-interest.

ClaytonB:
Rothbard argues from the point of view of natural law

I agree that Rothbard's conception of law is unsatisfactory.  He came up with a brilliant set of principles and arguments for what the law should be, in his opinion (and mine), but failed to consider broader and more varied conceptions of law and property.

ClaytonB:
an aggressor usually will not attack unless he reasonably believes he can get away with the attack in the first place. That is, he has already calculated that he can win a martial contest with the victim.

"get away with" is not equivalent to "win a martial contest with".  The aggressor may have calculated that he will not be detected or caught.

ClaytonB:
Stephan Kinsella follows what he terms an “estoppel approach” to argue that a party to a non-violent dispute must accept violence against himself in proportion to that which he has already used against his victim because he is “estopped” by his past actions, that is, he would be committing what Hoppe calls a “performative contradiction” to argue otherwise. This argument is deeply unsatisfying, not least because it is easy to wriggle out of Hoppe’s performative contradiction by accepting that one has acted as a hypocrite. So, no one would ever commit a crime worse than hypocrisy, which does not seem to me to be a very serious crime, if it is a crime at all. However, Kinsella’s approach falls on the same criterion that Rothbard’s, Friedman’s and Hoppe’s approaches fall – it is not useful to parties in a real legal dispute. One side need only reject the doctrine of estoppel[7], which is not a very large leap, since the doctrine is not even in use in modern law, as Kinsella himself admits.

This is a misrepresentation of what Kinsella is trying to do with estoppel theory.  As I understand it, the scope is smaller: it is an argument for why libertarian courts should base their stipulated resolutions on retaliation, rather than restitution.  That they should aim "make the aggressor suffer to the extent that his victim suffered (to the extent this is possible)", rather than "make the victim whole again (to the extent this is possible)".  Kinsella is addressing his argument to libertarians, not to non-libertarians, and certainly not to criminals.  He is giving reasons why libertarians should not feel unethical about use retaliatory force against an aggressor, beyond the point of restitution.  (Roderick Long and Geoffrey Allan Plauche, for example, maintain that retaliatory force is un-libertarian).

ClaytonB:
The third category of justifiable violence is retaliation. However bad the retaliatory violence stipulated in the agreement may be (let’s say, a public whipping of 40 lashes), the punished party preferred that resolution to martial contest. Hence, we arrive at a conclusion which has evaded libertarian treatments of punishment: retributive violence can constitute an improvement in social welfare as evidenced by revealed preference.

I don't see why it should matter, to a libertarian, why violence is becomes justifiable just because it is administered by a court as opposed to in a "martial contest".  An improvement in social welfare is not a good reason.  Surely the question for a libertarian qua libertarian is: what amount of retaliatory force is justifiable, if any?  A bubble-gum thief may choose to cooperate with a court because a martial contest would mean death and the court's punishment for bubble-gum theft is "merely" torture.  Does this make torture a justifiable use of force in retaliation to bubble-gum theft?  Just because it was administered through "non-violent means (a court)" or improves social welfare?  Estoppel theory, on the other hand, would say no it isn't, because it is far from the principle of "equal suffering".  Long and GAP would of course argue that no retaliatory force is justifiable.

If your conclusion is correct, it is interesting to an anarchist qua anarchist though because it means in an anarchic system of law, with courts competing for customers, retributive violence may become the common principle used by the courts when they are stipulating resolutions.

ClaytonB:
Can I be fined for driving past a stop sign on private property? The act of driving through the stop sign does not, in itself, constitute a violation of any of the property rights of the owner of the land on which the stop sign is situated since I am operating my property (the vehicle) as I see fit.

Well it could.  You are using his property (the road) and he has specified the rules that you must follow.  In other words, he has drawn a set of boundaries over his property, and the Stop sign indicates that if you do not stop, you are unilaterally changing his property boundary.  The contract (implicit as it may be) you have with him stipulates that going through his Stop sign will be considered a property violation.  If he chooses to he can fine you, and if you go to court, the court will have to decide whether the fine is justifiable or not.

ClaytonB:
Since the court, in a private law society, is only selling its services as a mutually agreed-upon decision-maker, the rules which emerge governing what is justifiable violence will be those decisions which have in the past succeeded in settling disputes. That is, case law emerges out of the chaos of innumerable disputes and attempted resolutions of those disputes. Both the natural law and positive law approaches agree that a body of precedents will emerge from non-violent resolution of real conflicts in a private law society and that it is this body of decentralized dispute-resolution which becomes law per se. Rights and general laws emerge from the pattern of successful resolution of past real conflicts by non-violent means, just as common law developed in England and the US prior to the creation of legislatures.

Well said, especially the part I bolded.

Excellent post overall.  Good work.

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trulib, Clayton win.  Laughing Man honourable mention for two strong 3rd place performances.

I'll PM you guys shortly.  Keep the discussion going.

"When you're young you worry about people stealing your ideas, when you're old you worry that they won't." - David Friedman
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On this forum, my word.

Freedom of markets is positively correlated with the degree of evolution in any society...

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Juan replied on Fri, Jan 22 2010 12:55 AM
What is law? Frederic Bastiat, in his treatise The Law, defines law as the collective use of force.
Very first sentence. Fail!

"The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all."

February 17 - 1600 - Giordano Bruno is burnt alive by the catholic church.
Aquinas : "much more reason is there for heretics, as soon as they are convicted of heresy, to be not only excommunicated but even put to death."

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Clayton replied on Fri, Jan 22 2010 2:45 AM

Juan:
What is law? Frederic Bastiat, in his treatise The Law, defines law as the collective use of force.
Very first sentence. Fail!

"The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all."

Um, you highlighted the wrong sentences, "It is the substitution of a common [i.e. collective] force for individual forces." Bastiat's observation that the group can have no rights or powers which the individual does not is foundational. I did not specifically cite it in my article and that is an oversight I will correct, in the section on justifiable violence (it is a common myth that the group can justify uses of violence which an individual cannot justify, this is false).

I do not disagree with Bastiat. Do you feel that I have misquoted or abused him?

Clayton -

http://voluntaryistreader.wordpress.com
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