Is "law and economics" really rad or just really awesome? I mean, it's way more brilliant than argumentation ethics, natural law, or other humbug deontologies.
[Suppose you] live in a state where the most severe criminal punishment is life imprisonment. Someone proposes that since armed robbery is a very serious crime, armed robbers should get a life sentence. A constitutional lawyer asks whether that is consistent with the prohibition on cruel and unusual punishment. A legal philosopher asks whether it is just. An economist points out that if the punishments for armed robbery and for armed robbery plus murder are the same, the additional punishment for murder is zero—and asks whether you really want to make it in the interest of robbers to murder their victims. (David Friedman)
"I'm not a fan of Murray Rothbard." -- David D. Friedman
I'm not very familiar with law and economics. All I've read were the 'basics' if you will (Coase theorem). What do you suggest?
Neoclassical, I agree obective morality doesn't exist, but don't you agree the logical implications of argumentation are a good basis for those willing to obey reason in a libertarian society?
In that sense I think argumentation ethics are extremely useful, I wonder if, how and why you disagree.
PS I think the quote is awesome rather than sad. This kind of economic thinking can be "cold" but it's hard to argue with.
Argumentation ethics are really just kind of silly.
Consultant, I don't believe there are "logical implications of argumentation." I don't believe engaging in argument necessarily presupposes you having full control over your own body in all circumstances.
Don't get me wrong: I prefer a community where all persons are treated as autonomous agents and where "coercion" (as commonly construed by Austro-libertarians) is entirely absent.
P.S. I didn't say "sad," I said rad! Like you, I believe economic reasoning is all about having a "hard head, soft heart."
The fact of the matter is that the NAP, self-ownership and property rights are not axoimatic in that they are not irreducable first principles. They are derived from and intertwined with other principles. They cannot be reasonably substantiated without reference to other concepts, and hence they cannot be substantiated as axoimatic goods "in themselves".
This.
justinx0r:I'm not very familiar with law and economics. All I've read were the 'basics' if you will (Coase theorem). What do you suggest?
Hands down, the best book is the one I quoted intitially: David Friedman's Law's Order.
Awesome. I love me some David Friedman.
Here's a Google Authors talk David Friedman did that touches on this subject.
I think that Friedman failed to sufficiently distinguish between customary (emergent) law and statutory (dictated) law. I don't even consider the latter "law" at all, except in the colloquial sense. Law arose through the verbal resolution of potentially violent disputes.
I think economics tells us some useful things about law but I think that we need a "praxeological" re-writing of the foundations of law.
From an essay I'm writing in the background:
There was a time before human law. If we go far enough back in our evolutionary ancestry, we reach a point where our ancestors were not yet verbal. Since the ability to speak and engage in complex, abstract, rational argument is a precondition for law, these ancestors could not have had law. At some point, our ancestors acquired the ability to speak. At some later point, law emerged.
Of course, even before our ancestors could speak, they could get into disputes. Disputes occur between other animals frequently. Without the ability to speak, there are fewer ways in which to resolve disputes. Usually, dispute resolution between animals involves intimidating displays of force, threats, and violent or even deadly conflict. Disputes are costly and risky so, even in the non-verbal animal kingdom, there are dispute avoidance mechanisms. Birds mark their territory with sticks, dogs with urine, and so on. The behavior of establishing publicly visible borders is important because, as long as others see and abide by those borders, disputes can be avoided.
When a dispute arose between our verbal ancestors who had not yet developed law, they had the option of talking about the dispute. If, after talking (perhaps shouting), they did not engage in physical violence, they had resolved their dispute verbally. People who could resolve their disputes verbally would incur less costs and risks than those who could not and, consequently, would enjoy an advantage in survival and reproduction. However, we know from long experience that it is very difficult for two parties to resolve any serious dispute unaided since each party to a dispute tends to distort the facts and engage in special pleading in his own favor. One solution to this problem is to ask a disinterested third-party to hear the dispute and offer an opinion. People who were willing to bring their disputes to a third-party were more likely to resolve their disputes without the cost and risk of violent conflict and enjoyed an advantage in survival and reproduction over those who did not.
By the time of the earliest written history, law had already emerged – sometime between the first verbal arguments and the dawn of human history. Governments, too, had already emerged by the dawn of human history. Because most people identify “law” with national, statutory law, there is a tendency to presume that law emerged alongside or even after government emerged. But we can be confident that law emerged before government did because not all societies had or have government but all societies have law. If we take the collection of taxes or the existence of some kind of compulsory obligation to a chief or lord to be the sign of the existence of a government , then some tribal societies did not have governments even though they all had laws.
Hence, law is temporally antecedent to government. This is an important point because it means that it is possible to have law without government, a point which, it seems, most people today do not believe to be true. More importantly, if law is antecedent to government, then when governments emerged on the scene, they emerged in a pre-existing legal context. Today, we tend to identify dispute-resolution and the creation of law with government courts and legislation.
For the sake of simplicity, I will take the criterion for saying that government exists in a particular society to be the collection of taxes. Taxes are not collected in the manner of alms or religious offerings. Taxes are collected coercively. Superficially, this makes government no different than any other criminal organization which coercively expropriates property. But what makes governments unique among criminal organizations is their social currency or legitimacy which makes their coercion socially irresistible. Payment of taxes, unlike cooperation with criminal robbery, is seen by the public as a moral or legitimate legal duty. Tax evasion is itself considered a crime in the eyes of most people, at least in Western nations.
Something important happened between the time when law first emerged and the time of the advent of government. Prior to the emergence of government, disputes were resolved between disputants, possibly with the assistance of a third-party. Family relations and tribal or clan customs likely played a dominant role in the nature of law at the time. Law consisted of a body of norms which had emerged from use as effective rules for the final settlement of disputes without further conflict. The particular features or attributes of specific law systems are not as important as the general character of law – emergent and voluntary. Law was the alternative to violent conflict so participation in law was not coercive. It was simply usually a better alternative than outright violent confrontation.
After the emergence of government, the character of law changed. Law not only emerged through case history, it was also dictated by the State. Participation in law was either coerced or prohibited in many instances. I will argue that dictations fail to meet the criterion of being law since they do not emerge from the resolution of disputes. The difference applies to whether one should follow a law out of conscience or merely prudence. Decent people do not murder one another or wantonly pillage each other's houses not only because it is illegal to do so but because it is simply immoral. Bastiat said, "When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them." (The Law)
While I think Friedman's contributions to the economic analysis of law are useful (and, in many cases, brilliant), I think there is a lot more that remains to be done on the subject.
Clayton -
Clayton, your differentiation between "emergent" and "dictated" law seems remiscient of Hayek's categorization of nomos and taxis; if you haven't read his trilogy titled Law, Legislation, and Liberty already, then I think it'd be right up your league.
Back to Friedman, his anarcho-capitalistic assertion is that privatized law-making would be a market process, and hence as "emergent" and self-organizing as any other free enterprise.
Radically awesome. Who ever said peanut butter and chocolate wouldn't mix was a fool.
Yes, my ideas on this definitely originate from Hayek. I haven't read his book (money is the obstacle!) but that is one of the things I have to do before I will consider my article on this subject to be finished.
True. However, he often analyzes law in ways that are not appropriate for market processes. Even the quote you provided from the opening of his book Law's Order, speaks of "us" asking "ourselves" whether "we" want to give robbers the incentive to murder their victims. I understand he is simply making a point that is well-understood in economics - that the intentions of policies do not automatically translate to outcomes - in the realm of law. Nevertheless, I found the pattern of thinking about what "we" want from law, throughout the book, to be a detraction from its value. The book is incredibly important for criticizing policies and judicial practices in the modern system of legislation and monopoly law. But, personally, I want to see a more thorough rewriting of the book on law itself.
Believe me, Hayek is on my to-read list. Confound whoever it is that won't license his works to be published by Mises.org!!!
They have some Hayek books here: http://www.fulldls.com
Why anarchy fails
Is "law and economics" really rad or just really awesome? I mean, it's way more brilliant than argumentation ethics, natural law, or other humbug deontologies. [Suppose you] live in a state where the most severe criminal punishment is life imprisonment. Someone proposes that since armed robbery is a very serious crime, armed robbers should get a life sentence. A constitutional lawyer asks whether that is consistent with the prohibition on cruel and unusual punishment. A legal philosopher asks whether it is just. An economist points out that if the punishments for armed robbery and for armed robbery plus murder are the same, the additional punishment for murder is zero—and asks whether you really want to make it in the interest of robbers to murder their victims. (David Friedman)
You've made a fatal error here: You've assumed, apodictically, that murder is undesirable. You should know better :3
Furthermore let's take this thought experiment a bit farther, shall we? Since murder is already punished by a life sentence, that means that, once a person has already murdered, the punishment for any other additional crime is 0. Should we really give murderers an incentive to murder as many people as possible?