From this
Prateek Sanjay:LibertyStudent, I am suddenly quite curious about what you have learnt in law that demonstrates that laws are not meant to provide justice. Are there any interesting case laws that come to your mind? I study corporate law in college myself, and the law is often self-contradictory and just a rudimentary way of getting complicated problems out of the way, but that is a matter of results, not intentions.
I study corporate law in college myself, and the law is often self-contradictory and just a rudimentary way of getting complicated problems out of the way, but that is a matter of results, not intentions.
I have not learned anything "in law". As you said, what is called law now, which is usually statutory law, is contradictory, without jurisdiction, and based almost exclusively on violence.
We need to get to basics with this.
What is law? What is justice? Until we can define those two things, its impossible to speak intelligently about whether legal systems work or can be optimized.
Ah, thorny. Perhaps we could consider the law as those social rules aimed at preserving a human society from anti-social elements?
As for justice, that is too subjective to furnish a decent definition, at least for me.
Merlin:As for justice, that is too subjective to furnish a decent definition, at least for me.
The law is the process of creating, enforcing, and adjudicating rules operative against every individual.
Justice is a situation where all interests of all relevant parties are reconciled.
Are these bad definitions and should they be more specific? I invite everyone's criticism.
Prateek Sanjay:Are these bad definitions and should they be more specific? I invite everyone's criticism.
One is bad, the other I think is quite good.
Prateek Sanjay:Justice is a situation where all interests of all relevant parties are reconciled.
This one I quite like. Justice is restorative.
Prateek Sanjay:The law is the process of creating, enforcing, and adjudicating rules operative against every individual.
This one is very problematic. First of all, there is no "the law". Every territorial monopoly has a "the law", there is no universal law for all people, everywhere.
Second, where does the authority come from to create, and jurisdiction to enforce and adjudicate?
I don't think that's the point tho. I think Prateek was describing laws as they currently exist, not where they come from. I think "the way we decide upon the rules" is ambiguous enough to not make a value judgement on it.
In States a fresh law is looked upon as a remedy for evil. Instead of themselves altering what is bad, people begin by demanding a law to alter it. ... In short, a law everywhere and for everything!
~Peter Kropotkin
Please don't take this thread off track. Prateek and I both understand what the discourse is about.
liberty student: Prateek Sanjay:The law is the process of creating, enforcing, and adjudicating rules operative against every individual. This one is very problematic. First of all, there is no "the law". Every territorial monopoly has a "the law", there is no universal law for all people, everywhere.
Its possible you are being too hard on Prateek here. If prateek had written
'Law' is the process of creating, enforcing, and adjudicating rules operative against every individual as in a MachineryOfFreedom type market-anarchy, would that have passed muster?
If so, the question of authority is answered because it is merely the liberty of those individuals involved in the process. (I.e. they either do not require authoritym or it is explicitly granted by whom it concerns)
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
nirgrahamUK:Its possible you are being too hard on Prateek here.
I only asked Prateek where the authority and jurisdiction came from.
nirgrahamUK:'Law' is the process of creating, enforcing, and adjudicating rules operative against every individual as in a MachineryOfFreedom type market-anarchy, would that have passed muster?
Obviously not.
nirgrahamUK:If so, the question of authority is answered because it is merely the liberty of those individuals involved in the process. (I.e. they either do not require authoritym or it is explicitly granted by whom it concerns)
Handwaving Nir.
Please, its not obvious why not , so give me a clue. Maybe I'll feel an idiot when you point it out, but I am willing to accept the danger :-)
Saying that voluntarism handwaves the question of authority is maybe to miss the point, the point that authority to do what is a liberty is automatic (and not derived from will of the people or a constitution or some such).
How can you create rules and laws against individuals in a market anarchy? Hint, where does the word rule come from? Are all rules laws, and all laws rules? If not, what is the difference?
If you and I enter into a business contract, we might both agree on an arbitration organisation to which we would go in case of dispute. The arbitration agency might stipulate behaviour necessary for us to adhere to in order to not cause it to rule against us. for example.
I am comfortable with assuming that whilst Law can have an aggregated sense (the sum of many rulings considered overall) which Rule does not, it can also behave in the singular much as the word rule can. Is that controversial, will it cause big problems?
nirgrahamUK: If you and I enter into a business contract, we might both agree on an arbitration organisation to which we would go in case of dispute. The arbitration agency might stipulate behaviour necessary for us to adhere to in order to not cause it to rule against us. for example.
What does that have to do with Law?
nirgrahamUK:I am comfortable with assuming that whilst Law can have an aggregated sense (the sum of many rulings considered overall) which Rule does not, it can also behave in the singular much as the word rule can. Is that controversial, will it cause big problems?
I cannot understand this. Can you rephrase it in a clearer manner?
Are all rules laws? If not, why?
In the interest of trying to move this along Nir, you are into natural rights, correct? If you are, then natural rights are derived from natural law. Still good?
Are the rules you and I make for ourselves, the same as natural law? Can you and I create natural laws? In the absence of a contract, consent, can we create laws comparable to natural law which others must adhere to or be found in violation and subject to some penalty or censure?
liberty student: nirgrahamUK: If you and I enter into a business contract, we might both agree on an arbitration organisation to which we would go in case of dispute. The arbitration agency might stipulate behaviour necessary for us to adhere to in order to not cause it to rule against us. for example.What does that have to do with Law?
It would have to do with Law if Prateeks definition of Law was adhered to.
liberty student:In the interest of trying to move this along Nir, you are into natural rights, correct? If you are, then natural rights are derived from natural law. Still good?
ok.
liberty student:Are the rules you and I make for ourselves, the same as natural law? Can you and I create natural laws? In the absence of a contract, consent, can we create laws comparable to natural law which others must adhere to or be found in violation and subject to some penalty or censure?
They are the same in that they are rules, but they are not the same in other respects, like whether they were agreed to by consenting parties.
No, you and I cannot create natural laws
If censure can include 'shunning' and other modes of legitimate interactions then you and I can surely apply 'rules'/laws against third parties who have not consented to our laws. There is no problem with this, since we do not controvene natural law in so doing. We remain within our liberty.
nirgrahamUK:It would have to do with Law if Prateeks definition of Law was adhered to.
I've already challenged Prateek's definition. It would be better if you responded to my challenge.
nirgrahamUK:They are the same in that they are rules, but they are not the same in other respects, like whether they were agreed to by consenting parties. No, you and I cannot create natural laws
So the answer is, "they are not the same". That's good. I think it is important to distinguish between rules and laws. We can create rules, we cannot create laws.
Some argue that the word law means order. I do not know whether there is lexical semantics involved in this argument, i.e. that law is a synonym for order. If it was so, then I could use both of them interchangeably in a sentence, because their meaning is supposed to be identical or very close. Actually, these two words do not have the same lexical definition, but the etymology of law is "something established, set up". Well, I think it is not confusing if I say that order means "something that is arranged in a concrete way", and that law means "something that arranges in a concrete way". Thus, law is the thing that does the provision and order is the concrete arrangement brought into being afeter provision takes place. To put it in other words - a law prescribes the way in which a thing to be directed and order is the description of the direction of a thing that results from a precursory act of directing. I think it is reasonable that when talking about law you make a distinction between natural law and so-called artificial law. Natural law refers to natural persons. Such persons are the existing in the reality human individuals. This law is natural, because it is what the human nature predicates the condition in which human persons to live ought to be. This is the only just condition. If it is disrupted then there is harm, pain and death that occurs because someone has violated the natural state of order between humans. This natural state is a state where a person's body and other property are free from violent interference executed by another person. Artificial law is the one that refers to artificial persons. Such persons, for example, are a president, a prime minister , a citizen and etc. There does not exist in the reality a citizen, there exists a natural person who currently occupies the post called "citizen". There exists a division of artificial persons. The different types have got different status, according to which different artificial law applies. So, there does not exist one uniform artificial law.
vaduka, thank you for an excellent post. You are one of only a handful of people who distinguish between human beings and persons.
That really was an excellent reply by vaduka.
liberty student, I remember you linking to something, not to long ago, a link to a text or video, of someone going into greater depth to explain that there is no such thing as a "citizen" or "nation", for example. Would you please provide that link again? I'd make this request in a PM but your bio says, do not contact.
Law is the formalization of dispersed, informal rules within a given geographical area.
Rules act as a guide to individual human conduct, whereas law dictates the paramaters of action for all acting men who fall under its jurisdiction.
This one is very problematic. First of all, there is no "the law". Every territorial monopoly has a "the law", there is no universal law for all people, everywhere. Second, where does the authority come from to create, and jurisdiction to enforce and adjudicate?
With respect to a given territorial monopoly on law, there is a body of law, and yes, there is no universal law.
The authority and jurisdiction to create, enforce, and adjudicate comes partly from having a power to coerce people and partly from having the willing or complicit acceptance by a large enough number of people in the territorial monopoly.
For example, in Taliban-ruled Pakistan, the tribal chiefs have a stockpile of guns and men loyal to them. They will punish those who dissent to their demands or those who rat them out to the Pakistani government. While people in these Taliban-ruled regions don't have to be fearful of or obedient to a tiny minority of well armed chieftains, since they can buy the guns themselves from the Peshawar market, they are either ambiguous (because are torn between obeying or not obeying them), or they think that the leaders punish them for their own good.
Authority does not come of itself, but is merely there when there is acceptance by a follower, either out of fear or out of respect. The people in Taliban-ruled Pakistan do not respect or fear the Pakistani government, and hence the government has no authority in those regions. When there is dispute on jurisdiction by two aspiring territorial monopolists, there is usually violence, as happens in rural Pakistan between the government and civilians.
(By the way, I like how Mises.Org has members who have intentionally or unintentionally worked to raise my standards in debate.)
Prateek Sanjay:The authority and jurisdiction to create, enforce, and adjudicate comes partly from having a power to coerce people and partly from having the willing or complicit acceptance by a large enough number of people in the territorial monopoly.
I think you see my point now. Law, and the "justice system" is simply a regime run by violence and arbitrary decisions.
Liberty Student:Law, and the "justice system" is simply a regime run by violence and arbitrary decisions.
As opposed to what?
Z.
jmorris84:liberty student, I remember you linking to something, not to long ago, a link to a text or video, of someone going into greater depth to explain that there is no such thing as a "citizen" or "nation", for example. Would you please provide that link again? I'd make this request in a PM but your bio says, do not contact.
Google
There is a ton of info there, some of it good, some of it questionable. Do the research, let us know your conclusions.
z1235: Liberty Student:Law, and the "justice system" is simply a regime run by violence and arbitrary decisions. As opposed to what?
The market of course. Please don't hijack my thread. We're discussing what law is, not what the market is not.
Liberty Student:We're discussing what law is, not what the market is not.
Whether converged to by tradition, custom, or otherwise, the law is the playground on which the market game can only be played. The law creates the market, not the other way around. For an exchange (voluntary or otherwise) to take place, property ownership (boundaries) must exist first. Clearly delineated ownership of A and B is prior to exchange of A for B. Without the former, the latter is merely taking. The law provides the former.
Or so I believe.
"Whether converged to by tradition, custom, or otherwise, the law is the playground on which the market game can only be played. The law creates the market, not the other way around. For an exchange (voluntary or otherwise) to take place, property ownership (boundaries) must exist first. Clearly delineated ownership of A and B is prior to exchange of A for B. Without the former, the latter is merely taking. The law provides the former."
"Life, Liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place." - Bastiat
If there were no laws to say that you are the owner of your body, would it be just for someone else to aggress against you or enslave you?
z1235:the law is the playground on which the market game can only be played.
How does inserting such false analogies help your case, I have no idea.
Perhaps. If I ate from the sacred pear tree in front of the chief's tent and the tribe's tradition/custom/law proscribed such punishment for such transgression.
No, let's say you've lived on the same 10 X 10 m plot for as far back as you can remember and never contacted any other human. On your 30th birthday a man comes and punches you in the face. Just or unjust or neither?
To return to your example, are you saying that whatever the law prescribes is just? Eat the pear and face death. Don't pay taxes and face imprisonment. Possess marijuana and face imprisonment. So the law is by definition just? If so, whoever makes the law must also be acting justly, since law can only be just. The state is therefore always just, since it considers its actions as ever lawful.
No, let's say you've lived on the same 10 X 10 m plot for as far back as you can remember and never contacted any other human. On your 30th birthday a man comes and punches you in the face. Just or unjust?
Depends. Did I piss on the man's grandfather's grave located under my plot? Did his tradition/custom/law consider such my (repeated) action to be an abomination and a provocation?
Please see my edited post.
I see your point.
You said in the OP, "Until we can define those two things, its impossible to speak intelligently about whether legal systems work or can be optimized." Did you intend to say that a regime run by violence and arbitrary decisions can not be optimized to benefit everybody better? That the debate on making the current legal system work better is itself faulty or based on a faulty premise?
Prateek Sanjay:Did you intend to say that a regime run by violence and arbitrary decisions can not be optimized to benefit everybody better? That the debate on making the current legal system work better is itself faulty or based on a faulty premise?
Both. Instead of assuming that "the law" and "juidicial system" can create or act towards justice, we have to define what those terms mean. If justice is not possible for those terms, then it seems to me to be a false premise that they can be optimized.
It's sort of like Public choice economics. It's this bogus economic analysis of politics, which examines incentives for people who are in a system designed to distort incentives and disincentivize personal responsibility. All public choice can tell us is that government doesn't behave like a market, and the way to make a government behave like a market is to make it a market and not a government.
Same thing with monopoly legal systems. Any analysis about whether US justice ever worked, has to answer the questions (1) how can we determine the efficiency of a violent monopoly and (2) how can such a system promote just outcomes.
The deeper we look into legal systems the uglier it gets.
"It's sort of like Public choice economics. It's this bogus economic analysis of politics, which examines incentives for people who are in a system designed to distort incentives and disincentivize personal responsibility. All public choice can tell us is that government doesn't behave like a market, and the way to make a government behave like a market is to make it a market and not a government."
I can't believe a respected poster would post such trash.
Zachary, can you substantiate your claim that my post was trash? If not, aren't you in fact the one posting trash?
You're the one making unsabstantiated claims regarding an entire school of economic thought, and then without any reasoning you deem it a bogus school of thought because of what it does (or doesn't, you weren't very clear) teach us (according to your review of public choice literature).
Zachary Plaxco:You're the one making unsabstantiated claims regarding an entire school of economic thought
What did I not substantiate?
Zachary Plaxco:and then without any reasoning you deem it a bogus school of thought because of what it does (or doesn't, you weren't very clear) teach us (according to your review of public choice literature).
You seem to be contradicting yourself here. You say I didn't provide any reasoning, but then say I deemed it bogus for a reason.
Can you articulate precisely the issue with what I wrote? It would be more helpful than making knee jerk claims like calling my post trash without substantiating what was actually trash and why.