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Re: A Praxeological Account of Law

Clayton — Sat, 07 Apr 2012 00:27:22 GMT

I think when it comes to children's rights a lot of theory is needed and with time we'll get there with theory alone.

You and I already have several existing threads debating the children's rights issues.

Children's rights are more fundamental than many other social norms because they are actually hardwired into the brain - they are not merely encoded in the culture, they are actually wired into our physiology. Despite the fact that it contradicts the absurd homo economicus model of the human being, parents do in fact give up their own lives for the sake of their children. In fact, the precondition for any child's existence (pregnancy and childbirth) takes a heavy toll on the mother's body, as a rule. Yet that price was willingly paid billions of times over because our mothers wanted to pay that price in order to have us.

To extend this issue even further, I believe that human biology and its maladaptedness to the modern environment since the Agricultural Revolution is the root cause of most of the ineradicable double-standards in human law. For example, men and women are treated differently under the law. The PC police pretend this is not the case but it is the case, in practice. The rights and duties of a male and female in a romantic relationship are not treated symmetrically by the law. In particular, the rights and duties of a man and woman are asymmetrical with respect to the parenting of the children - the mother is almost always treated with precedence over the father. There are good biological reasons why things should be this way, despite the fact that it's clearly unfair if you reason about the father and mother as unisex human entities.

It is my view that private law (market competition in the production of dispute-resolution services) provides a path to the minimization of double-standards in law. By contrast, statutory law results in the aggrandization and expansion of double-standards (privileges) to the maximum extent - the only limiting factor being the collapse of society under the burden of these privileges. But, you say, there will be double-standards under private law, too! So what? This is like noting that there will still be crime under private law. So what?

Clayton -

Re: A Praxeological Account of Law

Aristippus — Sat, 07 Apr 2012 00:03:21 GMT

You don't need to convince a Misesian that theory is important. The point, however, does not revolve around basic principles as in, for example, Mises' program of liberalism, but in the detail of the resolution of disputes.

Re: A Praxeological Account of Law

Eugene — Fri, 06 Apr 2012 23:58:18 GMT

I see what you mean. But you also must recognize the benefit of theory, for example John Lock's writings. It was a lot of armchair philosophy and theorizing, yet it influenced whole societies. Philosophy and abstract thought are needed to generalize these series of trials and errors into an idea, into something that can become rule and finally law. So both practice and theory are needed. I think when it comes to children's rights a lot of theory is needed and with time we'll get there with theory alone.

Re: A Praxeological Account of Law

Clayton — Fri, 06 Apr 2012 23:52:00 GMT

knowledge ... did not help society to organize itself in a way that you and I would approve of.

And how do you know that you don't approve of, for example, slavery? On what basis? How did you come to be sure that slavery is a bad idea?

Clayton -

Re: A Praxeological Account of Law

Eugene — Fri, 06 Apr 2012 23:36:28 GMT

You are recommending to rely on trial and error in your conclusion paragraph. So far trial and error produced knowledge that did not help society to organize itself in a way that you and I would approve of. So why do we want to continue trying what was already tried? We know it doesn't work. Perhaps theorizing will produce the best results.

Re: A Praxeological Account of Law

Clayton — Fri, 06 Apr 2012 23:29:17 GMT

@Eugene: NAP is nowhere mentioned in the OP.

Re: A Praxeological Account of Law

Eugene — Fri, 06 Apr 2012 23:27:30 GMT

Okay, so how do you explain 10000 years of slavery and wars? It seems like there was enough knowledge collected by trial and error to come up with some effective system such as NAP. Yet It didn't happen yet.

Re: A Praxeological Account of Law

Clayton — Fri, 06 Apr 2012 23:26:15 GMT

what was proved to be effective for some people may prove to be ineffective for others

This, too, is knowledge.

Clayton -

Re: A Praxeological Account of Law

Clayton — Fri, 06 Apr 2012 23:20:41 GMT

I don't see how trial and error will necessarily produce good results

Each individual trial produces a result: either success or failure. Trial-and-error (many trials) doesn't produce a result, it produces knowledge. This is true whether we are speaking of laboratory experiments with quantum particles or resolutions to legal disputes.

Clayton -

Re: A Praxeological Account of Law

Eugene — Fri, 06 Apr 2012 23:13:18 GMT

Besides, what was proved to be effective for some people may prove to be ineffective for others. For example males might discover by trial and error that it is effective to enslave women, white people can discover through the same method that it is beneficial to enslave black men. It was trial and error that led to slavery, occupation and mass murders
I am not terribly excited about that.

Re: A Praxeological Account of Law

Eugene — Fri, 06 Apr 2012 23:04:09 GMT

Clayton, I don't see how trial and error will necessarily produce good results. Trial and error lead society to numerous conflicts and wars. Why do you think it would be different now?

Re: A Praxeological Account of Law

Steven Douglas — Sat, 05 Nov 2011 12:02:11 GMT

Clayton, a very thought-provoking read, thank you for the link, as well as the time you put into this. I'm aware of much of the history of common vs. statutory laws, but your take on it yielded things I had never considered (I may respond later with specifics as time permits).

Again, thanks.

Re: A Praxeological Account of Law

Clayton — Mon, 12 Sep 2011 07:54:15 GMT

Perhaps I wasn't clear enough. I was referring to a much earlier era than monarchies or nations. Let me try to clarify my point. Just think of an island with 100 people on it. Assuming they are all of approx equal martial skills, the incentives for peaceful conflict resolution between any two individuals are obvious. But, one fine morning, one person (a "leader") gets the entrepreneurial idea of proposing a "syndicate" to nine others (the "followers"). The followers would commit their martial skills toward all future conflict resolutions of their leader against any individual outsider. In return, the leader distributes to them a share of the "profits" (the extra goods/services the leader extracts from his conflict resolutions, beyond the amounts he could achieve as an individual). Plus, the "syndicate" could also commit its martial skills toward conflict resolutions of any of its members against outsiders. Thus, both the leader and the followers are better off than resolving conflicts with outsiders individually. Faced with this predicament, an outsider has the options of (1) tackling the syndicate as an individual with the obvious drawbacks that come with that, (2) organizing a syndicate of his own, or (3) joining the "successful" syndicate "voluntarily".

Hence, a case for states as means for affecting (biasing) conflict resolutions through unequivocal martial skill imbalance. From what I know about human nature/action, I would venture a guess that a vast preponderance of conflict resolutions through human history have been influenced (biased) by the above mechanics.

But I think the assumption here is that - in the production of security - scale is always the deciding factor. In other words, 100 always beats 90 always beats 80 and so on. I strongly doubt that this is true and, if it is not true, then the production of security is more complicated than just having the largest gang of tough guys. That means that the division-of-labor (specialization) in the production of security should be expected to have the same effect on security producers that it has on producers of any other good or service (that is, the market constantly drives producers to the right scale, not too large, not to small). But we clearly observe that this is not the case with the State - it always grows bigger. If people are not inherently exploitable, then there is no reason to believe that they wouldn't rationally calculate their losses as serfs and pool their money together in order to hire enough tough guys to defend themselves from the established tough guys well enough until they can build their own "anarcho-capitalist" society which - if the body of economics is correct - should be vastly more efficient and prosperous than the centrally-controlled serf-society of the old school syndicate. I am tempted to say this is the American experiment. But the outcome of at least the American experiment is clear: the old syndicate still manages to move in and seize control of the fledgling "free market" country and subjugate it to the same Old World model. I keep seeing exploitability (incorrect calculation of the benefits of tolerating a State) as the primary explanation.

Merlin used to have an old thread on this subject, (How the State has outdone Anarchy (until now)) but I can't seem to find the link to it. Basically, his theory is that States enslave people and in the process force the entire population to become more production-oriented (over generations). That is, people have to work harder to satisfy their taskmasters but the most successful ones end up passing on their genetic disposition for workaholism. Because of the productive potential of technology, older social systems and genetic dispositions that are too lackadaisical end up being subjugated by the societies which have been subjected to this process for a longer time and then begin the same process of selection and being driven to a greater disposition towards productivity. Merlin sees this process as eventually coming to an end as the species is essentially (and unwittingly) becoming more and more capitalist/production-oriented through this process. As a result, it is becoming harder and harder for the State to maintain the population in a condition of enslavement as the marginal productivity of the State's process of enslavement over the new, naturally higher productivity of individuals is constantly decreasing.

It's a very stark point of view but I find it to be difficult to refute.

Clayton -

Re: A Praxeological Account of Law

Clayton — Mon, 12 Sep 2011 07:28:29 GMT

Separately, I still really like the OP. Rothbard described a universal system of liberty, but I like how Clayton describes how conflict resolution in general comes about. It's important to know not only the "why" but the "how". And I think Clayton did a great job of that.

Feedback appreciated. However, I will point out that my position is critical of Rothbard/Hoppe/et. al. in that I believe we can only make very vague and general statements about the normative content of the law based on experience but we cannot lay down any specific normative content from a praxeological approach. This is because I agree with Mises that a positive methodology (such as praxeology) simply cannot derive normative principles, a point on which both Rothbard and Hoppe explicitly disagree.

The normative content of the law (in my view) derives its validity at the highest level not from the logical arguments which were originally given to justify specific resolutions of disputes but, rather, from the success of certain resolutions in preventing further conflict. And this is not idle hair-splitting, it's a crucially important point that avoids the mistakes that NAP-fundamentalism can lead to. For example, a frequent topic on this forum is the rights of children vis-a-vis their parents. Since children are human, doesn't that mean children are self-owners in every sense that their parents are? So, society must then prevent parents from doing anything to their children that would be illegal if done to a peer - for example, forcing the child to sit in a corner for a timeout (a common non-corporal punishment) or bodily manhandling the child in a dangerous situation (this could be assault if done to a peer), forcing the child to receive unwanted medical treatment (for example, an enema or ice-packs during a high-fever), and so on. If we acknowledge a distinction between the rights of children and the rights of parents, then there is some kind of double-standard. But it doesn't stop here. The rights of mothers are treated differently than the rights of fathers (in divorces), the rights of women in pregnancy, childbirth, even sex itself are treated differently than men's rights. Some of these distinctions are statutory distortions but many of them have a basis in long-standing common law.

In order to rationalize all these distinctions in the rights of different persons, we have to acknowledge that there will be double-standards in law. The question is which are the right double-standards to have? There can be no a priori methodology that is consistent with the Golden Rule and which provides a non-arbitrary answer to this question. Rather, the only way to answer this question is to look to how real disputes arise in human affairs and to see what sorts of social arrangements and legal settlements actually work in resolving and preventing disputes from arising in the first place. This is the trial-and-error process of discovery that I spelled out. Without it, there is no rational basis on which to differentiate between different rights of different kinds of people. There is only a large collection of vehement opinions, all equally valid and invalid. Like economic central planning in which resource allocation decisions are justified on the basis of hot air, so in central planning of law (whether through academic/theological argument or statutory imposition) decisions on how disputes are best resolved are decided on the basis of hot air - nothing but the force of opinion.

Anyway, just wanted to highlight that I do disagree with Rothbard et. al.

Clayton -

Re: A Praxeological Account of Law

Autolykos — Sun, 11 Sep 2011 15:14:15 GMT

z1235:
I agree. Complete self-ownership implies conflict resolution strictly at the individual level. I already stated that this is the desirable "individual is optimal" equilibrium in the Prisoner's Dilemma. But for it to be optimal for everyone, everyone would need to accept it. Partial acceptance, shifts the equilibrium to the "herd is optimal" point for everyone, i.e. trading some self-ownership away in return for increased benefits in conflict resolutions with others.

I fail to see how "complete self-ownership" - by which I assume you mean "complete respect for self-ownership" - implies conflict resolution strictly at the individual level. That's why I consider you to be arguing a false dilemma.

On another note, I'll again point out that the Prisoner's Dilemma is a game-theoretic oversimplification of human affairs. That includes conflict resolution.

z1235:
The groups that completely respect self-ownership are the ones entered for reasons other than conflict resolution. The groups/herds that I am referring to -- the ones specifically entered for the sake of affecting conflict resoution via martial capacity imbalance -- are, by definition, corrosive to self-ownership. States and tribes are one of them. Chess clubs are not.

My point is that it's certainly possible - and I believe it's happened throughout history - for people to enter into groups that completely respect self-ownership for the (express) purpose of conflict resolution. Keep in mind that respecting self-ownership does not in any way imply pacifism, but it does imply non-aggression.