Political Theory

Re: In libertarian law, does it matter that it was an "accident"?

E. R. Olovetto — Wed, 14 Jul 2010 15:34:18 GMT

First, don't take this as a personal attack.

Second, I tried. No wonder I haven't seen anyone articulate a simple argument of a position which contradicts mine. The pages you referenced from Smith are almost unreadable philosophical analysis. It didn't (near as I could tell) deal with the ideas L&L or I have been talking about.

LS, I just didn't get around to responding to your other post. I don't see how it is "unreadable". It makes perfect sense to me. Tell me the first place you get stuck at and I will help you. It probably doesn't address whatever you said but it deals with the foundation of all sciences, so it is important to understand going forward.

Please tell me you are not comparing subjectivism to the second law of thermodynamics.

Austrians do recognize the significant role of subjectivism, but there are still objective facts of economic reality. To prescribe subjectivism for both leads you to the flawed hermeneutic position of Lavoie and others. There is a whole different character to laws of praxeology versus those of the natural sciences, but both are equally valid scientific theories, and the former is not just some wishy-washy relativistic poetry.

I am a fairly bright guy, perhaps average in these parts. If I can get a synopsis, or if you can articulate the article content in a condensed form, that would be a big help to me, and probably many other casual readers of these discussions.

It's fine if you don't have time. I wanted to fully treat each of the subjects that this thread started to branch off into, but there can be no discussion of "libertarian law" without outlining the methodology. I barely wrote anything on that because it seems more worth my time to keep learning and developing the theory. I feel that I am basically on the right track, but each time I peel back a layer there is a whole new range of issues to address. Skimming around the outside doesn't do much for me usually. Some topics of those papers will certainly be addressed though.

I'll try to pare back my response and deal with the Hoppe problem first. It's just frustrating when someone wants to "debate" an issue like argumentation ethics but hasn't read, for instance, Kinsella on estoppel. It's bad science, but a valid cognitive proof that 2x2=4 doesn't stop someone from saying 2x2=5. Lilburne's basic error, the one I said can be briefly stated, is conflating the personal, subjective mental episode of valuation, or the judging A as being more valued than B, with a "complex" of social acts comprising the process of argumentative justification.

I'm pretty sure that he doesn't even understand Hoppe's argument, at least I have no clue how he could legitimately come to the conclusion that, "Hoppe is trying to refute justification". There's a sort of linguistic equivocation that can happen with "justification". "Justifying" the eating of a donut after 2 weeks of dieting to oneself is merely a personal valuation (value judgment). I prefer the having dieted for two weeks but enjoying a donut to the having dieted for two weeks and continuing to resist sweets. The whole interpersonal form of argumentative justification is another matter entirely.

Anyhow, I'm not all that interested in criticisms that have already been dealt with years ago. Rasmussen asks some good questions about Hoppe's theory in his Arguing and Y-ing such as "What does it really mean to argue?" So, I think with the help of phenomenology we can better answer this question. Since I've started going on this it seems like there are implications for economic theory as well. But, Hoppe's argument isn't necessarily the best starting point for a legal theory. Arguing for a socialist ethic does place one in a state of performative contradiction, but rambling nonsense isn't a crime per se. Instead I will choose the common law tradition of estoppel.

So, I want to do two things. One is to go to the root of argumentation and determine what social acts it contains (spoiler: there is more than one relevant form of argumentation). The other is to analyze delict-types and penal law, with influence of Rudolf von Jhering and Ernst Beling, at a sort of macro-level as mentioned in this blog post about Mises possibly anticipating AE:

Mises:
Any kind of human cooperation and social mutuality is essentially an order of peace and conciliatory settlement of disputes. In the domestic relations of any societal unit, be it a contractual or a hegemonic bond, there must be peace. Where there are violent conflicts and as far as there are such conflicts, there is neither cooperation nor societal bonds. Those political parties which in their eagerness to substitute the hegemonic system for the contractual system point at the rottenness of peace and of bourgeois security, extol the moral nobility of violence and bloodshed and praise war and revolution as the eminently natural methods of interhuman relations, contradict themselves. For their own utopias are designed as realms of peace.

An important basic question is what are "social acts"? Austin and Searle used the term "speech acts" in their somewhat similar work on the subject. Searle says:

One of the reasons why the subject of speech acts is so much fun, is that you don't have to worry about what all the great figures from the past said, because most of the great philosophers had no theory of speech acts. You can't go and find Kant's view on apologising or congratulating, as far as I know...

Reinach makes mention of having "discovered" social acts but he does have one predecessor, Thomas Reid who wrote Essays on the Active Powers of the Human Mind in 1787. From the Stanford Encylopedia entry on Reinach in part:

Reinach mentions many social acts in his treatise on “The A Priori Foundations of the Civil Law” (1913)—commanding, requesting, warning, questioning and answering, informing, enacting, revoking, transferring, granting, and waiving of claims—but he devotes the most attention to the act of promising. Drawing on the theory of essences or intrinsically intelligible structures referred to above, Reinach offers the following examples of a priori truths about what he sees as the intrinsically intelligible structure instantiated through the performance of a promising act:

through promising one incurs an obligation;

by receiving a promise one has a claim to what was promised;

such claims are extinguished when the promise is fulfilled;

such claims may also be extinguished if the claimholder waives the claim;

promising is subject to a range of variations or modifications, including conditional promising, promising on behalf of or as a representative of someone else, promising to a group, promising by a group, and so forth.

Reinach maintains that such truths are not merely necessary and universal, but also informative, thus that they are examples of truths that are both a priori and synthetic.

Obviously the range of social acts goes beyond what are used in argumentation. Reinach explicitly states that his research is not comprehensive and, unfortunately, he died at the age of 34 in WW1. One type of social act which I have tried to advance is "titling" or promulgating legally issued norms (Bestimmungen) related to property titles. This is just one aspect of the first major hurdle for social act theory within libertarianism.

Reainach explicitly respects state authority so how can it work with anarchy? Must there be some sort of republicanism or "monolithic law beast" like the anti-Rothbardians have nightmares of? For more on this we'll have to look back to Menger on the "source of law", but a couple last points: Mises is the godfather of the Austrian school but his Kantianism, while rectifiable, must be set apart from the Aristotlean-Thomist tradition of most of the other members of the Austrian School. Mises leaves all sorts of maddening hints, like the one above, and several unbacked (and ultimately flawed) assertions, such as that the use of violence is somehow a special good requiring monopoly provision.

@Clayton: You're talking about praxeological legal theory vs. jurisprudence (or law in action). It's definitely true that whatever happens, happens, but one must be careful to avoid legal positivism and saying that whatever happens is right.

Re: In libertarian law, does it matter that it was an "accident"?

Clayton — Wed, 14 Jul 2010 07:32:01 GMT

@OP: If by "libertarian law" you mean "strict, unyielding application of NAP - the sum of the law - to every situation" then I think you are right, intent should not matter.

However, I think the NAP (and its variations) implicitly entail a denial of libertarianism and individualism. Here's how. If applied to the real world, rationalist legal theory of the sort that Rothbard espoused would amount to nothing more than a new version of central planning of law. I know that Rothbard did not, in fact, espouse central planning of law but I think he did not perceive that he had to choose one or the other - market law or rational legal theory. You cannot have both. Law could only be uniformly NAP-based by force of a coercive monopolist imposing an NAP-based system on the market and excluding all competitors. The collectivism implicit in NAP-based law is the imposition of the moral value of non-aggression onto all participants in legal disputes. Any imposition of values (whether moral or economic) is collectivist.

If by "libertarian law" you mean a natural order legal market (no barrier to entry in the production of law services, including arbitration, dispute resolution, legal representation, etc.), I think the answer to your question is "we don't know (asterisk)." We don't know because there isn't a free market in law so we don't know what precedents would, in fact, emerge in such a free legal market. The asterisk is that we can take an educated guess based on historical and contemporary customary (common) law systems. In every common law system of which I am aware (English common law, Somali Xeer, Afghan Pashtunwali), there is a distinction between intentional and unintentional killing. I take this as evidence that in a natural order legal market, the precedent that would emerge is that intentional and unintentional killing should be differentiated.

The difference between rational legal theory and a natural order legal market is that in rational legal theory, anything which contradicts the axioms of law would be illegal. So, once we define aggression, anything which is categorized as aggression is illegal and anything which is not so categorized is not illegal. In a natural order legal market, however, the law is whatever precedents emerge that differentiate between what people will fight for versus what they will settle for. The law defines the boundaries of justifiable violence. If you sleep with my wife and I kill you and it has emerged, through precedent, that killing a man for sleeping with your wife is justifiable homocide, then this act of "aggression" would be lawful, not unlawful as it would be in a pure, NAP-rationalist legal system. That said, I think a natural order legal market would result in the emergence of far more reasonable and intuitive laws than that which pertains under the statist law monopolies.

Clayton -

Re: In libertarian law, does it matter that it was an "accident"?

liberty student — Wed, 14 Jul 2010 06:43:23 GMT

E. R. Olovetto:
Read the piece on Austrian philosophy by Barry Smith I linked.

First, don't take this as a personal attack.

Second, I tried. No wonder I haven't seen anyone articulate a simple argument of a position which contradicts mine. The pages you referenced from Smith are almost unreadable philosophical analysis. It didn't (near as I could tell) deal with the ideas L&L or I have been talking about.

E. R. Olovetto:
There is no explicit "monopoly" on the 2nd law of thermodynamics, yet it continues to "work".

Please tell me you are not comparing subjectivism to the second law of thermodynamics.

Re: In libertarian law, does it matter that it was an "accident"?

E. R. Olovetto — Wed, 14 Jul 2010 05:28:06 GMT

Anarchic law, polycentric order, my point is if there is no monopoly on "law", then why would there be a monopoly on the ethics of such law, or a singular or universal approach? With a subjective approach, methods of dealing with conflict will be tested, and better order would come about.

Read the piece on Austrian philosophy by Barry Smith I linked. There is no explicit "monopoly" on the 2nd law of thermodynamics, yet it continues to "work".

Re: In libertarian law, does it matter that it was an "accident"?

Libertyandlife — Wed, 14 Jul 2010 04:45:15 GMT

Anarchic law, polycentric order, my point is if there is no monopoly on "law", then why would there be a monopoly on the ethics of such law, or a singular or universal approach? With a subjective approach, methods of dealing with conflict will be tested, and better order would come about.

Re: In libertarian law, does it matter that it was an "accident"?

liberty student — Tue, 13 Jul 2010 18:40:06 GMT

E. R. Olovetto:
I'll get to it eventually. Don't worry, I haven't forgotten and will pull up some points you made in older threads.

I'm not worried you won't get to it. Except as an intellectual curiosity, I don't think any opinion one way or another will affect my day to day existence in a meaningful manner. That said ...

E. R. Olovetto:
Did you read my last link?

No. I appreciate your rigorous sourcing, but I have an enormous amount of data to sort through and absorb each day, and on top of having the time to participate in discussion, I do not have time to read everything you have read. This may perhaps seem dishonest intellectually, but it an honest appraisal of how I value my time, and the place I allocate these discussions and the pursuit of somewhat esoteric knowledge in my life.

I am a fairly bright guy, perhaps average in these parts. If I can get a synopsis, or if you can articulate the article content in a condensed form, that would be a big help to me, and probably many other casual readers of these discussions.

Re: In libertarian law, does it matter that it was an "accident"?

E. R. Olovetto — Tue, 13 Jul 2010 16:26:14 GMT

I'll get to it eventually. Don't worry, I haven't forgotten and will pull up some points you made in older threads. Did you read my last link?

To get a taste of what I am working on, see Reinach's The Apriori Foundations of the Civil Law. If, you want to understand Reinach's philosophy James DuBois' Judgment and Sachverhalt is a good introduction (this is what I mentioned to you trulib).

For other Austrian essays related to Reinach see this by Sechrest or this by Hoppe. Also on "subjective ethics" Mises' Theory and History, Hoppe's Four Critical Replies and at least read appendices 7-9 of this by Menger.

For how phenomenology relates to Austro-libertarianism see Gordon's review of Prytchiko's book here, at least pgs. 7-10 of this by Barry Smith, chapter 10 of Smith's book on Austrian philosophy especially pgs 5, 23-33.

However, it seems to be a big leap to claim that we can calculate optimal values (right) aprioristically since the very definition of right is subjective.

This isn't what is going on. How do we know anything about economics, since the driving force behind human action is individual, subjective valuations?

Re: In libertarian law, does it matter that it was an "accident"?

liberty student — Tue, 13 Jul 2010 15:57:24 GMT

E. R. Olovetto:
trulib makes some pretty good points, probably some things there I was going to touch on in my response I never finished. Value judgments are subjective, but anyone who contrives whatever reason for that ruling out an aprioristic doctrine of right must also deny the validity of all of Mises' work on economics, because it uses essentially the same methodology.

I mean this sincerely. This I want to see.

I'd like someone to articulate an argument that convinces me because I haven't seen one. I'm not invested in any position except the one which makes sense, so if there is a better way to understand this topic, I am hungry for that knowledge.

Also, the appeal to Mises is a little .. sketchy. I am not afraid to challenge Mises, Rothbard, Jesus or anyone else on ideas. So I am not particularly concerned about denying the validity of something I do not believe is sound. However, it seems to be a big leap to claim that we can calculate optimal values (right) aprioristically since the very definition of right is subjective.

Re: In libertarian law, does it matter that it was an "accident"?

liberty student — Tue, 13 Jul 2010 15:43:08 GMT

trulib:
The term "anarchic law" doesn't make sense.

I understood him to mean polycentric order. Quite sure he was not using law (singular) but law in the meta sense.

Re: In libertarian law, does it matter that it was an "accident"?

Merlin — Tue, 13 Jul 2010 07:28:00 GMT

From an insurer’s perspective, I’d say that it would make a lot of difference whether the aggression was perpetrated in accident or with full intent. A guy that shoots willingly, is much more likely to do it again, while accidents, especially tragic ones, almost never happen twice by the same guy. So, in terms of premium for liability insurance, I say it makes a lot of difference.

And that again, if you have to convince a relative of the victim to forgive the perpetrator against a sum of money, it’s far easier (and hence cheaper) to do so if the aggression was accidental. I really don’t see how a father could forgive the rapist-murderer of his 9-years old daughter for any sum, but vehicular manslaughter would be easier. So again, it does make quite a difference.

Re: In libertarian law, does it matter that it was an "accident"?

E. R. Olovetto — Mon, 12 Jul 2010 21:48:59 GMT

http://mises.org/journals/qjae/pdf/qjae7_4_5.pdf

^Re: "Austrian law", "libertarian law", or "praxeological law" (I ultimately prefer "human law" and I agree that "anarchic law" doesn't make sense).

trulib makes some pretty good points, probably some things there I was going to touch on in my response I never finished. Value judgments are subjective, but anyone who contrives whatever reason for that ruling out an aprioristic doctrine of right must also deny the validity of all of Mises' work on economics, because it uses essentially the same methodology.

Re: In libertarian law, does it matter that it was an "accident"?

Graham Wright — Mon, 12 Jul 2010 21:38:27 GMT

It does make sense. Think of libertarian law (with or without government), the common objective is letting freedom bring better working society. If we have no judgement on how people should live their lives, why on law or ethics? Isn't that what anarchic law is supposed to be about?

The term "anarchic law" doesn't make sense. Anarchy describes a free market in law, not the content of law. Yes, in anarchy, the laws (and punishments) will reflect the norms of the individuals in society, but we can still discuss the ideal libertarian law. Think of it as the kind of law you would like to see offered on the market, for whatever reason. As libertarians, we think laws should be based off the homesteading principle and voluntary exchanges... that is the essence of what a libertarian wants. As libertarians, what principles do we think punishments should be based on? That is what this thread is about, and what is up for debate... Roderick Long, Walter Block and Stephan Kinsella all have different, nuanced opinions on this.

All this is seperate from ethics, by the way. It doesn't matter whether you think ethics is objective or subjective... the questions in the OP are still meaningful and interesting. You support the homesteading principle, for some reason. What principle for punishment do you support? Retribution? Restitution?

Note: this is also seperate from matters of jurisprudence. "At what point...?", "At what age...?" are matters of jurisprudence. It is a continuum issue. We cannot answer this exactly from our armchairs. This doesn't make it a waste of time talking about the principle of when force is justified and when it is not. Likewise, we can discuss the principles of punishment without specifying precisely what punishment must be given in any set of circumstances.

Further Note: this is all just speculation, in the sense that ultimately the punishments that are delivered in an anarchic society will depend on consumer demand, i.e. social norms. But the same is true of all libertarian theory! That doesn't stop us talking about libertarian theories and ideals.

Re: In libertarian law, does it matter that it was an "accident"?

liberty student — Sun, 11 Jul 2010 15:08:54 GMT

Libertyandlife:
It does make sense. Think of libertarian law (with or without government), the common objective is letting freedom bring better working society. If we have no judgement on how people should live their lives, why on law or ethics?

It seems like a fairly simple proposition, but it has been at the center of much debate on this forum.

Libertyandlife:
Isn't that what anarchic law is supposed to be about?

I believe so.

Re: In libertarian law, does it matter that it was an "accident"?

Libertyandlife — Sun, 11 Jul 2010 05:43:45 GMT

It does make sense. Think of libertarian law (with or without government), the common objective is letting freedom bring better working society. If we have no judgement on how people should live their lives, why on law or ethics? Isn't that what anarchic law is supposed to be about?

Re: In libertarian law, does it matter that it was an "accident"?

liberty student — Sun, 11 Jul 2010 05:16:41 GMT

Great post Ultima.

I agree with your observation about the efficiacy of subjective ethics. But I would go a step further. Subjective values are necessary for market exchanges to happen, and they are how law and legal outcomes will be determined and valued in a truly libertarian order.