Political Theory

Re: a problem with the rothbardian legal system : infanticide

Kelvin Silva — Fri, 29 Mar 2013 22:44:48 GMT

In a free society (in my view) we would not have prisons like we have them today. People wouldn't be "locked up." Instead, criminals would (after they pay restitution through a court of law) be shunned by society. Who wants a thief on their land or in their store? It would come to such a point that the criminal is so cut off from the division of labor and fruits of society that he would have almost nowhere to go and nothing to do. That's when the entrepreneur steps in and creates free market prisons. These would not be there to lock criminals up, but to in fact serve as a sort of hotel for them. The prisons accept prisoners into themselves and give them a safe place to live and to work (given that no one else wants them). In this sense, prison is a place where a criminal chooses to go rather than a place where he is forced to go.

In a world with 7 billion people, getting shunned is quite hard....

Can you elaborate more?

Re: a problem with the rothbardian legal system : infanticide

Meistro — Wed, 27 Mar 2013 18:16:49 GMT

Does anyone and everyone have the right to restitution for the murder as well? Or is it a mad dash, first come first serve?

Re: a problem with the rothbardian legal system : infanticide

Autolykos — Wed, 27 Mar 2013 15:47:09 GMT

I don't consider myself a Rothbardian, but here are my thoughts on this subject. Sorry if this is too off-topic.

Meistro:
Rothbard maintains that only the victim of a crime is justified in seeking justice for that crime (see http://mises.org/document/1724/King-on-Punishment-A-Comment ). In the case of murder, that perogative falls on the heirs of that individual.

I don't think that logically follows. The victim of murder is the person who was murdered. As he's now dead, there's no way for him to seek justice for his murder. So I think anyone and everyone the right to seek justice for a murder.

Meistro:
In Hoppe's introduction to Ethics of Liberty, he asserts that it would be impossible for a woman who aborted her baby to be brought to justice, since the only person who would have a right to prosecute or complain about the crime would be the mother herself.

Given what I said above, I think it would be possible for a woman who had an abortion to be brought to justice - assuming that abortion either per se or at that stage in a pregnancy is considered to be murder.

Meistro:
But what of the problem of infanticide? A child, endowed as they are with the potential of becoming a sentient being. is availed of the right to life that all humans enjoy. But who could prosecute a mother for committing infanticide under the Rothbardian doctrine? Are we to accept that mothers and fathers do in fact have the right to murder - not release into the wild, but actually murder - their children? Or is there some other agency which can demand punishment?

Again, I think anyone and everyone has the right to bring a parent to justice for murdering his or her own child. The people most likely to know or suspect that a parent has done so are his close relatives and/or friends.

Re: a problem with the rothbardian legal system : infanticide

ToxicAssets — Wed, 27 Mar 2013 15:33:06 GMT

Meistro:
To be sure the solution of decentralization, and allowing local comunnites to enact these archaic puritanical customs would be radically superior to the present system

This has been the usual system in America, however the later decades have seen a growing trend on federal government authority, super-seeding states and local communities.

But you encounter more diversity of local lifestyle legislation in American states than in Europe, where everyone is now subject to similar marriage, alcohol, abortion laws, and very similar mandatory state education models.

Re: a problem with the rothbardian legal system : infanticide

ToxicAssets — Wed, 27 Mar 2013 14:11:00 GMT

Meistro:
They can be banned, but where is the benefit, aside from to the bureaucrats who get paid to enforce the ban and the sanctimous thrill of forcing people not do things they want to do? Unlike other types of intervention, such as a tariff, which while still over all to be harmful to the economy, that at least has the dubious merit of benefiting a producer in enabling them to charge higher prices for their good, at least in the short term.

It doesn't really matter the nature of the benefit, what matters is whether somebody with enough resources consider it worth the effort.

That's what the economist studies, how people allocate their scarce resources in order complete their objectives.

Sometimes the goals of different people can be up to a certain extent harmonized, so that they pool resources and divide labor and benefit together. When that's the case, great, they can work together and make all sorts of thing happen.

But oftentimes, the goals of some people might be objectionable to other people, and the latter group can decide to mobilize their resources so that the former cannot get what they want, and one of the most ancient ways of doing so is through violence and threat and coercion.

Politics is just the modern pattern of leveraging these antagonizing incentives.

And the task of the economist is to try to capture how these things play out, identifying where are the larger incentives and what are the probable patterns of interaction that will emerge from them.

It already a daunting task as it is. It becomes a nightmare if he preoccupies himself with understanding, or even worse, complaining and criticizing, the underlying religious beliefs, moral values, personal motivations, behavioral inclinations, political ideologies, tastes and aesthetic preferences that might be behind the decisions these people are taking.

To the economist, it doesn't matter the essence of a benefit, what matters is to whom it goes and how much does this actor value this benefit in terms of what he's likely to do in order to collect it.

The ultimate consequence of a goal is not what really matters. You may think it's intrinsically irrational or imoral to want to kill someone you dislike, and you're probably right. But it doesn't matter much when the real scenario consists of groups having the man and firepower and the burning desire to get as many members of the other groups killed as they can. If you're an economist observing the mobilization before a war, you'll be delusionally blinded by your ideology if you bias your forecast on your beleifs that ultimately, war is something "economically irrational". The task of the economist in the war effort is helping the commanders, predicting what are the most cost effective logistics, tactical manoeuvers, weapons, facilities and perhaps strategical plans and achievable goals considering the existent material and personal constraints they face.

He might present his opinion on whether bombing a high density manufacturing pole in the Rhur is going to be more effective than burning tens of thousands of people alive in Dresden, that is, analyse the tradeoff between destroying material infraestructure and reducing morale and popular support to the wehrmacht for example, considering the constraints and the goal of unconditional surrender of the Reich.

But which one is the "right" decision in a cosmic tribunal is not the task of the economist.

Maybe it's an important question for metaphysicians why people see somethings as benefits, but to the economist what really matters is that they do and so it really boils down to what they're gonna do about it next, and then what might happen beyond stage one, two and so on. And it's not so much his job to determine what are the cosmical consequences for the whole society in the very long run if certain classes of beleifs and goals are sustained. That's probably the subject of theologians.

So if enough people feel like they benefit from creating costs to those seeking the things they disapprove of, you expect them to pursue their goal and create these costs.

As you've understood in the case of tariffs, they happen because some groups do benefit from they at least in the short term, and they are in a position to produce more political pressure than those who suffer from them.A lot of what politics is about is the result of organizations dedicated to impose such costs on their targets. But it's of little use to whine, bitch and complain about it.

Re: a problem with the rothbardian legal system : infanticide

Aristophanes — Mon, 25 Mar 2013 19:38:44 GMT

Of course I'm not speaking of "England and its Constitution" (by the way, the U.K. has never ratified a single constitutional document, but let's not nitpick, your general argumentation is already flawed enough).

Which is why I asked about Montesquieu. The Spirit of the Laws is all about the benefits of the English Constitution (and in the direction of it in its various forms). It doesn't matter if they've ever ratified one, they don't need to which is why their system demanded so much respect. Nor does the non-existence of the English Constitution preclude the 'nothing' being referred to as the English Constitution (you've really never touched a book on this subject?).

All I was asking for is whether you were comparing the in libros populos of "germanic tribes" to the Caesar era Roman empire or the Holy Roman Empire (since it was legal systems as the subject.

My remark on Romans versus germanic tribes was obviously about contemporary comparable distinct human societies, and not chronologically distant ones, specially when one inherit a lot of its institutional technologies from other.

Bullshit. you would not have refered to them in the language that you did if you did not mean it as I took it. Who refers to "germanic tribes" except those speaking of the Medieval times? Time-specific terminology would have made your point more clear. I took it that you were ultimately saying that Roman Law trumps the germanic tribes; but you must be refering to what evolved into the English system...and withstood the HRE and the French domination...

Well, "progressive" seemed well adequate to describe someone inclined to substitute the traditional framework of social rules for his own system that has been proven to work in his own imagination.

But maybe not...

So anything that is not in tune with the "traditional framework of social values" is a progressive, huh?

I'm not talking about what is right to society.

I'm deliberately avoiding all the loose abstractions that generally reduce discussions about justice to an inane amount of jargon and nonsense.

Yes, I noticed that you dissolved the basic justification for a type of ethic by not addressing it then replaced it all together with an arbitrary economic value scale that apparently has an ethic that it conforms to...but it is unstated in a total form (much like the English Constitution).

That is precisely to avoid the unnecessary metaphysical complications of specifying what means "necessarily right".

Which is why you'd get laughed out of any where seriously discussing this question.

You try to think in terms of abstract ideals of perfection that exist only in your head, but that you nonetheless think are so pertinent that you're willing to throw away millennia of accumulated wisdom in favor of your own vision.

yeah. By studying the classic texts (so pretentiously, I might add) I am throwing away millenia of accumulated wisdom. That's a larf. I'm just smarter than all of them since I am standing on their shoulders. you are the one that seems to be pulling shit from your ass; claiming ex post facto that you were not comparing two time-distant cultures, you were just using two time-distance terminologcal references to compare them...

And I love when people aren't smart enough to comprehend that on the internet any unemployed loser in his mom's basement can be a pretentious douchebag with a full spectrum understanding of all matters.

Is this you telling us that you are a 55 year old man living in his mom's basement, unemployed, and being a douchebag on the internet by pretending to be a legal scholar on the LvMI forums?

Re: a problem with the rothbardian legal system : infanticide

ToxicAssets — Mon, 25 Mar 2013 19:04:32 GMT

Aristophanes:
Are you in school?

No.

Aristophanes:
You do not know what you are talking about. "Pathetic" German tribes? Are you speaking of England and its Constitution?

Of course I'm not speaking of "England and its Constitution" (by the way, the U.K. has never ratified a single constitutional document, but let's not nitpick, your general argumentation is already flawed enough).

The kingdom of England, even in its earliest medieval stage, is not contemporary to the Roman Civilization, except perhaps in its late Byzantine form, when, as matter of historical fact, it still was a much more complex and advanced society than anything imaginable by the british peoples of the time.

But even these backward british medieval anglo-saxon states, made vassal by the almost equally backwards Danes and then by the (little bit) more sophisticated Normans, had still a large Roman heritage, dating back from the time the Empire first civilized these isles inhabited by neolithic celtic tribes still mesmerized by their recent discovery: the fire.

So when you try to compare modern institutions in the U.K. against ancient ones created by the Roman Civilization you are being completely ridiculous.

My remark on Romans versus germanic tribes was obviously about contemporary comparable distinct human societies, and not chronologically distant ones, specially when one inherit a lot of its institutional technologies from other.

Aristophanes:
Have you read Montesquieu? Or Rousseau? Have you even read the Federalists? This is why I don't take people on here seriously. It is force of habit that even reply to you people.

I really don't see why people feel compelled to project their erudition on an internet forum by dumping some classic works list or required readings that every other user should take upon before presenting his opinion.

If they really feel entitled to a higher level discussion with similarly scholars, perhaps they should seek a more select venue.

Otherwise they sound just like scumbags who've skimmed the Cliffs notes or the wikipedia article for some paper they prepared for their liberal arts degree but somehow feel like authorities on the history of western thought.

Of course I'll give you the benefit of the doubt, as far as I know, you could be a full professor of philosophy in Cambrige University.

In that case I fail to see your motivation in bragging here about your scholarly achievements and being demeaning to all of us ignoramus who did not had the opportunity to receive such a magnificent education as yours. But I perhaps have to thank you after all, for devoting your precious time to spot my ignorance.

Aristophanes:
I'm familiar with your sophmoric understanding of what law and justice is. You speak as if your thoughts aren't one or two thousand years old.

Where did I claim to be presenting anything so very original?

Aristophanes:
Good luck with that.

You seem to be unfamiliar with recursive notions. That's a problem when trying to understand complex social phenomena that often have feedback loops.

Aristophanes:
This is funny too. Remember when I said you were putting words in the whole of socity's mouth?

Well, "progressive" seemed well adequate to describe someone inclined to substitute the traditional framework of social rules for his own system that has been proven to work in his own imagination.

But maybe not...

Aristophanes:
I said, "the conflation of law and justice"; monopoly and "right." I'm comparing the implications of one concept to the other and saying that they aren't the same thing and are related by people's misunderstanding of what they are. What is 'right' to 'society' (utilitarian, consequentialist, ends focused ethic) is not necessarily right (since there is standard of verification). In other words, modern legal systems meld deontological ends with consequentialist means to the detriment of the cohesion of the purpose of melding them in the first place.

I'm not talking about what is right to society.

I'm deliberately avoiding all the loose abstractions that generally reduce discussions about justice to an inane amount of jargon and nonsense.

I'm talking about concrete systems of decision taking, and about the incentives governing the behavior of the people supporting these systems in the real world.

That is precisely to avoid the unnecessary metaphysical complications of specifying what means "necessarily right".

I see the justice system as a real world set of institutions and mechanisms devoted to produce a given result within a general social environment and law understanding.

And by being a real system, it is bound to be inexact and imperfect.

You try to think in terms of abstract ideals of perfection that exist only in your head, but that you nonetheless think are so pertinent that you're willing to throw away millennia of accumulated wisdom in favor of your own vision.

Aristophanes:
I love when people aren't smart enough to comprehend the things they read.

And I love when people aren't smart enough to comprehend that on the internet any unemployed loser in his mom's basement can be a pretentious douchebag with a full spectrum understanding of all matters.

Re: a problem with the rothbardian legal system : infanticide

Aristophanes — Mon, 25 Mar 2013 18:33:18 GMT

I believe many americans prefer to live in a dry county in Kentucky than in Las Vegas.

Actually, we can't know how many people woulde want to live in Nevada since the Federal government owns almost all of the land there. Top secret airplanes and weapons won't build themselves in secrecy in a desert. I think Las Vegas and Louisville are comparable to each other in population size, but where you want to compare them for being rigidly different in living acceptablity; Las Vegas is where peopel gamble and see prostitutes while Kentucky is where Census workers end up lynched (in 2010). So, back to the metaphorical drawing board...

Re: a problem with the rothbardian legal system : infanticide

Meistro — Mon, 25 Mar 2013 18:09:15 GMT

They can be banned, but where is the benefit, aside from to the bureaucrats who get paid to enforce the ban and the sanctimous thrill of forcing people not do things they want to do? Unlike other types of intervention, such as a tariff, which while still over all to be harmful to the economy, that at least has the dubious merit of benefiting a producer in enabling them to charge higher prices for their good, at least in the short term.

Crowds of undesirable? To the participant in vice, I am sure those sanctimonious busybodies who gather and agitate to take away the freedoms of non violent individuals are also crowds of undesirables. To be sure the solution of decentralization, and allowing local comunnites to enact these archaic puritanical customs would be radically superior to the present system, since one could gravitate towards areas who's customs suited your own individual philosophy of morality instead of forcing the will of the majority or the plurality upon the victimized minority but better still would be to do away with the mechanism of denying freedom to individuals, that is to say to abolish the state and for individuals to interact upon purely voluntary terms. Just because some people feel justified in using the power of the state to crack down on those of us who have, in their eyes, dubious moral character does not mean this injustice is right. It should scarcely need to be mentioned that just because an individual or a group of individuals wants to do something, that thing should not necessarily be done. There is a very specific criteria for action which is permissable and action which is impermissible. Action which is forbidden to all is that which would initiate force, fraud or coercion against another, as is clearly the case in punishing a man for purchasing a good or service you do not approve of, or partaking in a game of chance. Why can't the desired puritanical sub-society be established by voluntary means, if it is indeed truly desired instead of an excuse for those in power to crack down on their enemies? I suspect that most likely in these busy-body segments of society you would be shocked, absolutely shocked, to learn that gambling (or whatever vice) is occuring, and indeed those who are the most vocal critics of vice are as apt as any to participate in it. But let a community shun and ostracize a gambler, a drug user, a john, a protestant or whatever hated minority (and who would want to live in such a bigoted sub stratum anyway, if you were a member of the hated group) and in that sense preserve the precious paleo cultural, instead of employing the means of brute coercion to reform man of a nature which he cannot be reformed from.

Re: a problem with the rothbardian legal system : infanticide

ToxicAssets — Mon, 25 Mar 2013 17:46:08 GMT

Meistro:
Bans on alcohol, drugs and prostitution are bad (bad in the sense that they benefit only the bureaucrats who enforce these prohibitions and cause losses of utility to consumers and losses of profit opportunities to producers)

Not always. I agree with you that nationwide a ban of these things would create a lot of problems, but at the local level these things can be effectively banned.

Activities like gambling, prostitution and drug using tend to attract crowds of undesirables.

I believe many americans prefer to live in a dry county in Kentucky than in Las Vegas.

One of the neat features of the american system is precisely this possibility of coexistence of very different ways of life under the same constitution, and the high degree of liberty afforded to people to simply move to places more suitable to their life styles.

And some people do prefer stricter local laws. It would be as wrong to make the whole country as Las Vegas as it was to pass the eighteenth amendment.

The problem with some ideologues from the left and right is that they believe in their own set of rules a one-size fits all solution, and the only acceptable, when the world is probably diverse enough to accommodate solutions tailored so to fit the specificities of each local group.

The same is valid for things like gun control and abortion. There is no single solution to a country as large as the U.S., but a lot of reasonable solutions to each smaller community.

Meistro:
and pollution has very real and definite victims, especially once you do away with this idea of the state owning lakes etc.

But still it is hard to evaluate how much each "victim" is being individually victimized, specially since a lot what they consider losses happens in their shared sense of a healthy general environment, and not so much in their insulated properties.

Re: a problem with the rothbardian legal system : infanticide

Meistro — Mon, 25 Mar 2013 16:22:07 GMT

Bans on alcohol, drugs and prostitution are bad (bad in the sense that they benefit only the bureaucrats who enforce these prohibitions and cause losses of utility to consumers and losses of profit opportunities to producers) and pollution has very real and definite victims, especially once you do away with this idea of the state owning lakes etc.

Re: a problem with the rothbardian legal system : infanticide

ToxicAssets — Mon, 25 Mar 2013 11:33:42 GMT

Meistro:
Every crime has a victim and every action which is criminal but has no victim or the victim is some vague collective is not really a crime, that is to say it may be malum prohibitum but not malum in se. The victim is the person who is hurt by the criminal action and it is on their behalf that justice must be carried forth. The victim was hurt, and therefor something must be done.

Things are more complicated than that.

I agree that sometimes people get a bit confused when talking about "vague collectivities".

But still people think in somewhat collective terms when they make their judgments.

They have an idea of the physical and spiritual environment they live and they think justice must be occupied in rectifying the actions of those who attempt against the integrity of those ecosystems, even when their actions cannot be easily linked to any harm caused to a counterpart.

There are many examples to think about.

Like pious communities that ban drugs or alcohol or prostitution, to the problems caused by pollution and other external costs which are byproduct of the activities of a large number of people crowding somewhere.

So what is the most rational course of action? Is it simply to hurt the criminal, which is of no benefit to the victim, aside from any psychic sadistic satisfaction they may have in seeing the criminal hurt? Why not embrace restitution, which is benefiting significantly the victim? Of course you cannot unring the bell, you cannot take back the assault or violation which took place, but what you can do is force the criminal to benefit the victim through restitution.

As I've attempted to clarify before, the goal of any system of justice is to reduce a number of social costs to a the class of law abiding citizens that pools the resources tapped by this very justice system.

These social costs are the "injustices" or "crimes" or "rights violations", as perceived by those who are mutually recognizable as citizens-members of a rechtstaat.

Restitution is, when available, one course of action that effectively reduces the costs and risks imposed by criminal activity on law abiding citizens.

However it's not always available, as oftentimes the criminal has no valuable to be repossessed by the victim, or the victim is no longer alive or in any conditions to be fully restituted by material claims on the criminal.

In these cases, the costs imposed on the particular victims of the particular crime are (unfortunately) foregone conclusion.

But the justice system still can bring justice to them by applying severe punishment to the criminal, not because that will satisfy any sadistic inclination, but because of the clear message such a punishment will send to all of those contemplating the prospect of engaging in similar unlawful activities.

As prospective felons lower their criminal profiles in accordance to the perceived higher costs of legal punishment they might face by engaging in crime, their prospective victims gain.

Nothing can be done in retrospect to restitute the victim of an actual murderer or rapist but a lot can be done in prospect to the potential victims of potential criminals by making these crimes a lot costlier.

Every other system of justice is simply using the victim as an excuse to carry out depredations of their own. Restitution is focused on benefiting the person who was hurt by the action, punishing the criminal in proportion to the offence using the philosophy of two eyes for an eye OR presenting as an alternative, if the victim so chooses, restitution.

Whenever you find yourself say things like "every other system except my never tested one is wrong", stop, breath, and rethink your position a few more times.

It's the easier task in the world to find what seems to be faults and defects in human systems operating in the real world, specially when our criteria for comparison is based on the perfection of our ideal conceptions of what things should be.

I'm not saying that the current status quo represents the best of possible worlds, I'm just saying that if we want to improve the status quo the best strategy is first to understand how it works in comparison to concrete alternatives and to think of an incremental approach that makes it a little bit less ineffective, one step at a time, instead of thinking of large scale revolutionary reboots on the whole social fabric, which ultimately is something that escapes anyone's grasp.

The idea that our present legal system, which has been composed in an illogical and ad hoc fashion, which criminalizes a great deal of peaceful interactions between individuals and which is used to rationalize plunder and theft is somehow superior to the idea of a legal system based upon defending property rights and making right wrongs committed against individuals is absurd.

Well, logic cannot be the foundation of any form of knowledge about the real world.

Logic are just the formal structures and rules of language that we use to articulate statements in an attempt to form a larger argument.

But any argument about the reality will be based upon assumptions and observations that are neither perfect representations of the underlying phenomenon, nor the logical derivative of such perfect axioms.

That is, our understanding of things will always be less than perfect, because our minds and language are themselves limited and contingent to the reality they are trying to assess.

And the evolutions of this understanding are not based merely on logic elaborations of extant principles, but on the incrementation and substitution of established principles in face of new observations.

Furthermore, to overestimate the value of revolutionary programs due to their apparent logical structuring, compared to the less formal systems we have acquired from tradition, was the fatal conceit of many so-called rationalists that in the last 200 years since the revolts in France have consistently formed the vanguard of the greatest crimes committed against mankind.

Re: a problem with the rothbardian legal system : infanticide

shackleford — Mon, 25 Mar 2013 04:55:50 GMT

Stephen Pratt talks about Roman Law and Common Law.

http://www.youtube.com/watch?v=bfTSYe72KsI

I just discovered that he died this past December. That's unfortunate. I've listened to the video above numerous times and enjoyed its insight every time.

libertyandlearning.com/

Re: a problem with the rothbardian legal system : infanticide

Aristophanes — Mon, 25 Mar 2013 04:42:54 GMT

His characterization of Roman law as opposed to the "pathetic" germanic tribes (England) is discussed by Montesquieu in his Spirt of the Law and he refers to the brilliance of the English system, which originated in the Germanic tribal relationships, and slowly spread to replace the 'virtue' ethic of the Romans (albeit in a monarchical system). He looks up to the English because he sees the importance of having different branches of government to check the interests of the various brokers (should sound familiar).

Bottom line, I don't know what time period the kid in this thread was referencing for his comparison to Roman law, but my guess is that he doesn't understand the evolution of the Victorian system which makes me think that he probably doesn't know a whole lot about Roman law either since the Victorian system largely replaced it and is obviously foudated differently.

Re: a problem with the rothbardian legal system : infanticide

Neodoxy — Mon, 25 Mar 2013 04:07:19 GMT

Aristophanes,

"You do not know what you are talking about. "Pathetic" German tribes? Are you speaking of England and its Constitution? Have you read Montesquieu? Or Rousseau? Have you even read the Federalists? This is why I don't take people on here seriously. It is force of habit that even reply to you people."

I am NOT challenging anything you're saying here, I'm merely interested what some of the specific insights are that he is missing. I know next to nothing about law and I'd like to know what exactly you're referencing.