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.
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.
Freedom has always been the only route to progress.
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".
Democracy means the opportunity to be everyone's slave.—Karl Kraus.
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.
@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 -
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.
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.
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.
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:
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.