Referees in sports games. They sure could get bribed, but they know that if they do make bad calls they will not get called back and the public will see their mistakes on TV.
Most calls are right and if all refs are bought out by some large player then the public will no longer care for that league and they will form a new league with better market regulation.
This was a quick thought I had today. Has this been analyzed before to draw possible analogies to the market for law?
I had a similar realization a few months ago at a referee seminar (ice hockey).
Referees must be recertified every season (via attendance of a seminar and examination(s)) and are often times watched by superiors while officiating games. Referees are meant to punish those who cause an infraction with a penalty judged in response to the severity of the infraction (all penalty durations have a set length in time). Referees are meant to keep a cool head and remain polite to anyone who engages them (including the blowhard who stands with one foot on the boards intending to intimidate the official; just kindly ask him to speak at your level if he seriously expects to elicit any response).
Serious infractions, such as kicking a player (keep in mind: with ice skates on), are dealt with by a meeting in fornt of a board and suspensions range from a single game to 30 days if there is no hearing (if there is a hearing, the suspension can be extended in duration according to the results of the hearing).
More experienced officials are able to officiate games requiring greater athletic ability, patience, and personability whereas games with younger and more inexperienced players may allow for younger and more inexperienced officials (minimum age is, I think, 12 years old).
I’m glad this subject has come up.
Personally, I dislike the referee analogy because I think that’s actually a lot how the State’s judges think of themselves. Within a particular league, referees are a lot like national judges in the sense that they are a “monopoly” within that league. Of course, this is like the monopoly a restaurant has over serving food on its premises but the point still stands that the analogy doesn’t capture the ‘wide open competition’ nature of the market.
A better analogy might be marriage counseling. You have marriage counselors who can, in some cases, help couples resolve their disputes or get a handle on them. But there is no coercive power binding the parties to attend at all. The counselor is merely an advisor and cannot ever begin a sentence with, “I am ordering you to …” Even a referee can give orders - ever heard of a technical foul in basketball?
True, free-market law is law that is based on human nature and reason to such an extent that disputants will voluntarily consult the services of an arbitrator in a way similar to the way married couples seek counseling and dispute-resolution services from marriage counselors. Just like marriage counselors, arbitrators in a free-market in law would have absolutely zero binding authority. And, just like a marriage counselor’s advice, the advice of an arbitrator could always begin with the phrase, "If you want to have peace and settle your arguments, then … "
To build on this analogy further, there is a significant difference between a married couple and random participants to a business transaction - repeated dealing. And I think this is one of the false “benefits” of the State… it reduces the costs of random business transactions by making the relationship between everyone within its territorial borders more like that between married couples. That is, we’re all “locked” into a binding relationship with each other by virtue of our citizenship and by virtue of the complete information that the government has about each and every one of us. There’s virtually no escape and resistance is futile. This means that businesses must spend less money protecting themselves against fraudsters, etc. The cost, however, is that now you have Leviathan. Hobbes and Bentham thought it was a great idea but … Stalin and Hitler agreed.
The solution is simple - let people be responsible for their own security. If you want to ship a product, you need to be aware that it can be stolen or lost and purchase the requisite insurance (and follow the guidelines required to qualify for the insurance coverage). The market will the direct people to the right level of “boundness” for a given type of transaction. One of the riskiest sorts of transacting is international tourism - tourists are at tremendous risk to local fraudsters, extortionists, local police corruption, etc. Yet, somehow, the international tourism industry rolls on without the UN regulating it (yet). People stay in safe places (brand-name hotels), and consult known-good local guides who help keep them out of trouble. The same kind of thing is needed in law to help people form relationships that have the right level of binding - not too much so you have Leviathan and not too little where the other guy can just walk off with your stuff.
Clayton -
Unless the market participants gravitated towards arbitration services that offered binding resolutions, right?
I don’t know about you but I know I’d like a service that promised a binding resolution. I’d want to know that that particular arbitration service contracted with a protection agency that would unconditionally attempt to enforce a resolution. I wouldn’t want to give my money to anyone who offered anything less. I wouldn’t be satisfied with a blacklist or anything like that.
The other thing to consider here is that both parties involved have presumably gone to the marriage counselor voluntarily whereas in a criminal situation one or both parties may disagree about who they should go before. When I’m searching for a private protection agency, I’m going to want one that can promise me that they’ll bring the counterparty to the proceedings whether he/she wants to be there or not.
As to the OP: in the (unrelated in my opinion) analogy of a sports referee, the referee’s jurisdiction is essentially absolute within the context of whatever game they’re refereeing because they’re contracted by the sports league and the players all play for teams who agree to play by whatever rules the sports league makes. So the issue of multiple questions of jurisdiction and competing authorities is never approached, everyone has already agreed to be ruled by the referees by the time they step foot on the field/court/pitch/cage etc.
No, I don’t think this is the correct answer because it takes an overly narrow view of the circumstances in which conflicts can arise. In the Friedmanite model (as best I understand it), for any two people who get into a conflict, they are either members of the same PDA (in which case, their dispute is resolved according to the “law” of that PDA) or they are members of different PDAs, in which case, the dispute is resolved according to the rules of the “binding” contract between those two PDAs.
I have a theoretical beef with this model because it introduces the division of labor into the situation before analyzing the matter prior to division-of-labor. What happens when somebody with a PDA gets into a dispute with someone without a PDA? Perhaps the lone individual is better armed than the PDA itself or is just “hard to kill”. The problem is that rights have been “decontextualized” to borrow a term introduced by another poster, though I’ve forgotten the nic.
And what makes something “binding”?? To me, it just means that one party claims that they will physically fight for it - a claim that may or may not be true! Bindingness is extremely fuzzy because it’s actually game-theoretic. How binding something is depends on the threats attached to it, and the bindingness of those threats depends on their credibility, which is not just a function of funding, manpower, etc. but basically of “everything.” A white man living in an all-white and highly racially-sensitive neighborhood might commit a crime against a black man that he could never get away with under the rules of his PDA or the PDA of the black man but is counting on his “buddies” throughout the community to watch his back. The “binding” agreements between the PDAs become moot at this point. In fact, the fuzziness of what it means for something to be binding can be thought of as the space in which politics resides.
My view is that a free market in law is a market in which voluntary producers of dispute-resolution services compete on reputability and effectiveness without the need for “binding”, which is costly. Obviously, this won’t work for international gold shipments… the two parties can’t exactly go to “marriage counseling” over a multi-hundred-million dollar shipment of gold disappearing mid-ocean. So, for large-cap stuff, you need more “binding” in the agreement. Perhaps the CEOs of the respective partners each travel to the other’s site to be held as surety for the shipment until it has completed its voyage and the check for the shipment has cleared. But this is just a security question, there’s really no “ought/should” aspect to it, which is where law comes in.
Introducing guns into a transaction in order to secure it definitely makes sense. Basically, I want to buy a million dollars of gold from you and you want to sell a million dollars of gold to me. So, I go over to your side and your PDA holds me at gunpoint and you come to my side and my PDA holds you at gunpoint until the transaction has cleared. But I don’t think this describes the world we live in at all. We live in what I term a “threat-based social order”. Division-of-labor itself is dictated by command. This is a problem for obvious economic reasons. But more importantly, people constantly confuse this with securitized transacting, which it is not. If we both live under an extremely powerful State, that is not the same thing as you and I independently securing our respective ends of a risky transaction.
Where this becomes obvious is when you look at the political component. If you’re the governor’s son, all of a sudden, the entire dynamic has shifted… I’m actually helpless and you have all the guns. But even if you’re not the governor’s son, you could be buddies with his son. And so on. So the incentive is for everyone to clamber over each other in a mad rush to get closer to the Leviathan so they are better secured in transacting with anyone else. This is madness, not social order.
By eliminating PDAs from the first analysis, I think you get a cleaner analysis. Sure, there will be PDAs, of course. Large-cap transactions require more guns to make sure nothing goes wrong or that things can be handled tactically if they do go wrong. But not everything will necessarily involve a PDA. In fact, PDAs are costly (so are public defense agencies, i.e. States) so those are poor or who have very little capital will generally do without them or find other ways (e.g. employment contracts) to get the benefits of PDAs without paying for them directly. And it is precisely in this “social substrate” or “pre-law” where most social norms arise.
I guess it all just depends on how you look at it. I prefer to analyze PDAs and law as “unbundled” services not because I believe they can’t be bundled but because I believe they would likely exist in both bundled and unbundled forms in an unhampered law/security market and, therefore, the most general analysis is the unbundled case. Basically, if you steal my TV, I’ll send you a letter saying, “You have stolen my TV. I have security video footage showing you stole it. You must return the TV with a check for $X (the customary amount) by such-and-such date (the customary time for making whole) or appear for arbitration of the matter. If you choose not to respond at all, I will ask my defense agency to recover the funds forcibly. This action is justifiable in a court of law, please see case John Doe vs. Joe Blow.”
If you don’t respond in the allotted time, I will call my defense agency and explain to them that you stole my TV and would they please go recover the appropriate amount of property to cover the awards that would have been given in a court-of-law (perhaps by seizing your car or something). The “binding” is in the bullets of my defense agency (that is, in my own bullets which I have delegated to the defense agency). All security begins and ends with the self, with your own fists and your own brain. All else is just delegation thereof.
Clayton -
Referees would be akin to private judges, as in arbitration.
Where the analogy breaks down is that both sides have to be willing to come to the table. Private law cannot compel one party to the suit to attend, thus there remains a need for a court-of-last-resort which has power to compel attendance.
Basically you’re talking about civil suits between contractual parties. In such suits, both will typically be willing to come to the table. In criminal suits, one party is often unwilling. You don’t see much arbitration done for criminal complaints 
Why?
If someone doesn’t show up to a trial in which he is a party, then he doesn’t receive the best representation. If he’s convicted, he’s convicted. The question I have is how someone can be compelled to serve his sentence.
In addition, and while the following objection may not be based in logic, I feel you will often hear the objection from people that “You are free to play hockey, therefore any sort of rules a referee may enforce are, of course, totally voluntary as far as your adherence to them. We do not pick what country we live in, therefore we cannot leave the law to private firms. It’s totally different.” And, in some ways, they would be right that it is different. You can not pick what country you are born in, but you can choose wether or not you play hockey.
I also think you will hear “The rules of hockey will not effect anyone outside of the (hockey) game in either a negative or positive way. Therefore the rules of the game are, in the grand scheme of things, unimportant. Whereas in a nation, the laws effect everyone, therefore you cannot leave law to the hands of greedy capitalists.” Now, of course, you can turn this argument right around on them and say, “How can you leave the power of creating the law in the same hands as those who enforce it? That seems like a deck stacked against the common man, if there ever was one.”
To me, if there was ever any kind of private law that existed that I can’t believe isn’t even more regulated than it is, it would have to be parenting. You don’t need any sort of license, and in the US, mostly, you can raise them how you like, barring public school and and their crazy new eating laws that we have seen as of late. This kind of private law is the whole "if you live under my roof, you will do what I say. It is authoritarian at its finest, yet it seems to work, as most people in the world turn out to be relatively well-adjusted, and productive members of society; unlike the children who come out of long years of child-protective services. It is from this example where I derive that socialism is, at times, a perfectly reasonable system to use if in the right context. The modern family unit is a socialism in the sense that there are those who produce (the parents) and those who consume without producing anything (the children), and everyone shares in this wealth. The major difference, however, is that the producer is also the dictator of the socialism, which may render the family unit as not a socialism. However, so long as everyone consents to the socialism (I’m talking true, individual consent; not some nebulous social contract), then I am sure socialism would work better than it does in the coercive cases we have seen throughout history, as in China and in Russia. This brings me to another faux-authoritarian system called the home owners association.
if the parenting example is too specific, then take the homeowners association. That is true voluntary government as a whole, and this includes private law as well. If the association does not like yellow mailboxes, then, by God, they aren’t allowed, and this is perfectly legitimate because you consent to the rules set by the association. DO you have to like it? No. I don’t like that my ice cream shop down the street refuses to sell cookies and cream, but I’ll get over it or set up my own shop. Anyway, the home owners association always throws people for a loop on the private law question; in my experience at least.
Anyway, just some thoughts.
Let’s say he’s convicted, what then? Now you’re back to using force on him. Who orders that force? A private law court cannot use force, only one with the force of law behind it can. Voluntary courts excel in civil disagreements and virtually fail when one party is not willing to come to the table.
Without a legally sanctioned enforcement mechanism, the party left to enforce the ruling is the injured party. That just leads to fights and war and more problems.
Rose Wilder Lane points to this same problem, saying one of the major problems of the Saracens civilization–about as close to a libertarian society as has existed–is they had no civil law (see Discovery of Freedom p110).
Professional Sports and Private Arbitration (NBA)
Nope. Outlawry is a perfectly workable alternative and has been used in more than one culture (It is still in use in Somalia) as the last resort. No Leviathan needed. This doesn’t prove that private law is superior but it does prove that the “but we have to have Leviathan in order to have social order” argument is false.
Clayton -
Say someone sues Google for whatever reason and Goog refuses to come to court. Summary judgment against them, the other party wins a judgment.
No one else cares. The winner cannot enforce his judgment against Google. Where’s your outlawrey in that and similar situations.
Somalia’s not exactly a modern economy.
If no one cares, why should anyone care? A person and a “judge” can “award” anything they like between themselves. So what?
As I said, the existence of outlawry as a “prod of last resort” does not prove that private law is superior, only that it is possible to have social order without Leviathan. We can go into more depth if you want but I ask that you read Hoppe’s writings on the subject first.
Clayton -
Anthony de Jasay writes a lot on this also. See in particular Against Politics, Political Philosophy Clearly, Social Contract Free Ride, and The State.
Thanks I’ll check it out. I think in this case, possible is also greatly sub-optimal. It is, for instance, possible to live on nothing but potatoes…
The comparative outcomes of different social orders is a separate debate. First, let’s get the “it’s impossible!” argument out of the way. It’s not impossible. Having established that it’s not impossible to have social order without Leviathan, the next issue is what kinds of social order arise under Leviathan or without Leviathan.
To give you a hint, the most common mistake in these debates is that Leviathan advocates overlook the overwhelming incentive to abuse of power and to use legalism, bribes, lobbies, propaganda and so on to work around any sort of formal limits on the abuse of power, precisely because the incentive to do this is so overwhelming. I don’t generally like Molyneux but he can be pithy from time to time… as he puts it, the most profitable business of all time by far is the business of human farming, aka operating a government.
Clayton -
In an autarchist republic, no one has power over anyone else. All power is voluntarily granted and can be withdrawn at any time. So, I don’t think the same incentive structure towards corruption exists. It is the socialist-ethic which says that majority-rule should override individuals wills on X issue that allows corruption for it allows the aggression of majority rule to force laws on the majority dissenters.
I like that analogy 
awful.
It’s hard to come here and argue for autarchy and be accused of being a statist. I hate the modern abuses of the state as much as anyone. But I think there’s another way that might redeem the state. A way that we haven’t seen before essentially because for autarchy to exist in a practical form we require modern technology such as computers, the internet, and geolocation systems.
In a world without the internet, the only way to rule a massive society was via representation. Which meant the socialist-ethic of majority rule was ingrained in society as the only viable system. An autarchic society can reject majority-rule because we no longer need representatives like we used to. Distance and time mean almost nothing to a modern person.
As far as I’m concerned, you are a statist but you try not to look like one.
Why do you think the state needs to be redeemed at all?
How do you define “society”?
Regardless though, there’s a difference between representatives with plena potestas (Latin for “full power”) and representatives which are merely delegates, i.e. chosen to give an answer to something on behalf of others. Back in the late Middle Ages, monarchs started requiring delegates to have plena potestas for the assemblies they held. This meant that, legally speaking, whatever agreements the delegates made were binding on the people who had selected the delegates. In other words, those people had effectively already consented to any such agreements. Add to that the notion of majority rule, whereby an agreement was binding on all delegates if a majority of them favored it, and you essentially have the notion of representation that persists to this day.
Well, duh, you’re the who’s accused me However, statism as a label is properly applied to one who seeks state control and centralization of power–two things which an autarchic republic do not feature. So I consider it a complete misnomer in my case, and a mistake on your behalf. You’d be much more correct to accuse me of minarchism, though I don’t like the label because of its inclusion of the term ‘anarch.’
My motive isn’t to redeem the state. Rather I don’t think anything like a private-law based society without a legal structure of any kind is tenable or can be maintained over a long period of time or can successfully prevent a new statist regime from being created in its midst. If I was convinced that some private-law anarchic scheme were possible I’d be all for it. I pursue essentialism, which contains a minimal role for the state because I don’t think it can be done away with entirely, unlike the anarchs.
The suggested non-state replacements for what the essential minimal needs of what a government can do don’t seem viable to me, or couldn’t be applied to a mass society successfully. I think this accounts for the failure of history to show any anarch society in actual practice. The closest we have ever come historically to an anarch society always had some minimal role for government. We may never be able to get away from some minimal role for government. Specifically in terms of dispute resolution both civil and criminal, which is the main need, and for national defense generally.
Any self-identified group of people in the main. All I meant was that when people abandoned kings and moved to democratic republics, they didn’t have the technologies of communication that would allow any other system to work except elected representation, which then necessitates the socialist-ethic of majority rule. Today, via technology, we could easily ‘represent’ ourselves directly. Thus, autarchy is possible now and wasn’t then.
True, and I think ad hoc representation would still have a role in an autarchic society, but it wouldn’t necessarily be plena potestas as you say. The early American colonies did a similar thing, electing representatives with more or less power to negotiate on their behalf for important issues.
So you say. I’ve critiqued this claim about your “autarchic republic” at length in another thread - which you seem to have ignored.
A minarchist is still a statist, if you ask me. However, I don’t see how “minarchism” includes the term “anarch”.
In your last post you wrote: “But I think there’s another way that might redeem the state.” Those are your words. For you to claim that your motive isn’t to redeem the state in the face of what you wrote earlier is disingenuous at best.
Again, I’ve critiqued your position at length in another thread, namely the one originally about Rand Paul endorsing Mitt Romney. But I’m happy to engage you on it here - and anywhere else.
How do you define “viability” and “success” in this context?
I consider that to be irrelevant. Adhering consistently to the self-ownership and non-aggression principles requires opposing the state per se. Since you claim to adhere to these principles, yet you don’t oppose the state per se, I consider you to be inconsistent at best.
I honestly don’t care if we may never be able to get away from some minimal role for the state. That is the goal that I will continue to work towards on an intellectual level.
Regarding “national defense”, just what do you think is a “nation”?
In that case, would you consider a sports team to be a society? How about a chess club? Those are self-identified groups of people, aren’t they? How does “in the main” qualify self-identification?
I think you’re barking up the wrong tree. One could also say that today, with our more advanced technology, tyranny and totalitarianism are easier to implement.
As I see it, the question isn’t about the “viability” of different forms of government. The question is about the principles that we adhere to (or claim to adhere to) and the logical implications of those principles.
Where the governments of the early American colonies had representatives, those representatives were most definitely considered to possess plena potestas. The Virginia Colonial Assembly is the classic example here.