I wish to challenge a certain sentiment I have seen expressed here by a number of different people. I often bring this up in individual instances, but I figured it would be better to address this as one unified post. (Follow the links for more context, although I’ll summarize later.)
The sentiment underlying all of these quotes is the idea that we libertarians do not need to concern ourselves with the nitty-gritty of libertarian legal theory (e.g., “Is intellectual property legitimate? Is abortion allowed?”) because we can rely on a freely-competing marketplace of legal systems to settle these questions. These issues are purported to be in the same class as any other question of consumer preferences: What kind of restaurants should be made available? How fuel-efficient should cars be? We would not consider centrally-planning these decisions, so why centrally-plan the legal system by claiming that we know the right answer to these questions?
I believe that this idea is a naïvely cavalier form of anarchism that seeks to abolish everything in sight, to the point of abolishing the ground out from beneath our feet.
(The post I wrote grew rather lengthy, so I put the rest in a PDF in a ZIP abdic.zip (101 KB). Let me know if you have trouble with it.)
Zavoi: I think asking “what should the law be?” in a centrally-planned law society is logically equilvalent to asking “how should automobiles be designed?” in a Soviet style centrally-planned economy… I can know that automobiles should be designed by competitive producers without knowing what features will ultimately emerge from such competitive production. I don’t need to know whether manual or automatic should be* the primary form of transmission in order to say that the central-planners almost certainly have the wrong mix of manual versus automatic transmissions. The same goes for law. I can guess certain things that the market would improve over our currently centrally-planned law society. But I don’t need to know which laws need to be changed in which ways to say with confidence that our laws do not reflect the desires of the customers of law services.
I just skimmed your PDF, I will read it later more carefully. Libertarianism is a belief about means, not ends, but it certainly favors certain ends over other ends. For example sexisms wouldn’t be profitable in a libertarian society, so in the long run it would be wrong. But for other cases we do not know, for example with intellectual property rights. I agree that you have to give people a concrete idea about what they are facing, but that is not libertarianism anymore. Libertarianism is only selecting a means, anything else goes beyond the scope of libertarianism.
Well, we can imagine some ways in which an anarchic society might work. Our point in exploring these options is to prove that there is at least one workable non-government solution. We are also open to other solutions.
Example: Free market roads have been provided using a toll service, or were sometimes donated. Would modern markets choose this method? Donno. But pointing to one solution is a way to show the feasibility of anarchism.
I… I really don’t know what the speed limit would be on anarchist roads. To avoid being accused of “copping out” I’m going to choose 68.234 mph.
You seem to be saying that although you don’t know what the “market-correct law” is, there is such a thing, and the current legal environment is not that.
While this is true for cars, restaurants, etc., I’ve argued (in section 2) that there is no “market-correct law” in the same sense, because the kind of law that emerges is not determined solely by individuals’ preferences.
Right. I suppose my criticism is of those who propose the abolition of government but do not want to play any part in shaping the subsequent society.
Well, the speed limit is a market issue, like an automobile’s specifications or a restaurant’s dress code. The question of law is: “Who has the authority to determine the speed limit on this road?”
I guess it might be easier to include the full text of my post directly; I’ll include it below:
Much has been made in libertarian circles of this distinction, to say firstly that order can emerge without centralized authority, and secondly that such an order will be subject to a different (in a good way) sort of incentives from a “centralized” order. De Jasay writes*:
*(Freedom from a Mainly Logical Perspective)
First recognize that the rule under which new rules are made (what De Jasay refers to as the “rule of submission”) must itself be a spontaneous rule – otherwise the whole system could never get off the ground. A democracy did not become a democracy because a majority voted for it, a monarchy not because the king decreed it, etc. Secondly, it’s important to observe that the rule of submission is not the only rule characterized by the ability to generate new rules: in fact, every rule of property (which, taken broadly as by Rothbard, can be interpreted to encompass (almost) all social rules) contains within it the ability for someone to make rules governing that property. E.g., If you’re in my restaurant you have to wear shoes and a shirt. Thus we see that, contrary to De Jasay, “spontaneous” and “rule-made” rules differ only in content, not in form. Statism and libertarianism are just two different ways of drawing the property lines.
2) The indeterminate and self-fulfilling nature of order
So suppose that we did away with the current government, and mind-wiped everybody to remove all their statist biases and prejudices – in short, created a pure state-of-nature. What would the new emerging order look like?
Some would say that there is a particular property allocation scheme that would emerge out of this state-of-nature, for economic or whatever reasons, and that this is what libertarians should advocate. This way, we have a concrete policy recommendation (i.e., a way of distinguishing our proposed social order from all the others, as being more “natural”), while at the same time we avoid engaging in any normative or ideological advocacy (since the demonstration that this order follows from the state-of-nature is purely fact-based).
However, to make a long story short, there is no particular order that follows from the state-of-nature.
2.1) Hawk/dove games
Cowan and Sutter picture social conflicts as a hawk/dove (or “chicken”) game, where each player prefers the other to back down, but for both to challenge results in huge costs. (Follow the link to see the diagram.)
In other words, every equilibrium, once established, is self-enforcing because unilateral deviation would result in a worsening of one’s position. Furthermore, there are as many equilibria as there are space-filling* property allocation schemes – among which is included statism.
*I.e., leaving no feasible action unallocated. (Backdown, Backdown) is not space-filling.
2.2) Salience of equilibria
Perhaps there is some reason why a particular equilibrium will be selected over others? For example, in a bilateral ultimatum game, where two players must agree on a way of dividing a dollar between them, it seems most “natural” for each player to get 50 cents.
This sense of “seeming natural” is known as “salience,” and is discussed by Thomas Schelling in his explanation of a “Schelling point.” From the SEP:
While such salient equilibria may exist, they exist only by a mental whim of the parties; they are in no way objectively determined, even if the parties’ individual economic preferences are given. Thus, a pure mind-wiped state-of-nature will have no general tendency to settle on any particular equilibrium rather than another. As it so happens, the salient points currently existing in the minds of people today are ones that grant the State the authority to make rules governing nearly everything.
3) Conclusion
If libertarians want to have any impact at all, they must try to change the generally-accepted salient-points from statism to libertarianism. This cannot be done solely by economic reasoning (since economic preferences do not determine salient-points), nor by an appeal to decentralization as a purely formal, non-content-based specification for a social order (since the rule of submission is itself a spontaneous rule). Rather, we must actually take a position and engage in ideological advocacy to alter people’s opinions. And this means taking a stand on issues such as IP, abortion, slave contracts, and so forth.
Nonsense. Dispute-resolution necessarily reflects the preferences of the individuals involved in the dispute. Law emerges from the body of successfully resolved disputes. Nothing else is law. Specifically, statutes are not law. Statutes are simply the announced policies of the government, which it may or may not follow. Statutes are intended to override any applicable law derived from case history (real law). You can think of a statute in this way, “This statute is a declaration of how a dispute about XYZ between any private individual or organization and us will be resolved.” For example, tax statutes are a declaration of how much money the government will take from anyone involved in a dispute with the government and by what rules the government will calculate this amount, rules which it may or may not follow in any given actual dispute.
It might sound like a cop-out to you, and it may very well actually be that the anarchist has no idea how something will work. But “where there’s a will, there’s a way” is really a core of advocating the market. I genuinely believe in human creativity. If there were some service that I have no idea how to provide on a free market, I will still advocate it because I have “faith” in the market process. Does this make me an idealogue?
Its the dude with the biggest guns, or the biggest mob, or whatever. The question is who is let by his peers to be the law making authority? It makes economic sense to not bash up the factors of production, so it is likely that the NAP and respect for homesteading would arise spontaneously on the market.
Cus everyone has more stuff if you follow those rules. There might be an individual desire to cheat on the rules and be a criminal, but its all just a matter of how you sell/defend liabilities.
If two people each claim to be the road owner, how can this dispute be resolved?
The people quoted in the OP, although they would probably dispute this.
Because otherwise nobody will have an incentive to deviate from the status quo, just as you have no incentive to unilaterally stop using government fiat money. The “libertarian society” is an equilibrium, but then again so is the current situation.
Is there a role for ideological advocacy or legal theorizing in this?
What do you make of the claims of Schelling and Hume that the choice of equilibrium depends on psychological traits (that are not preferences)? If you and I are to play a game of chicken, as in Cowan and Sutter’s example, our individual preferences are clear (I prefer CB > BB > BC > CC, you prefer BC > BB > CB > CC), but there is no way of deducing from this what the actual outcome will be.
Is law a “service”? The nature of dispute resolution is such that somebody always gets something they don’t want, so it’s not clear how consumer choice can play a role in a “market” for legal systems.
As Cowan and Sutter say, “The costs of conflict provide an incentive for a peaceful resolution of the confrontation…, but do not determine which equilibrium will prevail.” Once a peaceful resolution is achieved, it is costly to provoke violence by deviating from it, but ex ante there is no clear economic reason to expect one peaceful resolution (e.g., NAP) to prevail over another. Non-NAP equilibria don’t necessarily have to involve bashing up things.
By the way, Sieben, I saw you post about your views on IP contracts in another thread; what do you think the purpose of this type of thinking is?