Saying “let the market decide the laws” is ideological advocacy in that it is saying laws should be produced in a way that is consistent with libertarianism. It is not necessarily saying that the laws that are actually produced should be of any particular form. Only in this sense is this kind of argument “non-ideological”.
So lets say we have a die-hard communist, who cannot be persuaded that libertarian laws are the way to go. Instead of trying to convert them to support libertarian laws (very difficult), we might be able to persuade him that laws themselves should be produced by markets. That way, he can have his communist laws, and everyone else can have whatever laws they want. If he agrees to this, he is a libertarian with respect to law, and a communist with respect to everything else. But this kind of communism is voluntary communism, which is not incompatible with libertarianism.
Now, if this kind of “non-ideological anarchy” (where there is a free market in law, but generally non-libertarian laws) is acheived, I predict that many non-libertarians will convert to libertarianism, when they start to see that it is in their self-interest. So this is a kind-of shortcut to libertarianism, which is utilizing the power of markets to convert people, rather than just relying on education. Showing rather than telling.
It must do this, or else it is not advocating anything at all. If nothing else, we have to specify that laws such as “Everyone has to follow communist laws, regardless of whether or not they agreed to them” are illegitimate.
This is confusing two different types of law, as I mentioned earlier. There is consensual law (e.g., the rules of a voluntary commune), and there is fundamental law (which is not consent-based). The latter must logically precede the former. We can easily have a market for consensual law – and as you said, certain consensual regimes will be favored over others, depending on individuals’ preferences. However, there cannot be a market for fundamental law – this must be directly advocated.
The thing is, though, that this fundamental law is much more detailed than you might think at first. You might think that it is enough to say “Don’t impose your legal system on others,” and the rest can be handled by consensual law. But in order to explain what counts as “imposing,” we have to define a domain of legitimate action (a.k.a property rights), with all the complexity that entails.
Zavoi, have you read http://faculty.msb.edu/hasnasj/GTWebSite/TIL.PDF ? If you have read it and still hold the position you do, my response will be pretty dramatically different than if you haven’t.
Actually, having thought about this more, I think it is basically just a misunderstanding.
The point of most of the quotes you posted in the OP was that, when people ask something like, “How would punishment be handled in anarchy?” the answers involving theories of proportionality and such, while not totally irrelevant (perhaps), are certainly not an answer to the question of how things would be handled. The usefulness of such theories now is to explain to the skeptic that there can indeed be workable legal arrangements in an anarchy. The place of such theories once in anarchy would likely be to influence legal theorists at private courts and the consumers that patronize them (whether such theories would have positive impact I will not get into here), but I don’t think that is usually what’s being asked in the threads you are referring to.
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Also, the idea of advocacy is a very odd one. If we disambiguate the term, it seems to have two components (color coded for use below; otherwise indicated for those that can’t see the colors).
ADVOCACY:
Getting people to see things by helping them avoid reasoning errors, giving them correct information covering all angles, and helping them see the logical implications of what they already believe (akin to the praxeological approach) (this does include ought-from-an-ought arguments)
Empty rhetoric, flawed arguments such as “is-to-ought” ones, and persuasion of the dark arts variety - why? because if anything in this component is otherwise, we count it as an example of (1)
I am yay/boo all sorts of things: I would like to see less IP and tariffs; I would like to see more nullification and secession. But that is because I see IP and tariffs as only existing (at least, in as strong a form as they do) because we have states. In the statist context, where we have the vast machinery of coercion to either use or allow to be used against us, empty rhetoric is perhaps useful for getting the state off our backs. Hoppe may actually be helping by advocating his flawed argumentation ethics because it may convince some people - although they will be liable to defect in the long run if they examine their views more carefully; but hey, in the long run we’re all dead - even though I seriously doubt it.
I may still advocate [as in 1] against IP once we are in anarchy, but I do not think advocating [as in 2] has any use in anarchy, even if we assume it might have some use now.
But this advocacy [1] is of course just helping people to think better. This is crucial to understand: when I make my anti-IP arguments, or any argument for that matter, I continually make a conscious effort to better the listeners’ clarity of thought on the matter. That isn’t just something I do as a bonus, that is my whole method of convincing people. Basically my view is that if people thought more clearly we wouldn’t have states, and we would for instance have only very weak or nonexistent IP except in peculiar social milieus where it was truly supported. I am confident that getting people to think more clearly is the way forward, and in most contexts I find it unelucidating to call that “advocacy” since it doesn’t disambiguate 1 from 2.
After all, insofar as we are right that most everyone would be better off stateless, everything we do to get people to think more clearly must on average move them toward our position.
I don’t think the workability of anarchy is in doubt in those threads; if all we were looking for was a solution, then we could just say “Randomly choose a punishment” and the question would thereby be answered.
What is being asked there?
But it seems that the people in the linked threads are unwilling even to do that. Advocacy[1] (“ought-from-ought”) uses legal theorizing to show that X is tantamount to Y; e.g., “Tariffs are theft, and we all agree theft is bad, right?,” but this legal theorizing is shunned in favor of a “value-neutral” approach that claims to assume no ought-premises at all (“In anarchy, nobody would be willing to pay to collect tariffs”).
(It’s a separate issue whether or not there is an “objective” legal theory; if there is, it would naturally be useful for salient-point-shifting, but failing that, ought-from-ought arguments would also do the job, but they are not being proffered there either.)
Perhaps this is not so obvious; the political class is large, and many people value relative status over absolute material wealth (“Better to reign in hell than to work a low-ranking desk job in heaven.”). Also, De Jasay says in The State:
I think it is a mistake to accept the suggestion that “market law” is somehow ideological. Statutory law and customary law (“market law”) are inherently different. Communism or any other statist economic order is inherently statutory in nature since it would never arise under customary law. Statutory law is so different from customary law that I think it is a mistake of language to even use the same noun (law) to describe both. Customary law arises through the resolution of disputes between parties who are sufficiently close to a parity of power that it is in the best interests of each party to come to the negotiating table and work out a rational agreement. Statutory law can only exist in the context of an all-powerful State who can unilaterally dictate the outcome of any dispute with itself. Statutory laws are simply pre-decided resolutions of disputes involving the State. Statutory “law”, then, exists in the same category with the slave-owner’s policies towards his slaves: if you attempt to escape, you will receive this many lashes, if you steal food from the storehouse you will receive this many lashes, and so on. Clearly, such pronouncements by a slave-owner towards his slaves are not “laws” at all, they are simply advisory warnings of punishments that will be meted out under certain conditions (not even with a guarantee that such punishments will not be imposed in other conditions!)
The issues seem to generally be raised in the context of the workability of anarchy - not necessarily by the posters themselves but by others they may want to convince. (Also to address uneasiness the posters may have about their own anarchist position.) That is what I think is being asked in those threads, albeit not always explicitly. That seems to be the underlying motivation for asking those types of questions.
For what it’s worth, in those types of threads I don’t think making specific value-neutral claims about how things would be is all that much better. At least, I would prefer to see such comments prefaced with “It seems to me that” or followed by an argument for why that might be the case. But even with that, the place of such comments seems to be to allay fears about anarchism’s workability.
Food for thought, yes. I suspect that people in the ruling class are not really as happy as they could be otherwise, but that is the same problem as convincing a friend that he’d be happier if he stopped being a bully or a shut-in, when their subjective preference is to continue being a bully or a shut-in.
You can never eliminate statutoriness, since a (de facto) property right is just the right to make decisions about what is done in a certain domain of action: “Don’t go barefoot in my restaurant;” “Don’t not pay taxes in my kingdom.” The only open question is: How much authority-to-make-statutes should each person have? In other words, How should property rights be allocated?
So when you say
, this is an inherently ideological prescription (insofar as it is a prescription), since you are saying that some property-allocation-schemes (e.g., “I control everything in the world”) are to be eliminated from consideration a priori, before any bargaining or negotiation takes place, since such a disparity makes any truce derived from it illegitimate.
It’s only a matter of degree; when one agent’s allotment of property becomes sufficiently large, then we start calling that agent’s decisions “statutes,” but it’s really no different from any decision you make regarding the use of your own property.
Also remember, again, that the State is not created by statute, since the State must already exist to issue statutes in the first place. Rather, the State gains its authority by custom, and only within that customary authority does it make statutes.
I actually think that the motivation for those kinds of threads is just to build up a reflectively coherent moral/ethical/jurisprudential framework for deciding certain questions, not to speculate on how there can be an institutional arrangement that enforces it. It is usually not mentioned what the purpose of building such a framework might be, and some say that it has no real purpose (since “the market would take care of it anyway, and ruminations on proximity-of-cause etc. are of no practical interest”), but I think it does have a purpose, which I discussed in my original posts.
You’re confusing two entirely separate lines of analysis.
But it’s not a prescription at all. Your responses so far strike me as exceedingly slippery and I find your preoccupation with ideology disconcerting.
I haven’t said any such thing. I disagree that “I control everything in the world” is an example of a property-allocation scheme. In the real world, property is not allocated by any one actor.
No, a truce cannot be derived from an assertion of control by a disproportionately powerful actor because bargaining and negotiation cannot take place. There is no normative dimension to this. It is simply the case. The mugging victim is not negotiating with the mugger over the price at which the confrontation can be resolved. “Your wallet or your life” really means “your wallet or both your wallet and your life.” The Prince is in a position vis-a-vis any commoner of overwhelming advantage or disproportionate power. No commoner can bargain with the Prince in any meaningful sense of the word.
Again, you are mixing entirely separate lines of analysis. Property law emerges from resolution of property disputes. Statutes are “overrides” of law enacted or requested by the Prince which the Prince’s courts honor. Statutes often alter the outcome of property disputes, especially when those disputes are with the Prince. The most notable such statutes comprise the tax code.
OK? Is there anything I’ve said that would suggest otherwise?
Only in the same sense that a gang holds its turf by custom.
Also forgot to add the most important reason for taking a hands-off approach: it doesn’t alienate other anti-statists. We have a whole bunch of people who agree we don’t want states, but we argue fiercely about the particulars although it seems to make little sense to do so.
In most real-world political situations, the “power” held by the advantaged party is not simply an extension of that party’s being (like physical strength, or the gun that someone holds in their hands right now), but is based on that party’s ability to command the actions of others. The Prince is not some superhuman with the ability to exert overwhelming force by a mere act of will – he is just another person with two arms and two feet, whom the soldiers happen to listen to. (Recall Étienne de La Boétie’s insight about power and consent.)
Outside of speculative scenarios where technology enables someone to directly use force to oppress the people, all governments rely on the people’s tacit consent or acquiescence to their power, without which the Prince would just be some guy talking into the air. But why do the people continue to give this consent? Because it is marginally harmful to withdraw it, in the same way that it is harmful for one person to unilaterally start driving on the other side of the road without planning this transition with others first (i.e., “ideology”).
You seemed to suggest that you favor a society where law (property dispute conventions) are not overridden by statutes (State decrees), and therefore you oppose the existence of a State. But if we recognize that the State originates in convention rather than in statute, then we see that simply supporting the non-overriding of conventions is not enough to imply opposition to the State; if we oppose the State, then we must oppose certain conventions (e.g., the convention that the military follows whenever they obey the Prince’s orders).