I’m trying to understand how a disagreement over maximum punishments would be resolved in a Rothbardian ancap world, with a single legal code, as he describes in For A New Liberty:
Rothbard is clear that maximum punishment is part of the single legal code, which “would be generally accepted, and which the courts would pledge themselves to follow”. My question is: what if most of the courts/people favor the death penalty for murderers, but a significant minority oppose the death penalty?
David Friedman talks about this in The Machinery of Freedom. He says there would be a bargaining process between the pro- and the anti- death penalty courts, to determine the sentence in each individual case. This is fine in Friedman’s ancap world, because Friedman has no single legal code in his system.
But Rothbard’s courts don’t determine maximum punishments, because these are specified in the legal code, which they merely apply to specific cases.
So my question is, will the courts have to reach one universal agreement (the code) which every court has to abide by, or can different courts cater to people with different views on maximum punishments, as in Friedman’s world? If they can, what does the single legal code really mean?
This isn’t exactly an answer., but I have become more sympathetic to Friedman’s conception of ancap than to Rothbard’s. MNR has idealism nailed down, but I think Friedman allows for a more realistic conception of market justice.
the difference dissolves if you posit that under the unviersal libertarian code the maximum agreed penalty for anything is death. then you just have the friedmanite mechanism do its thing. maybe all the security providers all decide to never enforce a death sentence, that could certainly follow from a libertarian legal code whose maximum ‘theoretical’ penalty is death.
Yes, I have too. I think I’m happy with how the Friedmanite mechanism would work when it comes to determining punishments. There is no need to conceive of a single legal code setting limits on punishments.
I also see no reason for ‘setting standards of evidence’ to be part of a single legal code. A court would have to find the optimum standard of evidence in order to compete. Furthermore, there would be multiple competing court regulators and accreditors monitoring the processes used by the courts, just like food regulators monitor food producers. All that’s left in Rothbard’s single legal code is the requirement that laws be libertarian.
Friedman’s conception allows unlibertarian laws, but claims they will be unlikely (which I agree with). Where I get confused with the Friedmanite mechanism with regards to the laws themselves, is when he discusses heroin laws:
His last sentence in the quoted section above seems to contradict his first. His prediction heroin would be “legal in New York” is implying the decision was made by New Yorkers on an all-or-nothing basis. In fact, since the laws are catered to individuals, one New Yorker could live under a set of laws where heroin is legal, and his next-door neighbour under laws where it is illegal. It doesn’t make sense to talk of laws applying in certain geographical areas. All areas, other than property boundaries, are arbitrary. Each owner would set rules for what is permissible on his property, but these would not be laws because laws only apply to individuals, not areas. “No Heroin Allowed Here” would be a rule like “No Shouting Fire In The Theatre”, not a law.
A parallel would be if A robs B while they are both on the property of C. Assuming no incidental damage is done to the property of C, C is not involved in this crime. However, if C had an explicit rule that stated “No Robbery Here”, then A would be subject to claims from both B (robbery) and C (robbery while on his property when it was expressly forbidden) - one law broken, one rule broken. In the case of heroin, B effectively doesn’t exist (“victimless crime”), so all the heroin user A has to worry about is whether C has a rule forbidding heroin on his land. Victimless crimes use can never be “illegal” in this sense; they can only ever be “against the rules”.
So there are laws, applying to individuals. And there are rules, applying to land areas, defined by property boundaries. Unlibertarian laws are literally impossible. Unlibertarian rules are possible, but since rules are set by the landowner, it can never make sense to say heroin is “legal in New York”, unless every single New York landowner allowed it on their land. If a single New Yorker does not allow heroin on his premises, heroin is not “legal in New York”.
I’ve not read anywhere about such a distinction between laws (“No doing X to me”) and rules (“No doing X on my land”), but I think its an important one. Anyone got any thoughts on this?
I’ve been pondering this subject some more and I think I may have had a breakthrough.
Consider adultery. Not a libertarian crime because in libertarianism, all individuals always have full rights to use their body. If a marriage contract were signed forbidding adultery, this would be considered an unenforceable contract by libertarian law, and therefore void. But a non-libertarian law system could consider the marriage contract to be enforceable. Essentially, if Alice and Bob sign such a marriage contract, they are giving up their right to use their bodies for adultery. They are exchanging their rights with each other. So if Alice both a) signs a marriage contract forbidding adultery and b) subscribes to a PDA that enforces marriage contracts, it would in fact be illegal for her to commit adultery. If she then commits adultery, Bob is a victim, and is entitled to compensation.
Now apply this line of reasoning to the heroin case. If an individual, Charlie, both a) signs a contract with someone saying he won’t use heroin, and b) subscribes to a PDA that enforces heroin contracts, then heroin would be illegal for Charlie.
So I think I was wrong to say that “[Because there is no victim] unlibertarian laws are literally impossible [except as land rules]”. What I was missing is that there is a victim, and it is whoever was the other party to the no-heroin-use contract. This party could be anyone: like a family-member, a friend, an employer, a health insurer, or even a PDA. This party would then own the right of Charlie to use heroin, so if Charlie used heroin, this party would be the victim and be entitled to compensation. This is exactly the same as Bob owning the right of Alice to sleep with other men.
Agreeing not to have sex with anybody but a certain person is no different than agreeing not to skip work for no good reason. In either case, the other party has a right to forgive an infringement or punish it as specified in the contract.