Apply this logic to the government itself. Then rethink things.
cr113: “This is why even with all it’s faults we still need minimal government. You can have all the private security firms you want but that doesn’t resolve the dispute. The loser of a serious dispute is never going to submit to punishment if he has superior firepower.”
gocrew: “Apply this logic to the government itself. Then rethink things.”
Government will almost always have the superior firepower over private citizens. Therefore government will almost always be able to force the resolution of a dispute on a private citizen.
Without government the winner of a serious dispute is generally going to be the stronger party, not the party who is in the right.
How would you handle national defense?
I’d avoid the use of the term “always”. Things didn’t work out for poor Louis the 16th, did they?
And what does “almost always” mean? I suppose it ranges from never right up to always.
K.C. Farmer: “I’d avoid the use of the term “always”. Things didn’t work out for poor Louis the 16th, did they? And what does “almost always” mean? I suppose it ranges from never right up to always.”
If that’s your counter argument I claim victory!
Your citizen with superior firepower, and the government you claim is necessary, does not win on force alone. It takes the other side to submit. In fact, the existence of the tyrrant depends upon those he subjects to his tyranny. [The Politics of Obedience by Etienne de la Boetie]
If you’re talking about a sociopath, a person who would believe he doesn’t require other people to exist, then killing everyone will take him only so far until the rest of society gangs up on him or he dies of disease or starvation. [I, Pencil by Leonard E Read]
A reasonable person with superior firepower would quickly realize that his weapons only get him so far in dealing with other people. If he’s unwilling to participate in a dispute resolution and accept the results, then he’s accepted the role of outlaw. [Outlaw wikipedia; The Solution by Schaeffer Cox]
Your argument seems to suggest that government is required for there to be law. This is simply not the case. It’s a common error for most unfamiliar with the Anarcho-Capitalist position to make this assumption.
The dispute resolution that an Anarcho-Capitalist society would have would be the voluntary one most likely utilizing common law similar to what’s described in Cox’s presentation. Everyone in this society would have the choice to either live with the protection of the law or without it. I think the entire concept of outlawry has been lost for the modern person who accepts the death penalty as the harshest punishment.
The OP asked a question on contract law, which is covered under common law. Opting out of the decision means that individual has chosen to be an outlaw rather than accept the judgement. The society doesn’t force him to do something he has not already agreed to do. Enforcement is a non-issue. An offender in such a position wouldn’t be caught dead in Walmart or any other public place. He’d most likely flee to another place in hopes of finding a place that will accept him. He has essentially punished himself for being unreasonable and failing to live up to what he said he’d do.
So, is imprisonment or the death penalty any better? What minarchist solution do you subscribe to, and how do you entend to enforce it?
I think KC Farmer has just about nailed it. cr113, you’ve not responded to anything in my post or answered KC Farmer’s post. Why don’t you take a look at these?
Clayton -
To be fair, Schaeffer Cox is arguing for a minarchist government, however the same structure of law may be applied to the Anarcho-Capitalist society. The point made was to show how the common law works within a voluntary way.
David D. Friedman on Legal Systems Very Different from Ours.
Michael Van Notten’s The Law of the Somalis.
Law, Legislation and Liberty by Hayek (someone has this available as a Torrent here).
Freedom and the Law by Bruno Leoni.
To me, the essential distinction is that between statutory law and case law or customary law. Once it is understood that statutes are never and were never necessary to the production of law, all else* follows. I’ll respond to your detailed scenarios so you can get more of an idea of my position (I’m actually studying this subject - as an amateur - so I do have some opinions on it).
Clayton -
*“all else”, for me personally, is not “liberty” per se, since everyone has a different idea what “liberty” means, which is of no use in a court of law… instead, the “all else” means that unitary law is possible! And this is great news because the system of dual law that characterizes our present legal order (and has characterized the legal orders of “civilized” societies for the last half-dozen millenia) is, by definition, tyrannical and oppressive.
There is a good part on DROs here:
http://freedomainradio.com/board/blogs/freedomain/archive/2008/11/14/practical-anarchy-the-book.aspx
I agree with everything except your assumption that the non-prevailing party will bear all of the dispute costs. It may be the case that a “lawsuit insurance” industry might emerge and lawsuit insurers would handle the costs. This is not a very important point except that I like to emphasize the importance of the market in deciding what is the most efficient way to produce goods and services.
We can at least say that if everybody had to pay for their own damned attorney, they’d think twice before suing. The government’s courts subsidize certain classes of suits and there’s no opt-out since the government’s courts are the only courts.
Law originated in the peaceful settlement of disputes using verbal argument that would otherwise have been settled through martial contest. If a person refuses to settle a dispute lawfully, then they are implicitly opting for martial contest, in other words, “no holds barred” war. You might believe that the whole society would burn itself down in a gigantic Hatfield-McCoy feud but I think the very existence of law testifies to the falsity of this belief (human ancestors did not have the ability to speak, so they did not have law, yet somehow, they managed to survive and eventually produce us).
Of course, I do not think that “no holds barred” would really be “no holds barred”, i.e. the store owner beheading a child who stole a pack of gum and cannot repay it. Instead, I think a body of case law would emerge to regulate what sorts of retaliatory actions are legally justifiable in response to those who refuse legal means to resolve their disputes. For example, if you burned my house down and refuse to pay for the damages, perhaps I am justified to burn down your barn or your unoccupied rental home (but not your place of dwelling), or (forcibly) seize up to 3 of your vehicles, etc. If you come back later and sue my for my retaliatory actions, as long as I stayed within the legal precedent for such things, you won’t have a leg to stand on. You get the idea.
Watch the Friedman video. The Pashtun law of the Afghans and the Xeer law of the Somalis are pretty damn close to stateless legal systems and they exist today. Medieval Iceland is frequently cited by ACs, as well as many tribal law systems. As David Friedman says about the performance bond, we (the West) are about 1,000 years behind the state of the art in legal theory since our courts largely do not recognize performance bonds.
Yeah, but it always depended on who the liable party was… if you were a commoner trying to sue a noble, forget about it. As always, the state introduces two-tiered law… dual law.
I am working on a paper on this subject. Perhaps we could communicate via email and share thoughts. I’m no lawyer but a lot of the subject matter does not actually require legal expertise since it’s more of a social problem, a meta-legal problem, than an actual legal problem.
Clayton -
And when the government is in the wrong? Who shall resolve the dispute and force the resolution on the government?
Anarchy and the Law is a fantastic anthology of writings on the subject. Many of the essays it contains can be found online. I’d start with Rothbard and Friedman.
Bruce Benson’s The Enterprise of Law is also excellent.
It seems that the state paradigm/problem is merely one of size and realm. With development of technology and trade, the realm of human interaction expanded beyond the village, tribe, and valley of one’s birth. States may have evolved as optimal, realm-expanding descendants of tribes (and other small close-knit communities with uniform traditions). They maintained and expanded the order/incentive-generating (transaction cost-minimizing) limitations of individual agents’ actions necessary for production and exchange to flourish beyond the tribal realm.
Regardless of size or era, a productive majority implements coercion-based incentive schemes over a destructive minority in order for society to flourish – tradition and ostracism in tribes, laws and enforcement of property rights in states.
Just some (not fully developed) thoughts…
Z.
While it may ultimately come down to their “ability to fight”, I think there is much more to say here. If we assume the two PDAs are both large and have powerful weapons, they are obviously not going to have a war over a simple dispute like a petty theft. Which PDA has greater ability to fight is irrelevant in this case; war is not on the table, and that is fully understood by both sides. This conflict will be resolved by one PDA paying off the other. In this case, what is comes down to is “ability to pay”, or who has the greatest bargaining power in negotiations.
I think this is incorrect. I think you’ve reached this incorrect conclusion by focussing solely on “ability to fight” rather than “ability to pay” as well. Also, you appear to not consider that negotiations could (and probably will) happen between PDAs prior to any specific conflict. If I may quote David Friedman:
I think this is an extremely important idea.
Taking a step back for a moment, we know that what gets produced in any free market is ultimately determined by public opinion. The relative amount of capital, land and labor devoted to the production of one type of food relative to another type of food is dependent on relatively how much each type of food is demanded, for example. So we can expect the same thing with regard to what laws will be produced in anarchy.
The kinds of laws that get produced will be the kinds of laws that people demand. Public opinion will be reflected in the laws that are produced. The barganing process described by Friedman is the mechanism through which this will take place. This is how individuals’ opinions on ethics and justice are translated into laws in anarchy.
I don’t see how that follows at all. But anyway it contradicts what you said earlier about restitution / retribution being enforced.
Trulib, how are you defining “laws”? How do you believe such “laws” would be “produced” in a stateless society?
You can quote David Friedman, if you must, but I’d prefer you use your own words. Thanks.
I wonder why no has recommended Bob Murphy’s Chaos Theory. It’s a concise, excellent book. It deals with the notion of private law and private defense.
Laws are produced by arbitrators through the resolving of conflicts. People demand laws because they want some assurance that if they are ever involved in a conflict, they will be able to resolve it peacefully. They also demand security and insurance. I believe firms - referred to as PDAs - will offer combined packages of law, security and insurance. These firms will compete with each other over many things, but one of them will be the particular content of the laws they produce. That is, the way they will decide to resolve any given conflict; what they consider a “crime”.
We can examine conflicts in two categories: 1) conflicts over the particular events, or 2) conflicts over the general principles.
The first case has been adequately dealt with by Rothbard and others. Suppose Ben accuses Adam of stealing his apple. Adam and Ben belong to different PDAs. The first thing the PDAs will need to agree on is the general principle: who was the legitimate owner of the apple and does the accusation constitute aggression (was it a violation of a legitimate property boundary)? We can suppose both PDAs agree that Ben, the accuser, was the legitimate owner, and that, if Ben’s accusations are true, it would indeed be a crime, punishable by paying say 5 apples in compensation. The only debate then is: did Adam actually steal the apple? Both PDA’s will investigate the circumstances and if they disagree as to the particular events, they will turn to a third court, which also recognizes apple-stealing as a crime and that 5 apples is suitable compensation, and they agree to abide by its judgment of the particulars. Simple.
The more interesting case is when the PDAs conflict over the general principles that guide their resolutions of conflicts, i.e. the content of the laws they produce. This was not examined by Rothbard, but Friedman does consider it. Suppose the two PDAs agree entirely as to the particular events: Adam did take the apple, which Ben had homesteaded earlier. Except while Ben’s PDA bases its laws on the principles of homesteading and voluntary exchange (i.e. it is a libertarian court), Adam’s PDA is nonlibertarian and does not base its laws on the principle of homesteading. It uses different principles to assign property rights. Whatever these principles may be, they lead Adam’s PDA to conclude that Adam was the rightful owner of the apple, so even though there is agreement as to the particulars, Adam’s court does not consider that a crime has taken place at all.
So what are these PDAs to do? There is no point getting another court involved, because there is no disagreement as to the particulars of what took place; the only issue is which PDA’s laws will apply in this particular case. This is where bargaining power comes in. The PDAs are not going to go to war over an apple; one of them will in effect “pay off” the other one so that its laws apply in this case. But this would more efficacously be negotiated and contracted in advance of any particular conflict taking place. 2 large PDAs which operate according to different general principles (such as one being pro capital punishment and one being anti) will be prepared for these types of conflicts in advance; there will be an agreement in place so there is no need to negotiate afresh after every such case of conflict between their clients about which law set will apply. Whether Ben is entitled to compensation from Adam is determined by what agreement their PDAs had in place for cases of apple theft between their clients, and hence by the bargaining power of their respective PDAs.
Capital punishment is a divisive issue, even among libertarians. With a free market in law, whether capital punishment is ever enforced, and under what circumstances, will be determined by the bargaining power of pro-capital punishment courts / PDAs relative to the bargaining power of anti-capital punishment courts / PDAs. In turn, this will be determined by the relative profitability of the PDAs, so ultimately by consumer demand, i.e. public opinion about when, if ever, capital punishment should be enforced.
I think you’re conflating law with individual legal cases. In a customary law system (which I assert any natural order law system must be), individual arbitrated decisions have no normative force, on their own. The “weight” which previously decided cases carry, under customary law, is that those decisions worked, that is, prevented further fighting.
I don’t expect we’ll agree because I reject egoistic libertarianism which usually leads to this sort of ruggedly individualistic view of law. Law is just one attribute of human culture and it dovetails in with every other attribute of human culture. Most importantly, it dovetails with family, community and other forms of social organization which produce small-scale social order without the costs and complexities of formal law. It is my view that egoistic libertarianism is blind to social structure above the scale of the individual.
Clayton -
I don’t understand why ostracism is so hard for some to understand. It’s a perfectly simple concept for a community to adopt and employ and we have several historical examples of such behavior inside the market economy.
Go ask an ex-con or a known sex offender how easy it is for them to get a job of desired choice. If business’s were allowed to practice more discrimination I wouldn’t be surprised of ex-con’s and sex offenders given a very limited number of options as a consumer as well.
I think there is a public-choice problem with ostracism… it requires that basically everyone observe the ostracism. Clearly, it is possible for voluntary communities to develop a robust system of ostracism, the Amish are ample proof of that. But, at the largest scale, I do not think ostracism can be the “final punishment.” Shunning is an insufficient response to murder and we know this because humans are evolved to want to violently retaliate against those who commit violent crimes. Think of two animals from the same non-human species getting in a fight to the death. Do the genetic parents or other relatives of the dead animal try to retaliate against the “responsible” animal? As far as I know, deadly retaliation for violent intra-species actions is unique to humans. I think the pacifist-libertarian ideal of social organization is pollyannaism.
Clayton -