Dispute Resolution System in a Libertarian Society

Economics Political Theory
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Lyle:

I am coming into this late but you’re question suggests that Libertarians believe that there should be no government at all. This is surely not the case. A court system, or system used to settle disputes between individuals is one of the functions of government in which Libertarians believe.

Anything by Milton Friedman would be good. His TV series and book “Free to Choose” touches on this as well as his book “Capitalism and Freedom.” I know these will only speak to it generally but it could be a good start.

But I hope you are not under the impression that Libertarians think the court system is not a necessary part of the government. I hope you are not thinking that Libertarian means Anarchist.

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Why should the court system be monopolized?

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JH2011, I do not hold the belief that Libertarians that even in a libertarian society there would be no government or no court system. There is debate among libertarians about what these terms mean, however. As I understand libertarianism, for some libertarians, government is an organization with only voluntary participants. This organization could be a security firm, PDA, a tribe, family, etc. It does not mater so much what you call it. The essential characteristic of this form of government is that if you do not like it, you can refuse to join in the first place or leave it after having participated in it. For other libertarians, government is an organization that can compel participation. It is usually defined by some arbitrarily determined physical boundaries. Any one within those boundaries is required by threat of force to submit to this organization’s rules, including financing the organization. This latter type of government is often, in libertarian discussions, called a state. A court system is essentially a dispute resolution forum. But, “court” for some suggests that the system is provided by the state. In my original post, I was trying to be clear and avoid a dispute over the meaning of the terms of government and court system. I am trying to understand how a dispute resolution system might work in a state-less society (by which I do not mean a society without government, but rather a society with a government without compulsory means of participation).

Some libertarians are most definitely anarchists. For these libertarians, however, anarchy does not mean government-less or lawless. For them, it means a society ordered by a voluntary government, by free market principles, or by a set of rules (laws) that are voluntarily chosen, but I repeat myself.

JH2011, I do not know if you are a frequent reader of this forum, but from my readings, a blanket statement that libertarian does not mean anarchist will be met with fierce resistance. At the heart of nearly every debate in this forum is whether a libertarian must be an anarchist, anarcho-capitalist, panarchist, or whether a libertarian can be a minarchist, i.e, accept a minimal state government. My experience is that, unlike other forums that debate politics, economics, law, history, etc., these debates are highly intelligent, and devoid of emotionalism and ad hominem attacks. Precision in terminology is a hallmark. While experienced contributors are patient with new comers, they will not let broad statements like this one go. So, be prepared to defend or clarify what you have said.

Thanks again for all who have contributed. This continues to be helpful.

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I have no strong feelings about the word “libertarian” per se, I can accept that it has different meanings to different people. However, I do assert that anarchism is the only logical outcome of the requirement that a social order be morally coherent, that is, that all individuals without exception or distinction based on identity or occupation be held to exactly the same moral rules as everybody else. When a government policeman hits someone over the head for no other reason than that he was angry with that person, he has committed assault, no different than if he were not in the employ of the government and wearing a government-issued costume. If the government taxman pulls money out of your pocket against your will, he has committed theft, no different than if he were not in the employ of the government and wearing a government-issued costume.

The lifeblood of the government is tax revenues. Minarchism requires that you say that a certain amount of dual-morality is alright. But how much? Who gets to decide how much immoral behavior is the right amount and which goods are great enough to justify tolerating a little evil? I believe there is a Camel’s Nose in the Tent problem. Once it is agreed that even one iota of evil is justifiable for the pursuit of “greater good”, then you are stuck on a slippery slope to the modern superstate.

This is all purely abstract, however. Consider the following scenario. I am pursuing a terrorist who has the remote detonator to a nuclear bomb. As I am pursuing the terrorist in my fast car, I see a chance to head off the terrorist’s van but, in order to do it, I have to run over your child. In the interests of the greater good, I choose to run over your child, heading off the terrorist, arresting him and ending the bomb threat, saving the city and becoming a national hero. But then you sue me for your child’s homicide. Is the fact that I was trying to head off the terrorist’s van a valid defense for committing homicide? I think the answer is pretty clearly no, however strong the urge to say otherwise might be. Even if it was granted that it is justifiable to kill one person to save an entire city, you could point out that perhaps I could have stopped the terrorist some other way. Perhaps I could have headed him off further down the road. Just because I stopped the terrorist has nothing to do with the fact that I chose to kill your child. Perhaps the bomb would have been a dud or perhaps the bomb defusers would have succeeded in defusing it before the terrorist clicked the detonator. I think that the greater good argument is a weak and cowardly justification for doing things that are obviously wrong and the State is the #1 purveyor of the greater good argument in justifying its actions.

Clayton -

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Clayton, your reply skipped over an important part of what I said.

Do you agree with the bolded sentence?

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To sell laws is really just to sell arbitration services.

Pure speculation on my part. Analytically we can suppose that they are all seperate industries, along with all the industries usually meant by the general terms law and security. Like detection, investigation, apprehension, detention, law enforcement, prisons, etc. For some purposes it can be useful to think of these services being offered by competing firms, “detection agencies”, “investigation agencies”, etc.

But when I am speculating about how a free market in law and security might look, it can be convenient to lump all of these into one organization, which I call a PDA. In the real world, entrepreneurs structure markets in a way that makes life as convenient as possible for the consumer. Consider the following scenario.

You arrive home to find your house burgled. What are you going to do? You need security, a detective, an investigator, a negotiator, an apprehender, a lawyer, you need to choose a court which is mutually acceptable, and if you win you’re going to need to hire law enforcement to make sure you get your compensation. That’s a whole lot of hassle, and will require some research on your part (in this time of great emotional stress!).

It doesn’t sound realistic to me that it would go down like that. I think an entrepreneur will emerge selling a “one-stop shop” service. “If you are robbed, we will ensure you receive your compensation in 28 days, guaranteed, and hassle free!!!” This firm will take care of everything for you after you are the victim of a crime, bearing all the responsibility and risk for you, for a small monthly fee. This firm is an arbitrator, security and insurance firm all in one: a PDA.

Maybe the industries will be structured in PDA’s; maybe not. I don’t know, and it doesn’t particularly matter to me except that I use the PDA model to understand and to illustrate to others that anarchy is feasible. Its how things might work with respect to law/security in a practical world without a state.

By definition of what a law is, really. The result of an arbitrated dispute. All arbitrators - even ad hoc ones - could be said to be making a law. If arbitrator A says that B was in the right and C was in the wrong, it means that what C did was unlawful (according to A’s laws, or political ethical principles) and C must pay compensation to B. Does it have to be written down to count as “a law”? Does A have to have any special status - like a qualification or endorsement or being part of some firm - for his arbitration decision to count as a law? Maybe we could put some restrictions on what we mean, for clarity, but its all just semantics. Some people use the terms “formal law” and “informal law”.

If by private property you mean libertarian property rights, then yes, I agree. I use apple-stealing as an emotionless and straightforward issue to demonstrate a disagreement over legal principles between two courts. I am trying to explain and understand the mechanism through which individuals’ demand for laws translates into a legal system that supplies those laws. In a free market in courts, I expect apple-stealing will be considered a crime by all reasonable courts. But what about “heroin-stealing”, “handgun-stealing”, nuclear weapons, IP, abortion, euthanasia, child abuse, the death penalty, corporal punishment, etc? The hot-button issues, some of which even divide libertarians.

We can’t wave a magic wand and have everyone suddenly agree on the one true libertarian way, so we must look at competition between laws, and most generally competition between different legal principles. Will libertarian(-ish) laws be produced by a free market in law (anarchy)?

Well, why would law be different from any other industry? Of course the laws that are produced in a free market in law will be determined by consumer demand for laws! David Friedman’s bargaining process is the only analysis I have seen of the mechanism of how this could actually happen - it’s really just applying general economic principles to the law industry, viewing laws as an economic good like any other. But it is a great insight.

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"The lifeblood of the government is tax revenues. Minarchism requires that you say that a certain amount of dual-morality is alright. But how much? Who gets to decide how much immoral behavior is the right amount and which goods are great enough to justify tolerating a little evil? I believe there is a Camel’s Nose in the Tent problem. Once it is agreed that even one iota of evil is justifiable for the pursuit of “greater good”, then you are stuck on a slippery slope to the modern superstate.

This is all purely abstract, however. Consider the following scenario. I am pursuing a terrorist who has the remote detonator to a nuclear bomb. As I am pursuing the terrorist in my fast car, I see a chance to head off the terrorist’s van but, in order to do it, I have to run over your child."

I pray you are not trying to equivocate the moral weight of taxation with the moral weight of running over a baby because, if you are, that is absurd. Even assuming that taxation is immoral (for the record I do not think so) then it is not the same as running over a baby. This, I hope, is self-evident, but if it is not then I would argue that taking someone’s property is simply less heinous than snuffing out this life, at least in the latter case they still have a life. Ergo, towards the end of clear debate, would it not be better to replace the example of running over a baby with stealing somebody’s property in order to defuse the bomb in order try to have a more even analogy, yes?

Without a doubt, the entire task of trying to figure out what a system for resolving disputes would look like in a hypothetical libertarian society is silly. In fact, it is beyond silly because it falls victim to what Hayek referred to as the fatal conceit: the belief that human society can be shaped according to our wishes. However, that is a pipedream, and along with it this issue of what x would look like in any hypothetical society. It is simply a task far too complicated for the human mind to undertake if it is even possible at all due to the open (i.e. non-deterministic) nature of social evolution.

The question that should really be asked is: what piecemeal reforms can be done in order to make current systems of dispute-resolution more libertarian. Sadly, this is a question I think all anarcho-capitalists simply do not bother to answer, preferring instead to imagine how wonderful their utopia would be without bothering to take into consideration that society is based upon rules that need to be changed in a Burkean manner lest those rules are destroyed without anything to replace them.

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It’s hard to take an enthusiastic tax welfare advocate (and recepient?) seriously on matters of free markets and libertarian dispute resolution.

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1.) Change the liability limits on corporations by X% each year for Y years until corporations are liable for all damages they cause to other individuals/households/firms (or if “bad things happen” reverse the process).

2.) Shift legal wrongs currently in criminal law to tort law X at a time over Y years. Proceed until all have been shifted (or if “bad things happen” reverse the process).

3.) Relax laws making self-defense legally risky X at a time over Y years until it isn’t against the law to uphold justice (or if “bad things happen” reverse the process).

Feel free to choose the most “pragmatic” values for X and Y as you’d like. I could do this all day.

Edited on Dec 14 2010 9:11 PM for clarity.

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“It’s hard to take an enthusiastic tax welfare advocate (and recepient?) seriously on matters of free markets and libertarian dispute resolution.”

Well, its a good thing that the only thing you should have to need worry about are the premises of my arguments. As far as the attacks, its not like we don’t already know you’re an ideological hack. :wink: Joking aside, its good to see you haven’t changed much, and you need not worry, my statist opinions will not be hovering around here long and I’ll soon once again be a mere ghost of the past till I come back for a couple posts some other time.

“Would slowly changing the liability limits on corporations each year so that after X years time corporations were liable for all damages they caused to other individuals/households/firms be piecemeal enough? What about shifting legal wrongs from criminal law to tort law over long enough a time period for common law to develop analogous dispute resolution procedures currently created through legislation? What about relaxing (over time) laws making self-defense legally risky?”

While I admit that the entire concept of “piecemeal reform” is nebulous to say the least, the point of piecemeal reform is to change the rules of society slowly, to give individuals time to adapt their plans and conduct in order to adapt to them, and to not change the rules too drastically that there is excessive uncertainty about how society will be changed by them.

As far as the first request, that would be something I would vote for, and it is something that corporations can easilly change their conduct and plans in order to suit.

The second you would have to elucidate further before I would decided to vote for it. What worries me about that is the feasability of treating certain crimes as purely between individuals, and not as occuring within a community. For instance, if Sally kills Jack, I do not believe that it would be just simply to have a case for damages simply between Jack’s family and Sally, rather I think it is a concern of the greater community to ensure that justice is dealt in such a fashion so that Sally is not a threat to anyone else in that community and there is a less liklihood that people will decide to murder others.

As far as making self-defense less risky, the conditions that make self-defense more risky must be known before any reform can be made.

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Coercion isn’t a premise for an argument.

I may be an ideological hack, but I didn’t steal from anyone to get there. It’s respectable men, who have blood and sinew under their heels, that lay people need to be concerned about.

It is our great honor and pleasure to have you. What a marvelous way for people to learn what a Christian wrapped in the veneer of respectable and institutional violence looks like!

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Oh what arrogance

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I don’t see it that way. Then again, it depends on the definition of “law” being used, doesn’t it?

My own definition of “law” is such that there wouldn’t be separate laws against stealing apples, horses, computers, etc. As those would all fall under the institution of “private property”, there’d be no need for specific laws that apply to each of them separately.

On the other hand, as per-capita productivity increases, division of labor increases. You also seem to be invoking a false dilemma between the victim having to do everything himself and there being a “one-stop shop” for him. I think there’s a lot of room for variation between those two extremes – indeed, I see no reason to believe otherwise.

Again, I think we’re employing different semantics for the term “law”. That’s not to suggest that my semantics are somehow “better” than yours, or that mine are “correct” and yours aren’t (or vice-versa). They’re simply different. I personally think that using your semantics for “law” results in the average person being confused and coming up with objections like “What’s to prevent Acme PDA from advertising laws that say it’s okay to steal from other people?” On the other hand, if a “higher” (i.e. “natural”) law is appealed to, as is my tactic, people seem to have an easier time understanding things.

In other words, my objection here isn’t logical, it’s “rhetorical”. :stuck_out_tongue:

If there’s an overall “natural” law, at least generally speaking, then what people desire is order – that is, conformance with the natural law. So they will (tend to) demand dispute resolutions that seem to be in such conformance, all other things being equal.

Why do you put “heroin-stealing” and “handgun-stealing” in quotes?

I thought the premise of this thread was that a libertarian society already exists. That is, the vast majority of people in the society are assumed to lack a statist mentality.

Again, while I think I understand your semantics, I think the notion of “producing law(s)” would strike most people today as rather alien, in spite of the fact that most people today are ruled by legislatures that follow legal positivism. I think the “natural-law” approach will make more sense to them. Maybe I’m wrong, though.

On the other hand, it doesn’t seem to take into account the apparent fact that nearly everyone is born with the same set of general moral instincts, which form the basis of what I’d call “natural law”. Instead, Friedman’s approach seems to take Thomas Hobbes’ theory of human nature to be true.

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Whether you consider taxation to be immoral is partly a question of how you define “taxation”, isn’t it?

How is speculating about how things could or would work in a hypothetical libertarian society the same thing as pontificating about how things should work there? It seems your criticism falls flat, as no one here seems to be trying to shape human society according to his wishes. Instead, we’re trying to figure out what kind of (libertarian) society people would shape by and for themselves.

The question of how to get from contemporary society to a libertarian society seems to be completely outside the scope of this thread, as delineated by its OP. Are you deliberately trying to derail things here?

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How so?

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If followed to its logical conclusion, libertarian philosophy leads unequivocally and quite persuasively to an anarchist society. I accept this. But, having arrived at this point, I do not find that I am at an end point, but at a place of beginning. The question remains: how does an individual deal with the exercise of power in his interactions with other individuals? By power, I mean the use of means to injure an individual or to take or injure his property without consent.

As I understand the non-aggression principle, the use of power to injure another or another’s property is unlawful. On this point, there seems to be universal agreement among libertarians. But, now enters a fissure among libertarians. Pacifist libertarians argue that the exercise of power is always unlawful. Their answer to the question of how to deal with the exercise of power seems to be to reject entirely the use of power as legitimate in any circumstances. I am not persuaded.

Other libertarians argue that it is only the initial or aggressive use of power that is unlawful. The use of power to repel the aggressive use of power is lawful. In other words, the use of power to defend yourself or your property is lawful. I accept this.

Application of the principles of non-aggression and self-defense is easy in some instances. If I am attacked by a man wielding a club, I am entitled to pull out my club and defend myself. Pacifists aside, no libertarian would deny me this right.

But, if after I pull my club out my assailant withdraws, am I still entitled to strike him? If my assailant withdraws, am I entitled to pursue him? Am I entitled to kill my assailant? If I use too much force against my assailant, is my assailant now entitled to use his club to defend himself? Since my assailant struck me and I am injured, can I use my club to force my assailant to work for me or to take property from my assailant as compensation? If my assailant knocked me out with his first blow and took some of my property, am I entitled to use my club to retrieve my property? How much of my assailant’s property am I entitled to retrieve as compensation? If I take too much of my assailant’s property as compensation, is my assailant entitled to use his club to take back some of his property?

The answers to these questions are not that important to me right now. I see two ways to answer these questions. One way is for my assailant and me to engage in a series of violent confrontations until one or both of us are dead or until we are each satisfied that injuries have been justly compensated. Or, we can develop a method of resolving our disputes peacefully. This is where law and legal systems begin to develop.

At its essence the law, properly understood, is trying to define what power is, when someone has initiated the use of power, i.e., aggressed against another, when someone is entitled to use self-defense, and what limits, if any, there are on the use of power in self-defense. A legal system at its essence is trying to provide a method for civil (non-violent) resolution of disputes so that we are not hopelessly mired in a series of violent clashes. The law will be followed and the legal system used only so long as it is a better alternative than engaging in a series of violent clashes. Because most individuals prefer to avoid violence, individuals want law and a legal system to enforce that law. So, the quest becomes how to develop law and a legal system that is better than the alternative of violent clashes.

This is where minarchists and panarchist depart. The minarchists’ answer to the question of how to control power and develop law and a legal system that is better than a series of violent clashes is to empower someone to rule over everyone within a defined area. Everyone, within that area, whether they want to or not, is subject to that person’s definitions of law and resolutions of disputes. Not only are they subject to that person, but they must also pay that person. Anyone who disobeys is met with violence and has their property, liberty or life taken. This ruler is limited to only using the law and the legal system to protect individuals and their property from injury. Their concept is a state with limited power.

Panarchists argue that the very act of compelling obedience to and support of this ruler violates a person’s liberty rights. Panarchists can also show that history is replete with examples of failed attempts to limit the power of the state. The state, like night follows day, becomes the very thing that its subjects sought protection from. It becomes the violent assailant—the aggressor who takes property and injures people.

It is not enough, however, for the panarchists to demonstrate the flaws of the minarchists’ approach to providing law and a legal system. Panarchists need to provide some basis for how law and a legal system will be better in an anarchist society than in a minarchist society. Panarchists do not need to demonstrate that the system will be perfect. Nor is it necessary to answer the minutia of every conceivable hypothetical. The plain fact of the matter is we do not know exactly how law and a legal system will exist in a panarchist society. If such societies ever existed, they are not prevalent in our current historical record. So, we do not currently have very many historical examples that we can point to. But, we do need to provide some general ideas on how it might work, if we are to persuade others to move towards such a society even in incremental steps.

Again, I am trying to understand these general ideas, so that I can be a better advocate of panarchism. One of the benefits of the current law and legal system, at least in the United States, is that there is a strong likelihood that an injured party will be compensated. It is not perfect. Some injuries are not redressed. Sometimes the compensation is insufficient or too much.

This likelihood exists because the courts can compel a person to participate in a dispute resolution process and subject a person to its judgments. In other words, the courts can take their club and compel my assailant to sit before a judge. They can determine the amount of compensation I am entitled to and compel my assailant to pay it.

The current US legal system uses summons, subpoenas, judgments, and execution of judgments to create the strong likelihood that an injured party will be compensated. All of these tools rest on the state’s use of power to compel compliance.

Without the state’s power to compel compliance, how are the law and a legal system in a panarchist society going to create a strong likelihood that an injured party will be compensated?

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The point is that people disagree all the time over what constitutes aggression. Even those of us who firmly support libertarian property rights (what you call “private property”) disagree with each other all the time. Witness the hot-button issues. So even in a libertarian society, there will be disputes about what constitutes aggression (in other words, how property rights are assigned by arbitrators). Not to mention the jurisprudential disagreements (like how much noise I can make without it becoming aggression against my neighbours, what exactly counts as homesteading, what punishments are appropriate, etc). We can’t be as vague as to just say ‘the law will be private property’. We have to look at how disagreements between individuals/courts about principles (as well as just particular circumstances) might play out.

OK. It will lie somewhere on the “lots of hassle” / “one-stop shop” scale anyway.

OK then. In terms of rhetoric, I’d comment that your approach, a “one true law” approach, may be inappropriate for the kind of decentralized system of law-making that is libertarian anarchy. It is difficult for most people (even libertarians!) to apply economic principles (supply, demand, production, etc) to the law industry… but that’s just the problem. Get people to start thinking in those terms and we will win. “Natural law” is just confusing to most people; it reminds them (and me) of theistic law, law being “passed down” to us from somewhere “higher”. It may persuade some people, but many will later see flaws in the concept of “natural law” and abandon libertarianism, falsely believing libertarianism rests on natural law theory.

To have not put them in quotes might have opened me up to the charge of question-begging. Earlier, I considered a court that would “not recognize apple-stealing as a crime”, but that only makes any logical sense if we are using the term stealing in a libertarian sense. A non-libertarian court would have a different definition of stealing, so if we take a value-free definition of stealing (an invasion of a legitimate property boundary), then stealing is a crime by definition. To go back to my earlier example, the court that supported the “apple-taker” would simply he has a legitimate property boundary in the apple, so it would actually be stealing for the homesteader to prevent anyone taking the apple, or trying to get compensation for it. The non-libertarian court would simply say the apple-taker owned the apple all along. I hope that makes sense. Law is all about assigning property rights to one party or the other in a dispute, based on some principle for assigning property rights.

We agreed that the apple example is unrealistic. Most reasonable courts would recognize the apple as belonging to the homesteader, so they would (justly, in our libertarian view) call the actions of the apple-taker “stealing”. It would be silly for a court to have a property assignment principle like “All apples, always and everywhere, belong to Adam”. Most people wouldn’t put up with a court that made decisions on a silly principle like that.

But now consider heroin. We live under a law that says “all heroin, always and everywhere, belongs to the State,” and yet most people support this law - many of them feel very strongly about it! How sure are we that in the absence of a State, these people would not voluntarily choose a court that declared heroin illegal, and pay for law enforcement? If the majority of people feel really strongly that its OK for some group to control all the heroin (“to keep people safe from the horrors of heroin addiction”), then heroin will be declared illegal at least by some courts (always eager to satisfy consumer desires). Do you see what I mean? (If you have problems with this example, substitute for heroin any of the other hot-button issues).

Not at all. Friedman is quite optimistic that the laws produced in an anarchic legal system will be largely libertarian. As am I.

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Friedman’s approach seems to leave out innate morality. If there’s no innate morality to (nearly all) people, then the “state of nature” would be as Thomas Hobbes described it: a war of all against all, where life is “nasty, brutish, and short”.

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With all due respect, isn’t this essentially the same question as the one you asked in the OP? Have none of the many responses been satisfying to you? If not, why not?

Also, is it not true that, in US criminal cases, the victims are usually not compensated when the accused are found guilty? Sending the accused to prison or forcing him to pay fines to the state are hardly compensation, as far as I can tell.

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Trust me, I understand your point completely. We simply have different semantics when it comes to the word “law”. I’m not trying to dismiss the idea that there may be disputes over legal principles. Sorry if you took it that way.

Think of it this way. Many different kinds of substances exist in the universe, but they all follow the same laws of physics. Likewise, there are many different human beings on Earth, but nearly all of them are born with the same moral instincts. The analogy isn’t perfect, since moral instincts are far looser than the laws of physics, but hopefully you get the idea. It’s more about “common” than “centralized”.

Frank van Dun has another good analogy in some of his writings. He likens the idea of “natural law” or “natural order” to the depths of an ocean, with various human cultures and societies as waves on the surface.

In my own experience, people have been more confused by the idea of “competing legal systems” or “markets for laws” than when I appealed to an underlying human nature. They come up with objections such as “If some people want to steal, what’s to stop a PDA from marketing laws that allow them to steal?” But that’s just me – YMMV.

With all of that said, and with all due respect, I think the idea of a “one true law” is a straw man standing in for my actual position. I don’t think that any legal framework can either be 1) objectively correct/known, or 2) perfectly/completely refined. Does that make sense? If that’s not what you meant by “one true law”, let me know.

Of course, that assumes the concept of private property is taken as legitimate to begin with. Obviously law can be made which does not do that. Again, it depends on the semantics one uses for “law”. :stuck_out_tongue:

Regardless, I get your point. Thanks for the clarification.

This is where I think the problems begin. What you’re describing sounds like people paying for enforcement of a prohibition against heroin, but not only among themselves. Instead, they’re paying for said enforcement against everyone, whether they agree or not. That sounds like a state to me, and so we’re right back to where we started.

See my response to Solid_Choke. Otherwise, where do you think the “laws” produced may not be libertarian?