Law in "practice" in an anarcho-capitalist society

Miscellaneous Newbies
1

Hi, I have a couple of question regarding that subject. It is possible that I will make some mistakes about what the anarcho-capitalist stance on the legal system actually is. (And I quoted the word practice not because I doubt it, but because as far as I know there hasn’t been any practice so far)

So,

  1. The substantial civil law is lex contractus according to the non-agression principle. I can easily imagine that when buying/selling, renting, long story short the obligations are made for the NAP. No one enters an obligation without wanting it.

But how about rights in rem? Philosophically, the AC answer is the self-ownership, correct? But legally? In an AC society a person steals a thing on what grounds is his action illegal? He might reply:“Hey hey, I didn’t agree with respecting your so-called property, I am convinced that property is a theft and that the thing is just as mine as yours and now you are pushing your political opinions on me.” On what legal grounds is the right to private property applicable to all people?

  1. The substantial criminal law. There is basically none or better there is no difference between the civil and the criminal law. Every action is harmful to a certain person, never to the society as whole thus rendering the term “criminal” meaningless. Fine, crystal clear so far. In a stateless society many crimes won’t be crimes - typically vicitmless crime or treason which can actually be also considered a victimless crime depending on the definiton. But nevermind, sorry for the side-track. However some crimes as they are today are directed against an individual person. Evergreens like murders, theft or fraud. But those are already treated by the civil law. If you murder a person, you can be sued for damages by his relatives. So it seems to me that in a AC society, there is no such thing as a crime as we use the term today, either they are victimless and cannot be considered transgressions in an AC society or they merge with the civil law. Am i right?

  2. The procedural law.

It would be better to cover in a simple hypothetical “case study” which will include the substantial law as well.

So, there is an anarcho-capitalist society. A and B are walking the street when A pick pockets B. B notices it and because he is a staunch pacifist he refuses to use violence to recover his wallet right here and rigt now. Instead this conversation ensues:

B: “Seriously, man, what’s that supposed to mean?”

A: “Like what?”

B:“You stole my wallet”

A:“So?”

B:“Give it back to me.”

A.“No way, no how”

B:“Fine, as you like it, I will hire a private court and it will sentence you to return it.”

A:“Yeah, good luck with that 'cause I ain’t coming there.”

A few days later a private court hired by B assembles and sentences A in absentia (because in their private lawbook there is nothing wrong with sentencing people in absentia) to return the wallet (or to give to B its monetary equivalent, whatever you like more) By that time A is sitting comfortably in his home and is enjoying what he consideres spoils of war when somebody kicks off the door and grabs the wallet from his hands. It turns out that it is a private company hired by B to execute the sentence. Consequently A hires a private court and a private company. He says that the wallet is his and that A is a liar. And so it goes on and on and the wallet changes its possessor until one of the gets tired of it, runs out of money or dies.

Where did I make a mistake? Or is anarcho-capitalism comfortable with this picture?

And let’s imagine a scenarion beginng exactly the same with a slight change in B’s behaviour. He fights back and recovers his wallet in a minute. Next thing he knows he is called to a private court hired by A who sues him for damages on his health. B refuses to pay stating that it was self-defence and hires another court that agrees with that it was righteous self-defence. Mean while a company hired by A takes his TV, because he refuses to pay. A thinks it is a closed case, but B refuses to accept it and hires a court that sentences A for theft. B hires a company to recover his television. A consideres this a theft and hire a court…

2

Nothing? Nobody? Not even “jesus, read this before asking so stupid questions”?[:)]

3

The nightmare scenario would not happen in a really free market. A free market police agency wouldn’t let small disputes escalate to all-out war.

Here’s how the nightmare scenario actually works.

A State bureaucrat says that you have to give him 50% of your labor. You refuse. A bunch of armed thugs come to kidnap you. Either you resist and are shot, or you are kidnapped and spend years in jail. You have no recourse, because the State has a monopoly.

In a free market, if a business owner started acting like an idiot, they’d lose their customers.

4

1/2 are confusing to me at times. What is this?

Victimless crimes aren’t considered by us, and often real crimes are also a part of civil law. The problem is that even when the state punishes for real crimes, it isn’t focused on restitution to the victim. Moreover, it makes the victim and the rest of the state’s subjects pay to house violent criminals through taxes.

This might clear up some problems about civil law.

3 - If B really was a staunch pacifist, he wouldn’t press charges. Yes, there could be cases of defense agencies going back and forth over differences. For the most part though, I see this as a non-issue. What percent of people agree that being stabbed in the face while walking innocently down the street is a crime, 99+? In any case, A and B will more likely agree to a certain court or series of courts in a chain of arbitration. Since justice is now for profit, and profit is measured by success, and success is measured by being fair, it is more likely that courts will establish many standards between them. There would probably be non-profit and special courts for cases where the defendant refuses to any arbiters.

http://mises.org/journals/jls/11_2/11_2_5.pdf

5

Nothing wrong with questions buddy. Read Chaos Theory for free here at Mises: http://mises.org/books/chaostheory.pdf . It is very short and easy to read and will give you a good foundation for pondering these types of questions.

Then post some more and we can fill in the gaps.

6

sk: Thank you for your answer.

  1. Why wouldn it? As long as A and B pay enough to cover theor costs of this “all-out-war”? After all, it’s not really all-out-war. Those two agencies don’t physically interfere with each other. It’s not causing any excitement among people.

  2. What if one of those private companies decides to imprison A or B? And even if his relatives know who did that ( which cannot be always granted) it turs out that the company is strong enough to repeal their attacks? You sort of answered that with “they’d lose their customers.” But what if the company is strong enough to survive the loss of customers and still enforce its will? Wouldn’t that make it more or less a state? Which makes me think - isn’t the contmeporary state of things (multiplicity of more or less independent states) bascially anarcho-capitalism on a “higher” level? The customers (citizens) can move to aother state if they don’t like this one. Yes sometimes the state prevents them, but cannot that ( i.e. a company blackmails its customers in its struggle for power) be expected to happen in an anarcho-capitalist society too?

I am not necessarily pro-state. Right know I am open to ideas and anarcho-capitalism sounds interesting, but I was taught to try to find holes in an appealing idea before the holes find me[:)] That’s all.

7

To Olovetto and MatthewF:

Rights in rem…well that’s what the dictionary says. The continental law based on the Roman law distinguishes “iura in rem” and “obligationes”. Obligationes are basically contracts, they are characterised by being relaitve (that is their validity applies only to the sides of the contracts). It may sound like stating the obvious, but it is quite important to distinguish these two in more sohpisticated reasoning in continental/Roman law. Iura in rem are rights that everybody must respect, typically property right .It is often explained as an “absolute relationship” meaning that it forces all people to respect the right to property whether they personally agreed to it or not. Which is what I was asking. The contracts don’t really need any lawgiver, the legitimacy of enforcing them is covered by the fact that the defendant signed the contract. But nobody signes any contracts to respect somebody else’s property. The continetal/Roman concept solves this through the state, through the lawgiver who declares property rights contracts who encompass all people. My question was therefore what would be the legal base for protection of property in the abence of the lawgiver?

Anyway, I will read what you all suggested, thanks a lot

8

Why would A and B waste resources fighting a war? If other people started being hurt by the conflict between A and B, then their police agencies would stop A and B and whoever’s helping them.

If a private police agency has a monopoly and can abuse their power, then they’re the government.

If you’re concerned about “What happens if a rogue for-profit police agency goes around harassing people?”, there’s already a rogue private for-profit police agency. It’s called the government!

Once you have a really free market, it’ll be practically impossible for someone to form a monopoly.

Suppose someone had a strong market position and started abusing it. Other people would flock to competing police agencies.

Monopolies only occur when backed by the State. You might be worried “What happens if someone has an abusive telephone monopoly?” That occurs because the local telephone monopoly has an explicit State-backed license. It’s illegal for me to lay my own telephone cable, even if I could get permission from residents in the area.

9

fsk:

Because people don’t always act strictly rationally. Or they don’t ac what an accountant would call “rationally”. I like to think about it tthe way that hey still act in their self interest because the pride they feel when they keep on “fighting” simply brings them pleasure enough to compensate for the monetary loss.

I am a lawyer, I know it very well, neighbours sue each other for years for a worthless square meter of land, it costs them tremendous money especially when compared to their income and yet they refuse to step back.

Ad State = rogue agency harassing others. Yes, I don’t deny that, but my question is whether it won’t end up this way anyway? Won’t some company sooner or later emerge as “victorious”? Isn’t the state some sort of constant in “human equations”? A thing we might dislike as much as possible, but which will eventually emerge? ïsn’t anarchy temporary by nature? Doesn’t history suggest that it is human nature to create coercive organisations?

Again, just asking questions, not stating opinions.

10

If you are a lawyer, then you have received tremendous pro-State brainwashing.

insane State law != natural law

Suppose that two people decide that they WANT to escalate a small dispute. A State court is perfectly happy to let each of them spend hundreds of thousands of dollars in legal fees.

A free market court might say “Why are you wasting our time with this trivial issue?”

Suppose two people have a dispute over $100, and it’s not clear who’s right. Then, both private police agencies will pay their customer $100, move on to the next issue, and work on improving their procedures for next time. A rational businessman won’t wreck his business for $100.

If it’s more valued goods, then a third police agency C might be hired to arbitrate.

Suppose that A wants to harass B, but B wants to be left alone. The State legal system makes it easy for A to harass B with a lawyer. In a free market court, if A claims that B owes A $100, then B’s police agency would just pay A $100. If A insists on pursuing frivolous claims, and his police agency backs him, then his police agency will start losing customers or have other police agencies refusing to work with it.

The State is the reason that small disputes escalate, because the State has an absolutely unaccountable monopoly.

11

I may have received some kind of brainwashing, but I still think I favour liberty more than my former professors who were often (post)communists[:)] But there were some iusnaturalists, which I guess is the favoured school of legal thought among Anarcho-capitalists.

Nevertheless, to your argument. A court does indeed charge its fees accroding to the claimed value of the disputed thing. But court fees are marginal in total expenses of a litigant. 90+ percent of it is made by the barrister’s salary which is not controlled by state. In the Czech republic, if you sue somebody for §100 you will pay §4 (!), but hundreds if not thousands (!) dollars to the barrister. And yet people are willing to go to courts, because of the pride, the immortal companion of a human being. So, I (and all my colleagues) don’t care about the value of the lawsuit. We charge everyone the same. We charge X money reagrdless of the value of the thing. Are you willing to pay it? Fine, I’ll take it and I don’t care if it is a mall or a pen. I think it is safe to assume that private courts would do the same.

Why would the B’s agency give those §100 to A? They would tell B: “Well, one hour of our time is worth Y money, pay it or find somebody elese.”

12

[:P]

13

Because denying ownership is self-contradictory: if someone steals from you, and offers the above as defense, you can freely take back what you think is yours using his own revealed system.

the principled approach suggests that the situation above would be unwarranted. Even though someone may be tried in absentia, and found “guilty”, no man (or group of men under any color) would be rightfully permitted to invade the alleged thief’s private property. In practice, this means public ostracism and exercise of property rights to exclude the “guilty” individual.

Let’s worry about the first few questions before we bother with this reductio.

14

You guys are making this way too complicated.

All these drawn out what-if scenarios can be solved thusly:

Thunderdome.

15

Typically, private courts just added you to a blacklist if you didn’t show up for trial or didn’t cooperate. People on this blacklist would be left alone but couldn’t use private courts.

So now showing up to court basically meant that anyone could kill you without retaliation.

Its all about being an entrepreneur. Sure there are problems with some business models for things like PDAs. But there’s profit to be had at solving these problems. The free market contains many challenges but also brings with it the incentive to solve them.

16

IMPORTANT: First of all, realize that everything anyone writes here can only ever be conjecture about how a society in anarchy (i.e., in the absence of a monopoly) may organize itself. Educated conjecture, but ultimately conjecture all the same because in anarchy there is no authority to ensure that any specific vision gets implemented.

The most common (basically, the Rothbardian) vision of AnCap is one of a monopolistic/monolithic legal system where all arbitration follows certain rules as laid out in such works as The Ethics of Liberty. Under that system, the law is the law, and that set of political ideologies will be apparently be pushed on you. In my opinion, the idea of a monolithic legal system makes no sense when there is no monopoly to enforce it. It may be that Rothbard’s or Hoppe’s or someone here’s exact conception of PDAs, DROs, etc. is so brilliant and practical that it gets voluntarily adopted by so many in society that it becomes the standard, but no one can say for sure what will actually happen.

I suggest that a fully consistent anarchist position that rejects central planning and monopoly will view the anarcho-capitalist vision (or any other concrete vision in the absense of monopoly) as an educated conjecture as to how society would organize if there were no monopoly on force. As such, the AnCap answer would be that such a person would likely be forced into a system of private property law. This is backed up to a degree by observation and practicalities. However, there is no reason why certain groups couldn’t have a communistic system among themselves if it didn’t force others to participate in the sharing of property.

Re: civil vs. criminal law, I don’t think this matters; it’s just a naming classification. I am sure that indiscriminate killers would get more than just fines.

The usual AnCap answer to this (again, educated conjecture) is that the two established courts would have a third-party arbiter already designated in case of a dispute where the two courts could not come to an agreement, and that third party would have binding decision in such event. This sounds plausible to me, but it’s not the only way it could work. The point here is simply to give one example of how it could work, to ease your incredulity about such a scenario. If we can think of an answer that easily, the free market can and probably will find some way that’s even better.

17

Holy crap is that a strawman.

Two things:

1.) What else would the law be other then itself?

2.) What is this nonsense about ‘pushing’ laws onto people? Are you implying that a property owner has no right to establish laws in his/her given property?

That makes no sense. You are postulating that Rothbard and Hoppe want a monopoly system of legal services, yet they obviously oppose the state and frankly call for the end of their coercive legal systems…if a institution is able to install a coercive monopoly on legal services in a given area then it is…a state. So your premise is that Rothbard wanted to end the current state because of hatred for government only then to install another state to make sure the state doesn’t come back and to provide a service on the free market no less?

When the state legal system falls then private law is birthed into existence. We don’t need to violently go around saying ‘Hey follow private law legal systems’ and such would be contradicting the very principle that libertarianism is founded upon.

What happened to that monolithic/monopolistic legal system that Rothbardians supposedly want to setup? Now you are saying that two courts will submit their disputes to a third party [ obviously an organization that is separate from court A and court B for if court A, B, & C were all part of the same legal system why would there be a dispute over the ruling? ]

18

If someone does not show up to a court case, they will almost certainly lose. Then, their guilty verdict will become public knowledge. The guilty party would almost certainly lose their job, and find conducting business extremely difficult.

19

Here is Rothbard: “…the basic Law Code…would have to be agreed upon by all judicial agencies…” “Any agencies that transgressed the basic…code would be open outlaws and aggressors…” (The Ethics of Liberty, p. 236-237)

Exactly. You’ve pointed out the flaw in Rothbard’s position better that I could have.

We agree.

Then you do see the inherent contradiction in Rothbard’s position.

20

If dealing with a problem properly achieves “monopoly status”, I am all for it.

If we can agree that X is wrong, it does not necessitate that Z aggressor will in practice be considered an “outlaw”. This word means to me that they are being actively pursued as a criminal. Perhaps no judicial company would care to investigate neighbors traipsing across each others’ grass besides to issue minor monetary fines, unless one claimant wishes to absorb the cost of investigation.