Sure, and I agree with your sentiment here. I think we can speak of a “law industry” and “law services/legal services” to refer to the line of work which lawyers and arbitrators ply. A lawyer sells his expert knowledge of the law and arbitration. But lawyers don’t make law. An arbitrator sells his spotless reputation and expert dispute-resolution skills but he no more makes law than a lawyer does.
It is the disputants who ultimately “make” law. I put “make” in quotes to denote that this is not an intentional process but is, rather, a by-product of the immediate task at hand - settling the dispute. I see this process as a direct analogue to the way prices emerge. Each individual buyer and seller is contributing to the “setting” of the market price but no one actually sets the price. The price just emerges from the independent, uncoordinated actions of many individuals involved in exchange. If I sell you an apple for $1, I didn’t make the price of apples $1. But the fact that you were able to purchase an apple from me for $1 is part of the reason that apples do not go for $1,000 each. No one settlement of a dispute sets the customary terms for settling disputes. But out of many settled disputes there emerges a range of possible terms of settlement. If I stole your car, you would never agree that I should get off scot free. But then, you probably wouldn’t demand that I be outlawed, either. So, you’d settle for something in between. And you’re probably like most people in this regard. When many cases of car theft have been settled, a pattern will emerge and this pattern is what I believe we are referring to when we speak of the law.
No, law industry is fine because the primary tool of arbitrators and lawyers in settling disputes is appeal to the law. In other words, let’s say I steal your car and you’re a particularly vindictive person. You sue me and you demand that I be outlawed so you can hire a bounty hunter to hunt me down and kill me - I think of outlawry as the “death sentence” of free-market law. I stole the car because I was desperate to feed my kids - I’m not an evil person - and I appeal to this in the dispute. You will not listen. My lawyer could ask when has anybody ever been outlawed for stealing one car? If you still will not budge, then arbitration has failed and the matter falls back to our respective security companies. But now the question is between you and your security company… will they accept the legal risk of taking direct, violent action against me (possibly getting involved in violent conflict with my security company) when I had agreed in arbitration to the customary punishment for the crime that I committed and when you are asking for a punishment which no one in the history of the world has ever agreed to bear? Almost certainly not. So, now you’re out of luck. By being unreasonable in your demands in arbitration, you’ve left yourself with no options. You might be able to take me back to arbitration but then you refused on record to agree to the customary punishment which means that I can simply point to that and say “you yourself said you don’t want the customary punishment, so I refuse to agree to anything as large or larger than that.” In other words, by being unreasonable, you’ve only cost yourself.
100% agreed.
Well, all statutes (what are commonly called “laws”) are either bad or unnecessary… kind of like how all price controls are either bad or unnecessary. If you put a price cap of 1 penny on apples, this is bad. If you put a price cap of $1,000 on apples, it’s unnecessary.
Yeah, there is law (conventions regarding the reasonable resolution of disputes) but there are no statutes because there is no State to issue them. This is a thought-experimental society, of course.
The State’s courts and the bars constitute a law monopoly because they control who may practice law, that is, who may work in the law industry.
I hope I’m clarifying. Arbitrators assist disputants in reach mutually agreeable terms of settlement, otherwise called “a settlement.” Many settlements over time results in patterns of customarily accpetable resolutions. These patterns are what I believe to be law per se.
Kind of. The boundary between law and social norm is very fuzzy. This is especially obvious in the old common law systems where social norms were dominant arguments in determining resolutions to disputes. Social order is possible with only social norms and not law per se. I think the difference between mere social norms and law is the division of labor, that is, the emergence of specialized legal professions such as arbitrators, lawyers, legal historians, legal philosophers, expert investigators, scientific witnesses and so on.
A major theme of Mises’s work is that cooperation comes naturally to humans. We don’t need a big billy-club-in-the-sky thumping us over the heads all day long to keep us from murdering each other to extinction. The division of labor creates a selfish interest in cooperation because participating in peaceful cooperation is simply more enriching than engaging in conflict (the State and certain classes of private crime are notable exceptions to this). (Watch this. Read this. And this.) I think order is present in every ‘social’ species, humans included. As far as law, I think that it emerged sometime after humans learned to speak and engage in extended reasoning since this is what makes legal arguments unique from, say, poetry.
Clayton -