b) LvMI doesn’t have a position on this particular issue to my knowledge
c) Austrian scholars and others with associated philosophical ideas (whether affiliated with LvMI or not) represent a very wide spectrum of views on this particular issue
d) Ludwig von Mises (after whom the LvMI is named) limited his scholarly work to value-free analysis only, meaning, there is no “ought” component to it at all
Ok, that clears things up quite a bit. So I need to investigate specific libertarian philosopher’s takes on this. I probably need to just keep reading! Thanks for you thorough answers!
If you’re new to libertarian theories I would advise you to always be comfortable challenging everything, no matter how many people support an idea. Never get too comfortable with a theory. If all the collective knowledge of all humans ever was 1% of the available knowledge in the universe, there would still be potential objections in the other 99%. So challenge everything, especially when you’re reading from established figures, or members of organizations, who always seem to be invested in their theories. If you can’t think of counterarguments then a) think harder, and b) hold onto the theory as, at best, the least-untrue theory you’ve come across so far.
@jodi: Glad to help. I’ll give you some quick pointers:
Big-L libertarians tend not to talk about the issue of ending the law monopoly very much, probably because they are less philosophically oriented and more likely to be involved in politics (change the system from within)
Rothbard is probably the guy you have in mind when thinking of the “the philosophy espoused by LvMI”. Rothbard was a propertarian, meaning that he held that law is fundamentally based on property. Hoppe is very similar in this regard though he assigns a less prominent role to reason and natural law theory in the reformation of the legal system. As the fundamental basis of all law, property rights are the ultimate basis of all rights and duties. Hence, for Rothbard and Hoppe, the use of force in the repossession of stolen property is actually a form of self-defense against the ongoing aggression of the thief who is entrapping your property in his possession and thereby actively aggressing against you. The repossession is merely a restoration of the neutral state of affairs (absence of aggression). Walter Block’s views are very similar, as well.
Ludwig von Mises was actually a minarchist and so it is implied in this that he would have objected to the abolition of law monopoly (because the law monopoly is a defining feature of the “archy”). Mises posited that the role of government was absolutely essential but that it was to be strictly limited to the enforcement of property rights. Hence, Mises was a kind of “propertarian minarchist” in the sense that he felt the rest of the law would be worked out by the market so long as the basic-basics (property rights) were enforced by the government uncompromisingly.
I don’t know what the breakdown is, statistically, but I do believe there are a significant number of self-identified Austrian scholars who are more sympathetic to Misesean views than to Rothbardian, that is, they would identify as minarchists and reject as undesirable the abolition of government (including the law monopoly). As such, the views of these “Misesean Austrians” are more oriented to rectifying the misguided populist policies of governments and bringing them more in line with the scientific analysis of human action in economics, rather than trying to abolish government or the law monopoly.
David Friedman is essentially utilitarian - at least in respect to his scholarly positions on this subject. He posits a form of legal analysis that shares some similarities with Richard Posner’s (efficient law) though I think Friedman’s approach is more nuanced. Basically, the idea is to think of the effects of laws on the social order and ask whether they are efficient or whether a more efficient law can be thought of. “Efficiency” here is determined in the Coasean sense as if you could have auctions where people are bidding for certain legal rights or to be rid of certain legal obligations. When the bidding stops and the market clears (I’m speaking very loosely, here), what you have left are the efficient legal rules.
Roderick Long holds that a social order is possible in which the use of violence is unconditionally prohibited; the social order he envisions is not unlike a “secular Amish” where no one ever uses violence, even in response to violence, but the use of violence is completely unnecessary because the consequences of “shunning” or “ostracism” are so totalistic that the unrepentant aggressor has no choice but to voluntarily exile himself on pain of starvation. Take this description with a grain of salt as I have read less of Long than the others and I might be painting his views in too stark contrast.
Stephan Kinsella has a theory of law based on estoppel that strikes me as a cross between Rothbard and Kant; basically, the idea is that once you commit an act and attempt to justify it in court, you are implicitly admitting that you believe such an action is universalizable and, therefore, the victim is justified on your own legal theory to treat you as you have treated him. You can either settle to mutually agreeable terms or the victim can act on your own legal theory and take retribution against you in kind. Again, I have read less of Kinsella so it’s possible I’m painting his views in too high of contrast.
John Hasnas takes an empirical approach to law (I think Hasnas is the closest of anyone to my own views)
Michael van Notten studied Somali law (Xeer) by actually marrying into a Somali clan and his description of the Xeer law system bears a lot of things in common with a Friedmanite view of law (a lot of it comes down to who has to pay how much for what damages), as well as the view of Hasnas, at least, in regard to the empirical nature of customary law.
very cool. this really helps me understand the deeper philosophy behind the reasoning. Now actually going back and rereading most replies, I can better see the thoughts behind them.
I’m not so sure Long holds this view, or at least so far as he does, it isn’t really worth distinguishing him on it. As far as political philosophy goes, he’s no different than Rothbard on the issue. I think where Long might take a stance like the one you describe would be on an ethical level. The individual would be committed to favor non-violent means of “punishment” (I use that term loosely here) in pursuit of their own eudaimonia. Also it may just be the case that ostracism emerges as the dominant form of punishment in a free society, and this is not unlike the left-lib belief that large corporations would be outpaced by small businesses absent government subsidies.
To the OP:
Like everyone has already mentioned (and you have discovered on your own), you can’t talk about proportionality as a thing-in-itself in regards to punishment. We can’t measure how much harm you inflicted on me, and inflict the same amount of harm back on you. That being said, the concept is still useful for anyone in a position to dish out punishment (judges, juries, whatever) because there is a general expectation that these punishments are just. I mean, when we talk about how a free market in law would better satisfy consumer wants, we primarily mean that it has the proper feedback mechanism to “reward” those who do it best and “punish” those who do it worse. But if the good in question is justice, and I think it is, then its still key that legal entrepeneurs strive towards proportionality. Not in a cosmic idealized sense, but in a practical sense rooted in the context of the case and prevailing institutions.