“All that matters are the expectations and legal customs, which are elastic and arbitrary”
I agree with the first half. I’d restate it as, social norms and law are what matters. I’d agree that those are elastic, but I’d disagree that they are arbitrary. If what you mean is they arise in a chaotic way, and aren’t subject to selective pressures. My point is that these norms are subject to evolutionary pressures.
In other words, you will see a shape and a form to these norms and laws and in some sense from far away they may seem arbitrary, but when you look closely and follow basic human action, you’ll see the pressures and signals that generated the norm. You’ll also be able to see from different viewpoints how such norms and laws act as information signals that moderate the behaviors of others.
I think it’s important to look closely at these things. Also, examine the rhetoric used as an argument in favor of a particular norm. It’s dreadfully important for us to poke holes in such things. For example, while I laud and affirm for very specific reasons the concept of natural rights, in the way it’s described in the Ethics of Liberty, I would draw a distinction between myself and Rothbard in that I view them as more efficient solution than the ones we observe in practice because it sets up reliable informational feedback signals to the population that promote economic growth, stability and competition. They provide a level of certainty about the social ecosystem into which you act, and that certainty doesn’t have miswired positive feedback mechanisms in it, where a destructive behavior, law, or norm reinforces itself. When the state enters as a monopolist of arbitration and use of force, you end up with such a positive feedback mechanism where the blind spot is in arbitrating and enforcing the law on itself or those acting by proxy in the name of the state.
Jury nullification would be a feedback mechanism that could curtail the other three legs of the US federal government. But if that function is marginalized or impeded one would expect the federal government to grow and expand in unsustainable ways. I believe that is what has happened in practice. Another healthy feedback mechanism in the US republican setup would be state supreme courts nullifying federal law within their jurisdiction. My third example would have been secession at the state or local level.
Of course our optimal solution as anarcho-capitalists would be to abolish the idea that a state has a monopoly on dispute resolution and legal use of force within a land boundary.
Another potential solution would be to invert the sovereignty tree. Give the greatest level of sovereign protection to the individual, then to the local government, then to the state government, then to the federal government. Even the largest of those inversions, (state over federal) would mean a state or group of states could not be able to use federal power to force rules on the other states which they felt were against their own interests.
In organized governments, you find the same battle between have-mores and have-lesses played out over and over again, whether it’s rich states vs. poor states, high population states vs. low population states. The same in county governments within a state legislature. Inverting the sovereignty tree at any level would provide a safe haven for more efficient economic and political processes and institutions to flourish at the expense of less efficient ones. The only way to protect less efficient institutions, processes, and laws is to use force at the highest level as a means of quelling the competitive pressures.
Anyway, back to the original structure. “Right” is a point of view. It’s subjectively generated. Each of the two actors brings a differing point of view to the table. If they are the only two members of society, then they will find a way to resolve it, either through compromise or through an implied or actual use of force if no agreement can be reached. If you add additional members to the social ecosystem, then each actor MUST consider the implications of his behavior on his relationships to the rest of that social ecosystem. In the mores, norms and laws of that society each finds rule-based guidelines that predict how others will react to his response. What’s right? What you can get away with. This I believe is hashem’s point above.
I’d argue that there is a phenomena from which the ideas of property and ownership spring. I provide a definition, I use as an a priori definition for that phenomena. It goes like this, in order for a man to act, such that a dispute can arise, he must use matter, at a specific location and over a specific period of time. The intersection of the 4, intentional mind, matter, time, and location in space, constitutes a basis for dispute, as another man may object due to his differing plan to use a part of that intersection (matter or location) in a way that is incompatible with the first actors use.
I believe that is the most minimalist definition of dispute which one can define, which is also true a priori. This does occur, it occurs as a phenomena that acknowledges subjective values without using subjective values as a means of taking a position on the legitimacy of, or correct resolution of the dispute.
If no one stands with you in your argument about why you are right, and the other party in the dispute is wrong, you are at a dead end my friend. That’s another a priori truth. You can be sure in your mind, that your logical throught process is absolutely true, and still have others say, “So what?” And you’re in a pickle. You can try to force our result onto the other members of your society, and you’ll find out just how strongly they feel about it by the way they act. But all of us know I’m sure, that we as groups are highly resistant to changes to our norms, mores, and laws even in the face of good logical and/or scientific evidence of flaws in our reasoning.
This is why the education aspect of our libertarian and anarcho-capitalist views is so important. Until the basic premises of our systems and ideas are largely accepted as axiomatic truths we’ll have an uphill battle. Until we can construct, argue and support normative positions founded in those axioms with both sound logic and predictive capability, we’ll have an uphill battle.
Even worse, sadly, so much of the social dialog about our norms and laws is based in rhetoric, primarily centered around anecdotal stories that shape the social narrative. So part of our work must be in bringing those tools to the table also. Too often the heart rules the head, and rhetoric and narratives do that very effectively.