Modern criminal law is almost all statutory. Criminal cases require courts to decide whether and how certain criminal laws apply and whether those laws as applied violate the state or federal constitution.
A precedent that applies the common law to a new situation becomes part of the common law.
7 It could be argued that the doctrine of estoppel would become part of the body of law in a private law society but my observation is not with respect to the content of law (specific legal precedents or arguments), rather, it is an existential observation… if a party refuses to accept an arbitrator who applies estoppel, there can be no non-violent resolution of the dispute on the basis of an argument based on the principle of estoppel.
[7] It could be argued that the doctrine of estoppel would become part of the body of law in a private law society but my observation is not with respect to the content of law (specific legal precedents or arguments), rather, it is an existential observation… if a party refuses to accept an arbitrator who applies estoppel, there can be no non-violent resolution of the dispute on the basis of an argument based on the principle of estoppel.
Because Clayton’s long work here didn’t get approved in a timely manner, I am going to offer a challenge and a prize for critiques.
This is on my own, out of my pocket, and has nothing to do with LvMI whatsoever.
The first two (2) quality critiques (pro or con) with 600+ words of unique content (quotes do not count towards the total) each will receive a $15 Mises Book Store gift certificate.
Who judges what is quality? I will. If you don’t like that, don’t participate.
This offer expires Thursday Jan 21st 2010 at 11:59 PM GMT-5.
There is no cash value for this prize, and I’m not going to answer any questions about technical minutiae of the competition (I will remove questions about the challenge from this thread). Get writing if you want to win.
I’ll update the thread with who the winners were by the weekend.
I just bumped up the prizes to $15 each, extended the challenge one day, and decided, if no one meets the challenge, the prizes (one or both) go to Clayton.
“What about stop signs private property? Can I be fined for driving past a stop sign on private property? The act of driving through the stop sign does not, in itself, constitute a violation of any of the property rights of the owner of the land on which the stop sign is situated since I am operating my property (the vehicle) as I see fit.”
if say, you operated your weewee on a property owners floor as you saw fit…would that constitute a violation of property rights? if there wasnt a sign saying “we aim to please so you aim to please”…only a water filled pot??
Well, this goes to the “entangled” nature of physical resources - while my urine is my property (!), disposing of it on your property modifies your property and, hence, likely requires your consent (explicit or, usually, implicit). I don’t see how driving through a stop sign on your property entails any redrawing of property boundaries… what physical resource is modified by my disregard for your traffic flow indications? I’m not arguing that private roadways could not have traffic flow control, they easily could by use of contract. But in the absence of contract, I don’t think that disobeying you while on your property (besides disobeying an order to leave) is a violation of your property rights.
Well I don’t know about 600 words but I will do a little critique and hopefully start a good discussion on the matter. There are some minor issues which I will highlight and address in a point by point summation.
First this statement. So we are to assume a world in a brutish state of nature where no one has rights yet they have property? How does one derive property without rights? In your statements concerning unilateral property lines you perhaps implicitly stated a very key fact to the deficiency of what Friedman is presenting and what you said is an accurate statement and that is ‘exclusivity.’ It is your property to the degree that it is exclusively owned by you therefore disallowing others to partake in it. You cannot have exclusive property lines without first establishing some form of basic rights.
And why should it matter what he thinks of his actions? Would it make a difference if he were repentant? Or if he revealed in the deed? Is it any less of a violation of property lines? To throw out natural rights because of a criminal’s emotions concerning the crimes they committed is shoddy reasoning.
But that is not what law is at all. The law is the legitimate enforcement of moral obligations through either violent, such as coercion, or non-violent, such as social ostracism, means.
And thus the law is not the alternative to violent conflict. For the judge is using the threat of violence, a coercive act which would not be allowed in a initiatory capacity, to reach the goal of restitution.
Not always, especially in crimes of passion.
You never define what is ‘useful to parties’ and truly you are just singling out one method and trying to knock down everything that poses a challenge to it through ambiguous wording. If your whole basis of what is acceptable to both parties for legal disputes is what law is then I submit there is no law. For you have setup a Platonic perfection of the system of law which can only be found in the afterlife. For there is the possibility of someone so militant in their belief of debauchery that they will never submit to legal disputes and then what do you propose to do about them? If Rothbard’s & Hoppe’s system fails because of ambiguity concerning the part of the aggressor then what in your system eliminates such ambiguity and ceases itself to be the same as those that you labeled failures?
How can one accept violence as a non-violent resolution?
Explain how rights just appear from where they weren’t before? This is the deficiency of positive liberty. How can you be empowered by a social institution concerning morally acceptable behavior that isn’t based on human fancy or whim?
By the way, if I win this little affair then I would like a 15 dollar gift card to Chili’s because according to Small Business Man Magazine it is the new place to do business.
Good post Clayton. I can’t find much I disagree with, but I’ll re-read it tonight and see if I can come up with a critique. For now I just wanted to respond to a couple of things LM said…
I think you’re looking at it backwards. Property is inescapable; human beings must have scarce resources under their control in order to survive. The idea of “rights” or “proper ownership” or “just property” or “rightful property” or “property rights” is derived from the idea of property, not the other way round. Any system of law/rights is just a particular way of assigning property. For example, the libertarian system of law/rights is based on the principles of homesteading, abandonment and voluntary exchange. Another system of law/rights could be based on the principle of “the greater good” or something. The concept of property comes first, then rules for assigning property, i.e. laws/rights.
Have you read “Toward a Theory of Empirical Natural Rights” (Hasnas)? It does a good job explaining how rights “appear where they weren’t before”. Also very good is “Boundaries of Order” (Shaffer).
Rejecting estoppel doesn’t help. The purpose of estoppel is to demonstrate to the victim and the other parties cooperating in helping him obtain justice, that his desired punishment of the criminal is justified. It is not to persuade the criminal. His consent is not needed. In fact his non-consent is presupposed–if he consented we would not need to use force against him, or to justify the use of the force. So it appears you’ve misunderstood the argument.
Epic post, Clayton. I read it all, but I am wondering, aren’t you ultimately saying that law is common law, but X…is also ultimately common law, yet Y…is also ultimately common law, however Z…is actually also ultimately common law, etc.?
You’re using the concept of redrawing property lines, but the whole idea of property, where property lines are drawn, and what constitutes redrawing are all…ultimately matters of common law, right?
Also, why does a legal system have to be agreeable to the aggressor after they have aggressed? An aggressor may agree to a legal system beforehand, and of course they will disagree with it after they have broken the law. It seems to me that you neglected that time aspect. If you include the time aspect, at least Friedman’s theory seems to dodge your critique.
First you have to conceptualize property and that presupposes some right to obtain it and enforce excludibility. You cannot do with without property rights first.
No I haven’t. Perhaps you will do me the service of explaining how property can be established in the first place without the right to recognize it as property. How can one homestead without the right to acquire unused resources?
Well, yes and no. Animals exhibit territorialism but they, obviously, have no law (law requires verbal communication and at least a capacity to make deductions and engage in inductive reasoning). Property, that is, heuristics or rules of behavior which divide up physical resources to the exclusive control of one or another entity, are at least partly built in to our biology since even the animals exhibit this pattern. The particular, detailed conception of property that we have comes from long use in common or customary law (the contents of property law) but the “existential component” (to use a $64 word) of property is really antecedent to human verbal reasoning, meaning, it is more basic than law. To say it another way, if there’s an area for law in the human brain, it’s likely closer to the frontal lobe than the corresponding area in the brain for property, which is likely closer to the brain stem because it evolved earlier*.
No, I haven’t, I will read this ASAP.
I think you’ve identified the key difference between my conception of law and the natural rights conception. In the natural rights conception, the aggressor, once convicted, essentially loses some or all of his rights. In my conception, nobody ever loses their “rights” because rights are really an emergent phenomenon, with individual powers being determined primarily by the “brutish” capacity of an individual to use force to do as he sees fit. The motivation for wanting to understand law this way is to try to apply the economic principle of revealed preference to the violence which individuals accept as the outcome of court decisions. A rigorous application of the non-aggression principle would leave a world where punishment is impossible because it is a new, unnecessary act of violence which only makes the world a more violent place, not less. You can argue that if we permit punishment, this will deter violent criminals and then the world will have less violence but the problem is that this is collectivist and unempirical reasoning. There is no demonstrable causal chain from X years in prison to some would-be murderer’s decision to forgo killing someone. How can that possibly be measured? It can’t and the claim that punishment reduces violence in the world, however true it may be, can’t be proven.
But if we analyze the law as creating stipulated resolutions to disputes to which both parties always agree, and the reasons for their agreement being to avoid what they both consider a worse situation (open conflict), then even punishments can be seen in the light of revealed preference. Bob accepts 40 lashes in public as punishment for beating Alice, after Alice sued Bob with the threat that if Bob does not go to court, Alice’s PDA will take direct retaliatory action (likely, kill Bob). Bob’s preference for the 40 lashes means that Bob thought it better to receive 40 lashes than to be killed by Alice’s PDA.
But time shouldn’t matter to the point of revealed preference. You could say, “well, he revealed his preference by choosing to live under that system of rules… knowing what the punishment was, he committed the crime anyway.” But this doesn’t square with the usual meaning of revealed preference. It’s comparing legal systems to choosing a cellphone contract… “You knew you’d have to pay the $200 early termination fee when you signed the contract, so you can’t complain about it now.” But in the most general case, there is no contract between the parties in conflict. Friedman deals with this by arguing that a network of pre-existing contracts between PDAs (almost like treaties between countries) will quickly emerge in a private law society. That is fine insofar as it goes, since the existence of a contract stipulates the penalties for this or that action beforehand, but the problem is what happens when there is no contract and in a great many cases there will not be. It’s like car insurance in the absence of a law mandating it. The car insurers usually just deal with each other through pre-arranged contractual arrangements and car accidents between two insured parties are quickly resolved. But a great many folks (especially poor folks) would be driving around uninsured if the law did not require insurance in order to drive. Whenever one or both parties are uninsured, there is no “automatic” mechanism for resolving the dispute and deciding who pays what. To translate this to private law society, I imagine that a great many cases will occur where one or both parties did not already have a PDA or the PDAs did not have an existing agreement or the existing agreements did not cover the particular dispute which has arisen. The only option is to mandate membership in a PDA which is not very libertarian, is it? [;)]
I agree with Friedman that a network of interlocking arrangements between PDAs would likely quickly emerge and that this would cover 99% of situations but this still doesn’t tell us that these arrangements are good or desirable. The only justification that Friedman gives in law’s order is that a more efficient society results. This is hopefully true but it is no use, as far as it goes, to demonstrating that an individual in a real dispute should accept Friedman’s efficient world. Only if the individual freely chooses an option do we know that that option constituted an improvement in human welfare. The idea of preferring a punishment seems a contradiction since everyone would always prefer not being punished to being punished. But I think that line of reasoning is compare things which are not alike… the choice is not between punishment or no punishment, the choice is between accepting a punishment or martial contest. Since martial contest is a really, really bad option, most people will opt to accept a stipulated, reasonable punishment for their actions to settle the matter.
In those cases where a hard-headed aggressor refuses any court proceeding, we have to imagine that his PDA will not likely want to go to bat for him and will cut him loose. You could say this is bad for business but I don’t think so, I don’t think most people will choose against protection from a PDA because they don’t defend people who won’t go to court. When this happens, the hard-headed guy has to take on the well-trained, multi-billion dollar PDA of his victim. He will lose. The other possibility is that the hard-headed aggressor is part of a gang or has a contract with a seedy PDA, e.g. Drug Dealers Defense Agency, which will go to war to defend its clients even when they refuse to go to court. In this case, we would expect that such PDAs will be marginalized because they are defending a tiny minority of the population which seeks protection from the seedy agency exactly because they are up to no good. So, this is a simple contest between the weight of daylight PDAs versus after-dark PDAs… and there seems to me to be no question of who wins. The multi-national, multi-billion dollar daylight PDA is going to bulldoze the fly-by-night, local, million-dollar PDA. This is Friedman’s conclusion.
At least, that’s how I see it.
Clayton -
*Please note that I’m speaking poetically, here, I am not making real claims about the physiology of the brain
I disagree. Sure, the concept of rights presupposes the concept of property. But the concept of property likewise presupposes the concept of rights. So there’s no chicken and egg scenario; they both arise together.
Sure, but at least in traditional common law settings the individual doesn’t get to decide the law, regardless of their instincts. So I guess I’m a little unclear on what your overarching thesis in the OP was. Can you put it in a single sentence?
These concrete examples help a lot. More like this would be better, because I’m not quite sure where you’re going with this. Unfortunately I don’t have enough time to think this over thoroughly now, but I wanted to keep the discussion going.
There may be no specific penalty mandated beforehand, but there could be a third arbiter specified.
Also, all poor folks (besides homeless ones) already have to have real estate agents, supermarkets, and employers, so why not PDAs? The first three are all necessary for survival; without any one of those businesses they would be homeless or starving (unless very self-sufficient). In Friedman’s world there would be one additional business necessary for survival or livelihood, but I don’t see that as a big deal necessarily.
I also don’t think that someone without a PDA would necessarily be walked all over or killed arbitrarily if they couldn’t pay up. It’s still just us here, if you know what I mean. People will still be reasonable for the most part. I imagine that PDAs would treat uninsured people sort of like cops treat poor people now, but a little better. For both, it’s bad PR to mistreat people. Still, not having a PDA would surely be a poor choice.
Here again you seem to be referring to the individual accepting the whole system, but I don’t see why. It seems inevitable that, to some extent, people are stuck with the world as it currently is. If everyone around you is barbaric, you can either go off and fend for yourself in the mountains or try to get along in society somehow. A political system or a legal system can only increase or decrease the level of violence or barbarism relative to another system, presumably down to some minimum level depending on the characteristics of the people in that society. So I don’t see that there’s any issue of whether an individual should accept David Friedman’s world.
However, what I may be missing here in that there is also something about your conception where it seems as if you’d like to conceive a law system where everyone always agrees on the penalties…or something. That part I’m not quite clear on - both your thesis or goal, and the argument for it. More concrete examples would really help, because the idea seems interesting.
I’ve not time to think this through at the moment, but it seems in some sense you’re putting the cart before the horse. The idea that, say, a young hood who robs a lonely old widow will prefer a punishment to a martial contest depends on the idea of a PDA being the one the hood would have the contest with. If it were just with the old lady and her nonexistent family, he’d probably choose the martial contest.
You could just skip to the last section, because it’s pretty long.
I see property as being a more basic concept, implied by the action axiom and the fundamental fact of scarcity. Property is a scarce resource being used as a means by a human being.
But how is exclusivity enforced in the animal world? Solely by threat of force. Or, to be more precise, solely as the result of amoral calculation of threat and force. Animal territory is not based on verbal reasoning, as rights are, because animals do not have that capacity. So, exclusivity does not entail rights because exclusive control over physical resources is exercised by animals in the absence of law and rights.
Well, it doesn’t matter what he thinks of his own actions to the issue of law. What matters is that we cannot say that a punishment which is imposed results in an improvement of human welfare, where we can say that a punishment which is accepted does. No one will ever accept a punishment because to fail to accept it would require denying natural rights. If the choice is between accepting punishment or denying the concept of natural rights, anyone would deny the concept of natural rights. What difference does it make? Natural rights is just an idea.
No libertarian philosopher that I am aware of agrees with that definition. Rothbard specifically debunks that definition in his Ethics of Liberty.
Right, law in the modern law systems is not an alternative to violence, it is violence.
Kill them. If someone goes around constantly starting disputes with people and refuses to have them peaceably settled, there comes a point where it’s trigger time. To quote Will Smith in MIB, “Don’t start nothin’ and there won’t be nothin’.” [:)]
It’s not ambiguity, it’s that Rothbard and Hoppe (and Friedman and Kinsella) cannot get to a point where the punished party voluntarily accepts punishment because they present the failure modes of court trial to be something other than martial contest. Rothbard would say to the convicted, “To refuse to accept double-restitution to the victim, you must deny natural rights and proportionality of punishment” to which the convicted would reply, “OK, so what?” Friedman would say, “To refuse to accept the punishment which has been arrived at by the courts is to say that you do not want to live in an efficient law society” to which the convicted would reply, “OK, so what?” The same goes for Kinsella’s estoppel argument. In every case, the convicted must either be coerced (by having the punishment imposed upon him) or he has no reason to accept punishment. Of course, my “system” is no different but how I analyze the source of the coercion is different and, I believe, novel, and gives us useful information about why private law is better than monopoly law. The convicted is indeed coerced but the threat of coercion is the alternative to punishment. The convicted came to court to avoid a martial contest with the accuser. The convicted stipulates his punishment, arrived at with the assistance of the court, in order to settle the matter and prevent any further violence between himself and the accuser. That means we can apply the idea of revealed preference even to violence and, if that is correct, that is significant because now we can say why private law is better in much stronger terms than David Friemdan’s Coasean arguments.
Well, the resolution is reached by non-violent means (verbal argument) but the resolution itself may entail violence, i.e. restitution of property. If you steal my television and the resolution reached in court is that you must return it, that resolution is backstopped by the threat of force, it is violence in the very broad propertarian sense of violence.
I think the closest comparison is language. Language and meaning “emerge” from the utterance of sounds. Sounds in themselves have no meaning, but meaning emerged from the use of sounds to coordinate actions. Meaningless sounds became meaningful through a decentralized process of interactions. I’m probably not doing justice to the theory of the evolution of language but I think this sketch outline is very similar to the how law emerged.
