Whom make the law?

Economics Political Theory
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1

I favour an anarcho-capitalistic system in regards to everything: economy, interpersonal relations etc. However, one single thing is still not quite right; the legal system of anarcho-capitalism.

Another thread on the forum (called “Law in “practice” in an anarcho-capitalistic society”) deals somewhat with this problematique. But it only manages to cut the surface. Based on theories made by Linda & Morris Tannehill, Murray Rothbard, and David Friedman I find the said theories inconsistent and lacking.

Linda and Morris Tannehill
In their book “The Market for Freedom” they reject the notion of a statutory law and simply asserts that all one has to do is ask whether one is aggressing against another. This way of defining law in an anarcho-capitalistic society must have its flaws as to what if a person does not ask, what if the person aggressing does not mind the “no” giving to him by the person being aggressed? Is it then legitimate to use violence in accordance with the non-aggression axiom?

Murray Rothbard
As everyone probably knows, the theory of Murray Rothbard has a major contradiction. His theory says that a centralist agreed-upon legal code should be created, and that courts would pledge to follow it. This is a monopoly. My thoughts are that what if some people wants to be coerced? I know Rothbard rejected voluntary slavery in any instance but what if members of a religion wanted to follow the laws of the religion? An example is Islam with its Sharia law. Coerced liberty is still coercion and thus not compatible with the non-aggression axiom.

David Friedman
David Friedman’s theory was to make different laws compete with each other on the market. This is the theory most compatible with the non-aggression axiom in my opinion. Though, it is not necessarily the system which promotes liberty the most. Anyone could make a legal system that forbids victimless crimes, and then anarcho-capitalism would be a minor movement and thus this system would defeat its own purpose.

Can someone help me with this issue by clarifying potential misunderstandings or by pointing to other theories?

2

One important point that seems to be left out of what you’re posting is freedom of association.

If certain individuals wish to be coerced or live as slaves, they are certainly free to do so. However, it is illegitimate to use force to keep them in servitude, preventing them from exercizing their ability to associate freely.

I believe there is a lecture by walter Block on this subject. In voluntary slavery, if you decide you don’t like it you “quit.” Whereas in forced slavery, if you try to leave you are beaten with a whip until you learn to never try again.

3

If law is not enforced by a direct monopoly then only those laws most agreed upon will be enforced. This will almost certainly be limited to defense of person and property. Any abusers will most likely be fought against or lose support, not a hard feet as they have little moral justification in an anarchist society. As for other law procedures free association allows people to pick the most efficient and supported law, in this way a multilateral law system will likely be popular wherever it appears.

So in short law will be mostly written by courts, and enforced/retained insofar as consumers are served by these laws.

Law isn’t that much of a problem, as soon as you think about the enforcement of law in a society where it is treated as a market phenomenon and there is no system of taxation. The larger problem for an anarchist society appears in the provision of defense.

4

Here’s my view on law.

I agree this is an unaddressed and glaring hole in theories of private law society. I address this in the above article in the section “Why We Bargain Rather than Fight.”

Well, I think that Rothbard’s view is that the discipline of academic debate forms a kind of “universal body of rational arguments regarding what is properly the law.” While I agree with this as far as it goes, I think that this discipline is more specialized than he seems to acknowledge, specifically, I think it would be primarily the domain of legal scholars and, even more narrowly than that, legal scholars who specialize in the particular domain of law under consideration. This is a result of my belief that to the extent that Western law systems - such as English common law - have outpaced law systems in other cultures, it is precisely because of the division-of-labor (specialization) within the production of law… that is, the presence of a functioning market in dispute-resolution (arbitration) - which entails the absence of a coercive monopolist on such services.

I don’t think that’s quite Friedman’s view… he sees PDAs (private defense agencies) as the first building-block in the system of property and law and he believes the contracts which PDAs would offer to their clients (spelling out the terms and conditions under which they provide protection, etc.) would form the de facto basis of law. So, the competition isn’t between laws per se but between PDAs (businesses) offering a variety of contracts, most of which are roughly the same (just like most cellphone contracts have a lot of similarities) with minor variations based on the PDA’s particular marketing strategy and niche market segment.

I differ with Friedman in that I do not believe that law originates with defense and so I do not think that PDAs are the first building block in property and law. The reason I believe this is historical… the common law has emerged out of custom, not out of treaties between states and the compacts they sign with their subjects. I think there is merit to Friemdan’s view, however, but I think it describes more the situation if we were to see a radical shift in the global trend toward political centralization and we began to see a rise in secession. As states seceded from federal governments, counties might secede from states and cities might secede from counties but, then, what’s left? Perhaps you could have a “Liberty City” idea where this is taken to the absolute limit and even the city government itself is dissolved and, in its place, you might have PDAs and the process that Friedman describes might begin to take place.

However, “the law” is still something outside of this process in my view. Law is emergent, like language. No one, not even the government, can decide what constitutes the language. Language is whatever people use to communicate with one another and that is decided completely autonomously without reference to any central authority. Similarly, law - in the final analysis - is whatever norms people accept in living and working around each other and resolving disputes between each other. The content of these norms is decided completely autonomously without reference to any central authority. Therefore, governments do not and never have created law. In making statutes, they are simply declaring (their own) policy, with varying degrees of secrecy, honesty and stability.

Clayton -

5

Hey, Simon, welcome!

I used to have the same dilemma that you have right now. I’ll address your different points:

what if a person does not ask

Note that criminals do not ask today either (unless they want to play mind games with you).

what if the person aggressing does not mind the “no” giving to him by the person being aggressed

It seems like here you are not dealing with the justice system itself but what happens before the crime, which is not really relevant, as the same could happen today.

what if some people wants to be coerced

Not a problem, they can do that. Remember - you can always forgive a criminal. Since the justice system exists only to serve the individual, not the state (as it is today), then the individual may choose to waive his entitlement to a restitution.

what if members of a religion wanted to follow the laws of the religion? An example is Islam with its Sharia law

If you want to follow those rules then you don’t bring up charges of abuse in the courts - that simple. If I want to get beaten in the face with a fish, then since I want it, I will not sue the guy beating me up (and will also not call the cops).

Now, what you cannot do is to have a system of slavery which prevents your from exiting the system once you’re inside.

As to Friedman, I have not read enough to respond to that.

However, I can highly recommendChaos Theory by Robert Murphy. It deals exactly with private law, and it’s not that long (2 sections, one for law and one for law enforcement).

Just remember to always compare the system to what we have today and ask yourself why the system today “works.” Overall, people believe in the courts’ justice. In fact, we have a monopoly on law and law enforcement, yet things go generally smoothly. The reason the system works is psychology. People believe it’s just, so they support it. Mass psychological support creates stability. Furthermore, the justice/police system itself has morals. I don’t see the police creating tribal warfare.

6

One way I have thought of it is that if we ever achieve a voluntary society, it will be through persuasion and education. If people are convinced to non-violently establish a voluntary society, customary law would be generally libertarian.

I think standardization in law would evolve through insurance agencies, etc.

Hoppe:

Furthermore, the greater the number of insured people—and in a modern exchange economy most people want more than just self-defense for their protection—the greater would be the economic pressure on the remaining uninsured to adopt the same or similar standards of non-aggressive social conduct. Moreover, as the result of competition between insurers for voluntarily paying clients, a tendency toward falling prices per insured property values would come about. At the same time, a tendency toward the standardization and unification of property and contract law would be set in motion. Protection contracts with standardized property and product descriptions would come into existence; and out of the steady cooperation between different insurers in mutual arbitration proceedings, a tendency toward the standardization and unification of the rules of procedure, evidence, and conflict resolution (including compensation, restitution, punishment, and retribution), and steadily increasing legal certainty would result. Everyone, by virtue of buying protection insurance, would be tied into a global competitive enterprise of striving to minimize aggression (and thus maximize defensive protection), and every single conflict and damage claim, regardless of where and by or against whom, would fall into the jurisdiction of exactly one or more enumerable and specific insurance agencies and their mutually defined arbitration procedures.

7

No.

Clayton -

8

Hello!

First of all, I am greatful for all the quick and great answers I have received; thanks a lot! I would like to remind you all, again, that I consider myself an anarcho-capitalist. However, I was mildly confused as to the creation and retention of the general law.

Josh:

I am not mentioning freedom of association at all. In fact, I imply that I am for voluntary slavery in opposition to the views held by Murray Rothbard. I believe that the axiom of self-ownership is invariable, hence axiom, and if an individual wants to engage oneself in acts where coercion is used, the individual is free to do so. I am not attacking this notion; I am merely stating that Rothbard was against it.

And it is not quite correct to state than in voluntary slavery you can quit it at anytime. It depends on the contract made between two or more consenting adults.

Neodoxy:

I agree with you on the statement that law is not a problem in a society where it is treated as a market phenomenon. Though, what if people disagree on victimless crimes? It is not safe to say that the laws of the consumers will be in favour of these and thus a society is not really anarcho-capitalistic.
Clayton:

Thank you for the enlightening response!

Wheylous:

Thanks for the welcoming! One key reply to me was on my question whether some people want to be coerced by their free will. You answered that you simply does not do anything since there is a common consent involved. However, this does not match up with Rothbard’s view of law; justice is not being served.

I read “Chaos Theory” by Robert Murphy and there is one thing I do not quite grasp. When entering a mall, every single customber cannot fairly sign a contract upon entering which states how murder committed by that customer may be handled. Should I, by this definition, sign contracts every time I am going outside?

Wesker1982:

Now, I agree laws would be generally libertarian as to outlawing involuntary coercion and initiated violence against property. However, my critique is as to what people would think about victimless crimes. Prostitution is a victimless crime, being a drug dealer is a victimless crime etc., and some people might want these acitivities banned based upon your reply.

9

And it is not quite correct to state than in voluntary slavery you can quit it at anytime. It depends on the contract made between two or more consenting adults.

We’ve covered this before → here

Generally speaking, the only contract that matters is one in which property is entitled to someone else. Promises cannot be enforced (I promise I will go to bed before 10 pm is not an enforceable contract). Similarly, if I leave the slave quarters there is no property being destroyed.

If any contract whatsoever could be enforced, then you run into the problem of “voluntary rape,” where some time in the past you said that you’d be consenting in the future, but have since changed your mind.

However, this does not match up with Rothbard’s view of law; justice is not being served.

I doubt that. You would argue that whenever you have surgery you must have justice served to you and have the surgeon jailed for cutting you up?

When entering a mall, every single customber cannot fairly sign a contract upon entering which states how murder committed by that customer may be handled

Really? Isn’t that what you do with hotels? You sign a contract. I have thought of this before as well - it seems a bit… inhuman to sign a contract like that. But really, you only must sign the contract once with the mall. In fact, the mall might join some larger organization of business owners to make the task that much simpler on you. You will not have to sign a contract every time you enter a given store.

About your response to Wesker:

To arrive at a libertarian society, people will have to accept the NAP anyway (Clayton disagrees). Victimless crimes are the clearest violation of the NAP, so they will be the first to go. Even today in society victimless crimes are on their way out (at least pot).

10

the law comes out of the barrel of a gun thats the bottom line. whoever has the biggest stick to wave, decides what to do. all the libertarian fantasies and dreams abouth things ought be done have little relevance to this, as libertarians make the same assumption as socialists - that they are the ones to be controlling how policy and violence is to be used. Startling naivete from the movement, and such mysiticist radicalism is what is hurting them, preventing practical progress from being made.

The mechanism of law is what it is, the monopoly of violence as it has taken control everywhere in the world, and that is what we have to deal with, not these utopian dreams of selfless robin-hood mercenaries taking those whoever happens to violate the Rothbardian rendition of the NAP.

11

Wrong, aervew. Police these days generally serve the law. They do not do gang robberies of stores en masse. We see that they are controlled by some moral character. That’s why we don’t degenerate into tribal warfare. The police generally follows 1) the law 2) the opinion of the public. If the police is told to arrest someone for possession, they will likely do it. If they are told to wipe out an entire (US) city, it won’t happen.

12

"Generally speaking, the only contract that matters is one in which property is entitled to someone else. Promises cannot be enforced (I promise I will go to bed before 10 pm is not an enforceable contract). Similarly, if I leave the slave quarters there is no property being destroyed.

If any contract whatsoever could be enforced, then you run into the problem of “voluntary rape,” where some time in the past you said that you’d be consenting in the future, but have since changed your mind."

I’ve checked the linked thread and I can see where you are going with your argumentation. Remember, I am just curious to new ideas; I am not opposing anyone’s beliefs.

“I doubt that. You would argue that whenever you have surgery you must have justice served to you and have the surgeon jailed for cutting you up?”

Hardly, because me consenting to the surgery would make it a voluntary act and thus not incompatible with the non-aggression axiom.

When it comes to the contracts my biggest problem would not be the inhuman part (still, I very clearly see your point), but rather the fact that it is impractical to carry around a pen at all times and sign contracts all the time (not with the same mall, I get that). Before this can be implemented there is a need for a more smooth technique; via mobile phones for example. But please tell me how a larger organisation of business owners may simplify the process? Standardised contracts, I guess, but are there more than can be done in regards to this matter?

Victimless crimes are not at all on their way out. I live in Denmark, and bigoted people continuously make the case against drugs, against prostitution, against gambling, etc. However, even in Denmark the pot question is being somewhat heavily debated which, of course by our means, is progress in a positive way. But other victimless crimes are definitely not on their way out - unfortunately.

13

@Peter

Despite what many believe it’s certainly possible to concieve of an anarchist society which does not have laissez-faire, indeed it’s also possible for an anarcho-capitalist court system to be socially conservative and repressive.

The market for law depends upon that which the vast majority believe, any less than that and resistance starts to the law and it will almost certainly become to costly to enforce both ideologically and physically. If an overwhelming majority of individuals believe that there should be interventions in the economy then there will be interventions, period.

However, with this being said, I believe quite fervently that in any society where this competative court system was brought about libertarianism as an ideology would flourish and such interventions would be almost entirely removed.

@arevew

  1. No, that is not the only thing that determines law, if that were the case then the presidents would have long since imposed a totalitarian regime. Law is created either by those who are viewed as legitimate by those who have enough power to stop them if it is to be a long term law. Law is not lastingly made by those who have the largest guns because simply becuase I have the “largest” guns does not mean that the several smaller guns cannot take me down. Indeed if you had such concentrated power then there would be little reason to have “law” in the first place, certainly not in the way we see it today. Law is enforced through violence in almost all cases, but it is never created by those who have such power that they have impunity from everyone else. Not even totalitarian China has such a luxury.

  2. Of course libertarians make the assumption that OPTIMALLY they will be the ones making laws. Believing that you can be the one to make the laws is necessary for a practical example. Let’s give an instance where this doesn’t happen: “Okay what would make society better off in relation to government? Oh, well I can’t control the law so there’s nothing”… You have to say that if certain laws are passed then X, not give up at phase 1 and pass no judgement. Furthermore socialists and libertarians are not the only ones who make this mistake, it’s also the basis of all statist belief systems: conservatism, liberalism, authoritarianism, fascism, ETC. Indeed libertarians and socialsts make this error LESS so than others do by attempting to install ways to prevent others from making the law. In socialism it’s direct democracy, in libertarianism it’s either an amazingly strict constitution or a polycentric legal order.

  3. There is a good deal of irrational belief surrounding the NAP as a moral requirement, but there seems to be a lot of attention given to the pragmatism of the law, especially because “libertarian” in this instance, means a lot of things.

  4. That is how law has been embodied throughout all states, however it is likely that in an anarchist society the monopoly would take on a different form than what you are saying it would. This is a historically verified fact. Furthermore the law can be undermined, and in that way no one is saying it isn’t what we currently have to deal with, we are trying to change the system, and so we can undermine it or attempt to change it all together in the mean time. You have given 0 evidence as to why this cannot happen.

  5. Anarcho-capitalism is not utopian

  6. Anarcho-capitalism does not rely upon selfless mercenaries, nor do these mercenaries have to do this dilligently of their own volition. Much of the law would likely not be enforced by force itself, it would probably be moved to a more financial and social type of punishment because for minor crimes it would be easier to do. In cases where force is necessary the courts would be the ones sending mercenaries (if that’s what you want to call them) after criminals and they would not have to be selfless, even though I think general good behavior would be more likely out of mercenaries without a state ideology to hide behind.

What’s your argument again?

14

I am not opposing anyone’s beliefs

No one says you are, and even if you were, we welcome discussion here.

Hardly, because me consenting to the surgery would make it a voluntary act and thus not incompatible with the non-aggression axiom.

Same with the guy being in voluntary slavery. It’s voluntary, so it’s not aggressive.

but rather the fact that it is impractical to carry around a pen at all times and sign contracts all the time

Malls can easily offer you pens to use :stuck_out_tongue:

But please tell me how a larger organisation of business owners may simplify the process

They write up a contract that says “by entering our property you agree to rules such and such and that we may use reasonable force to have you leave if you violate the property of anyone and then sue you in court X for violations.” You sign this contract for a very large conglomeration of businesses so that you don’t need to sign the contract for single businesses.

But other victimless crimes are definitely not on their way out - unfortunately.

Alright, then, I might be ignorant on that matter. Yet I do think that in some 50 years a lot of the victimless crimes will be off of the books.

15

Now, I guess you’ve completely convinced me, Wheylous, but I shall remark one thing:

Rothbard opposed the notion of voluntary slavery. Therefore, you cannot compare the surgery with voluntary slavery. Rothbard would not characterise a surgery as voluntary slavery but rather a contract between to consenting people. Voluntary slavery would include a contract as well, but due to the axiomatic self-ownership principle, he did not support this thought.

16

What is slavery but the use of force to make you do certain things?

We already agreed that you can allow people to use force against you if you so like. So at any given point, you may want to be a slave. As such, you allow others to use force on you.

However, you retain the right to end the power of others to use force against you.

This is where the distinction between two types of “voluntary” slavery comes in:

  1. Initially-voluntary slavery: You agree at the beginning, but later you want to leave and you are not allowed to. This is unethical.

  2. Constantly-voluntary slavery: You agree at all points of the process and do not wish to leave. As such, it’s always ethical, because you agree to it.

#1 is not allowed, #2 is. Why? Because if #2 is not allowed, then surgery is not allowed, which is absurd. And if #1 is allowed, then you do not have the right to leave the surgical table if suddenly the doctor whips out a chainsaw and starts revving it.

17

“Prostitution is a victimless crime, being a drug dealer is a victimless crime etc., and some people might want these acitivities banned based upon your reply.”

@Peter: I think you’re missing the bigger picture here… a private law society will not result in a pure-NAP world (contrary to the beliefs of some posters to this forum) but, rather, will result in those who care to pursue victimless crimes having to pay for their zealous beliefs themselves. And that’s the key. We only have drug prohibition and prostitute-prohibition and gambling prohibition or fill-in-the-blank vice prohibition because those who run the State apparatus have the capacity to make other people pay for their pet social engineering projects which they enforce through statutory laws.

The key is to eliminate the export of the costs of social engineering from one group onto another. If you want to live in a drug-free society, then you need to pay the costs. You shouldn’t get to force other people who don’t give a crap about drugs or maybe even like to use drugs themselves to pay for your pet, anti-drug project. Of course, people tend to be a lot less zealous once they have to foot the bill for their own zeal, if you get what I mean.

Clayton -

18

Hm, but how come tons of Americans supported invading Afghanistan? Seems like successful social engineering… or are you saying that if payment was actually voluntary people would not have paid into it?

Furthermore, it seems to me that to eliminate taxes themselves you will need the idea of the NAP in people’s minds.

19

Google “rational ignorance” and “rational irrationality” to get the idea from a technical standpoint. Basically, when you pay for something at the grocery store, there is a direct connection between the money coming out of your wallet and the items which you receive in return… that “immediate loss” to your wallet is what forces you to be rational, to really deliberate about your own preferences and try to make decisions that best reflect your true preferences. The more that “immediate loss” is deferred (e.g. through consumer credit cards) or, worse, the more it is actually socialized onto others (you never have to pay the cost), the less incentive you have to be rational and the less it matters whether your choices reflect your true preferences since you can always come back for more, later.

Hence, you are a very different person in front of a ballot box than you are in front of a cash register. In front of the ballot box, you are a very zealous, metaphysical, idealistic sort of person and you are trying to “do what’s right.” In front of the cash register, you are a very moderate, practical, down-to-earth sort of person and you are trying to “do what makes sense.” We keep observing that the outcomes of our political system don’t make sense. That’s because the system divorces decisions from their costs (and, sometimes, from their benefits) both by deferring them and by exporting them onto others.

Not the NAP per se, but yes, there has to be an ideological shift back in the direction of property rights and voluntary exchange. For the time being, the vast majority of the public is still deluded with “democracy” and nothing’s going to change until that changes. Until people beging to realize that a particular decision-making procedure is not the answer to their problems, we’re stuck with this damn status quo and things will necessarily continue to get worse and worse.

Clayton -

20

Rothbard rejected “voluntary slavery” as an oxymoron, which it is. From http://mises.org/daily/2459#ixzz0nx4DiTmB

The distinction between a man’s alienable labor service and his inalienable will may be further explained: a man can alienate his labor service, but he cannot sell the capitalized future value of that service. In short, he cannot, in nature, sell himself into slavery and have this sale enforced — for this would mean that his future will over his own person was being surrendered in advance. In short, a man can naturally expend his labor currently for someone else’s benefit, but he cannot transfer himself, even if he wished, into another man’s permanent capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement. The concept of “voluntary slavery” is indeed a contradictory one, for so long as a laborer remains totally subservient to his master’s will voluntarily, he is not yet a slave since his submission is voluntary; whereas, if he later changed his mind and the master enforced his slavery by violence, the slavery would not then be voluntary.

Emphasis mine. I agree with Rothbard that you could not be forced, by virtue of contract, to remain in servitude against your will. As long as you’re willing it isn’t “really” slavery, hence the confusing term “voluntary slavery.”