Whom make the law?

[ClaytonB]

Here’s my view on law.

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?

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.”

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.

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.

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?

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 -