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Source link: http://archive.mises.org/11731/legislation-and-law-in-a-free-society/

Legislation and Law in a Free Society

February 25, 2010 by

The primacy of legislation should be abandoned. We should return to a system of judge-found law. Scholars who codify naturally evolved law have a vital function to serve but they should not ask for the governmental imprimatur. FULL ARTICLE by Stephan Kinsella

{ 17 comments }

Gil February 25, 2010 at 9:09 am

Bah humbag! The only primary law in Anarchtopia is that the private landowner get to make the laws on his or her land. Private landowners can war with each other or seek a disinterested arbritrator if they can find one. However when on someone’s private land they can get to make the rules therefore it’s statutory/regulatory law there. Those who are landless don’t get to make any laws and there’s probably the Law of the Jungle when they travel in the commons between one landlord’s estate and another’s. In many respects Anarchtopia existed in Europe in the early to mid- Medieval era.

mikey February 25, 2010 at 11:07 am

“Those who are landless don’t get to make any laws and there’s probably the Law of the Jungle when they travel in the commons between one landlord’s estate and another’s.”

In anarchtopia there are no commons.

Second, I may be landless, but I am at the mercy of no-one.I have labor to sell, and the buyer has to cater to me if he wants it.
The seller of goods similarly must cater to me for my
business.Plenty of competition in anarchtopia, you’d like it there.

As to midieval Europe, people were forced into serfdom by poll taxes.

A typical example- http://en.wikipedia.org/wiki/Russian_serfdom

HL February 25, 2010 at 11:59 am

Dare I ask wherefrom the “judges” derive the right to judge?

Daniel February 25, 2010 at 3:03 pm

Wouldn’t they act as arbitrators or moderators which would ask for the voluntary aquiescence of both parties involved in a dispute?

HL February 25, 2010 at 5:49 pm

Daniel,

That’s kind of the point. The “judges” we all know and talk of were agents of the State. Some doctrines developed by these fine fellows was sound, some was not, but what ties all of the common law together is the thread of instituionalized violence – I can judge thee because….uh…. well…….the Sovereign delegated to me, or God told me I can…..

Is it any wonder that crazy doctrines like “intent analysis” was developed by these robed tyrants?

Gil February 25, 2010 at 8:24 pm

Indeed HL the judges seemed have derived from someone and thus ‘common’ law is merely just another law. However the buck has to stop somewhere and someone has to have law-making authority and it falls onto those who have the most valuable asset class: land.

Conza88 February 25, 2010 at 8:39 pm

“While Leoni is vague and wavering on the structure that his courts would take, he at least indicates the possibility of privately competing judges and courts. To the question: who would appoint the judges. Leoni answers with the question: who now “appoints” the leading doctors or scientists in society? They are not appointed, but gain general and voluntary acceptance on their merits.” – MNR

“The role of freely competitive judiciaries has, in fact, been far more important in the history of the West than is often recognized. The law merchant, admiralty law, and much of the common law began to be developed by privately competitive judges, who were sought out by litigants for their expertise in understanding the legal areas involved.[2] The fairs of Champagne and the great marts of international trade in the Middle Ages enjoyed freely competitive courts, and people could patronize those that they deemed most accurate and efficient.

Let us, then, examine in a little more detail what a free-market defense system might look like. It is, we must realize, impossible to blueprint the exact institutional conditions of any market in advance, just as it would have been impossible 50 years ago to predict the exact structure of the television industry today. However, we can postulate some of the workings of a freely competitive, marketable system of police and judicial services. Most likely, such services would be sold on an advance subscription basis, with premiums paid regularly and services to be supplied on call. Many competitors would undoubtedly arise, each attempting, by earning a reputation for efficiency and probity, to win a consumer market for its services.” – MNR

Robert February 25, 2010 at 8:43 pm

I understand the independent arbitrator concept as a mediator between consenting parties; but, how do you coerce the unwilling party: unrepentent murder, rapist, and such. Is it consensual and binding if the accused is brought in by force?

Peter February 25, 2010 at 11:10 pm

The murderer can fall into one of two categories: those who admit to the initiation of force and don’t care, or those who don’t admit it — i.e., who claim to be innocent or to have had good reason for their actions (the other guy initiated it, etc.). In the latter case, why would he refuse to put his case before some judge? In the former case, see Stephan Kinsella’s article on estoppel — he has no argument against the use of force against him.

Learner February 26, 2010 at 2:04 am

“As Leoni has explained, Mises’s criticism of socialism also applies to a legislature attempting to “centrally plan” the laws of a society. The impossibility of socialism is only a special case of the general inability of central planners to collect and assimilate information widely dispersed in society.”

I wonder, does the advance of technology into constantly improving information-gathering weaken Mises’s argument? What if the central planners really could collect and assimilate the information?

Kristian LJ February 26, 2010 at 3:41 am

“I wonder, does the advance of technology into constantly improving information-gathering weaken Mises’s argument?”

I think it does.

“What if the central planners really could collect and assimilate the information?”

Then we wouldn’t have the need for markets anymore. I guess with some sort of supercomputers that could gather and calculate all information conceivably in existence prices and competition loose their meaning.

But we’re nowhere near that level.

Michael A. Clem February 26, 2010 at 3:57 pm

Good article. I especially liked the part about law codification and commentary, because I hadn’t really thought much about that part.
And Gil still fails to understand how a free society works, or how the coercion of centralized legislation increases conflict, instead of reducing it, and thus, his “final arbiter” is likely to cause more problems than solve them.
Also, you don’t have to own land to take a grievance to court. Thus, landowners really don’t have more power in deciding law.
Gil, if government law is necessary for peace, then how do you explain the existence and workings of common law and Merchant Law? I’ll admit I’m not too familiar with Roman Law–I’ll have to look that up.

newson February 26, 2010 at 9:19 pm

to kristian lj and learner:

this article by hülsmann shows why the the knowledge aspect, stressed by hayek but not mises, is not the primary problem with socialism.

increasing computational power will not compromise mises in the slightest.

http://mises.org/journals/rae/pdf/RAE10_1_2.pdf

HL February 26, 2010 at 9:50 pm

Huelsman’s point can be applied to the problem of “justice.” Justice is subjective. The wisest and most gifted sage of a judge cannot truly effectuate justice as between a victim and an aggressor UNLESS there is some voluntary submission.

Note that this problem does not apply to problems of negative rights and the recovery of property – hey, give me back my wallet. Here, there is an objective reality. If we move further into the gray, as in “hey, I was here homesteading first,” a learned fellow could, assuming voluntary assent, apply whatever’s cool in that jurisdiction to solve the problem.

It’s where there is no submission by the party to be judged that we run into a variation of the calculation problem: even invoking the ridiculous voodoo of “intent analysis” a judge can just barely approximate a “just” restitutionary outcome – mainly by seeing if the “victim” is happy with five cane lashings of the bad guy instead of four. Going one step further, the same judge is but a soviet commissar in applying “retribution” to the bad guy. It’s basically pulled out of thin air. Even MNR admitted he had no idea why “two times” makes sense, except that it sat well in his belly. (His belly had more wisdom than most, but still….)

Gil February 26, 2010 at 10:09 pm

Well quite frankly M. A. Clem if there’s no to be no final arbitrator – public or private – then in a truly free society the victim and/or the victim’s family seek retribution/restitution from the perpetrator at their own expense (though they can try to get the perpetrator to pay for ‘enforcement costs’). Two parties seeking the ruling of a disinterested third party would only work in contract law not criminal law.

newson February 26, 2010 at 10:25 pm

to kristian lj and learner:
the herbener paper also makes it quite clear why the socialist calculation debate is not about arithmetic, but appraisement.
http://mises.org/journals/rae/pdf/RAE9_1_9.pdf

see also the salerno papers
http://mises.org/econcalc/POST.asp
http://mises.org/journals/rae/pdf/RAE9_1_8.pdf

Michael A. Clem March 1, 2010 at 10:46 am

Well quite frankly M. A. Clem if there’s no to be no final arbitrator – public or private – then in a truly free society the victim and/or the victim’s family seek retribution/restitution from the perpetrator at their own expense
Gil, this kind of thing has been answered before, even if you didn’t like the answer. If there’s a financial incentive offered, then any number of people or organizations might find it worthwhile to “pursue justice” for a poor individual or family who cannot afford the legal expenses involved. Part of the problem with the current “public defender” idea is that it truly is charitable work that doesn’t pay for itself–a lawyer has to either be forced to do it or to truly do it for altruistic purposes.
However, I fail to see why the existence or lack of a final arbiter makes any difference as far as this particular point is concerned.
Two parties seeking the ruling of a disinterested third party would only work in contract law not criminal law.
This can be addressed in different ways, too, although essentially what you do is make the risk or penalty for not agreeing to court stronger or harsher than appearing in court, i.e. the “outlaw” brand or status. This, of course, depends largely on having a legal system that one can trust to be fair, but that’s already been argued.

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