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Source link: http://archive.mises.org/14351/law-and-appeals-in-a-free-society/

Law and Appeals in a Free Society

October 25, 2010 by

How would appeals work in a voluntary system of private law? Would defendants be able to appeal clearly outrageous convictions? If so, then what’s to stop a murderer from indefinitely appealing his cases? FULL ARTICLE by Ropert P. Murphy

{ 93 comments }

André October 25, 2010 at 9:43 am

I have a couple of objections, even if I am really sympathetic with the idea of a privatized justice.

1) If there is still one organization holding legislative monopoly, probably you can privatize justice and law enforcement with no problems and many improvements. There might be few critical situations, but a good legal system could take them into account and almost certainly things would run more smoothly than now. On the other hand, if you plain REMOVE the legal centralized authority and think that mere opinions of private judges would do, you are setting us back to a rather unpleasant and dangerous past. What if Thad would simply say, from the beginning : “Get lost! I don’t have time for your stupid lawsuits and besides I just don’t care!”? On which ground would you be allowed to use violence on him and take back that laptop he might not even have stolen? You need a universally valid law that says “anyone who, upon request of a fellow citizen, refuses to submit himself to a judge can be freely killed or expropriated without consequences”. I really would not like to live in a place where such laws are valid, trust me. Anyway without such a universal law about careless subjects, you simply have no right to force him to subscribe a service he does not want (and, yes, maybe he does not want exactly because he’s guilty).

2) I think you put too much trust into customers. Surely they can counter-select bad private judges and put them out of business. But you do not consider the hypothesis of private judges who do not care to be put out of business. Yes, it seems strange, but with my job (I work as legal and fiscal counselor for enterprises) I see this type of entrepreneurs all the time. They simply open their activity for ONE SHORT SERIES OF DEALS, typically frauds or portions of a bigger scam. They cheat all the people they can cheat and then simply close the show, or sell their enterprise to a paperless immigrant. Their business is focused on the shortest of terms, they do not even think about the reputation of their firm – cause, when people will start realizing who they dealt with, our heroes will be already (safely) out of business. Ah – do not think they represent a neglectable percentage. They are more than you might think. I cannot even imagine the damages such entrepreneurs would cause in the judging business. Sometimes customers do not have time to spot bad apples.

Brian October 25, 2010 at 12:18 pm

Rothbard addresses the problem with forcing defendants to show up for a trial in Ethics of Liberty. You could hold the trial without the defendant if he refuses to show up. If the judge finds the defendant guilty, bounty hunters may need to be employed. Once the guilty party is found he may decide to appeal the decision and present his case. If the guilty verdict is overturned, the falsely accused may be able to countersue for all the stress this case caused him.

Reuven October 25, 2010 at 1:41 pm

how is the “tyranny” of the police in a state different from the action of a bounty hunter hired to kidnap people and bring them by force of arms to face a trial?

Brian October 25, 2010 at 3:30 pm

Because the person who employs the bounty hunter would be held liable if the accused was in fact innocent.

Wildberry October 25, 2010 at 3:51 pm

That’s a little late for the innocent, right?

What happened to one of our most tightly held legal concepts, “innocent until proven guilty”?

Brian October 25, 2010 at 5:33 pm

Good question. What part of our current system upholds that principle that a free market would not?

Wildberry October 25, 2010 at 5:45 pm

Brian,
This whole issue is already well defined in our current legal system. I don’t know the answer, because I cannot point to an example of an alternative that has found expression. So I turn the question back on you. How does an untried, unproven “free-market” solution improve upon what we already have?

Even if you could explain waht you mean (as this article clearly does not do) by “free market” solution, given that by RM’s own words ancaps can’t be expected to think of everything this free-market would produce, you fail to demonstrate what is improved.

Why would I buy something, the benefits of which are not proven?

Gil October 25, 2010 at 9:25 pm

A bounty hunter could not always just walk around and kidnapping people for trial. Depending on where he goes he could be legally shot as a trespasser. There’s probably something to be said that once an accused person is outside the private scene of the crime then not much can be done in the same way that if an accused nowadays had entered another country and that country won’t allow any one to arrest him.

Stephan Kinsella October 25, 2010 at 10:32 am

Those interested in this may also find of interest my article Legislation and Law in a Free Society.

Wildberry October 25, 2010 at 4:43 pm

At least this article from SK provides a premise that is useful; that legislative law has the potential for disrupting the natural process of discovery characteristic of the common law, similar to the process of government intervention into free markets.

On the other hand, a pure common-law system has the potential for making “forum shopping” a worthwhile pastime. This is one advantage to developments like the Model Penal Code, the Uniform Commercial Code, and the U.S Constitution.

It is aall a matter of the trade off. Whereas a case may be made that we have made some bad trades, it does not follow that the entire concept of “legislative law” is absurd. Likewise, the entire concept of “government” is not absurd. It has some merit, even if only by accident. And by the way, both were developed as more of a private effort, later adopted by government bodies. And ironically, so are most laws being written today actually penned by private interests. This is why lobbyists and Washington lawyers are so much a part of our current State in D.C.

And where it may be said that evolution is just a series of accidents, it is also apparent that evolution carries with it a type of wisdom that requires time and trial-and-error to develop. The legal system is one such product of evolution.

There must be some reason why it has survived beyond just the State’s power to enact legislation.
It would be just as valid, and perhaps more productive, to begin a revisionist effort to change the legal system with a catalogue of what is good about the current system, and attempting to discover at precisely at what point it goes bad.
I agree with SK’s summary on this point:
“Both the Roman law and common law have been corrupted into today’s inferior legislation-dominated systems.”
That is equivalent to saying, “The free market system natural to free societies have been corrupted into today’s inferior interventionist-dominated systems”.

Therefore, by removing the corruption, and the opportunities for special interests to benefit thereby, we may establish a more desirable outcome.

I can buy into that.

Matthew Swaringen October 26, 2010 at 5:30 pm

“It would be just as valid, and perhaps more productive, to begin a revisionist effort to change the legal system with a catalogue of what is good about the current system, and attempting to discover at precisely at what point it goes bad.”

It goes bad from the first step. If it doesn’t seem as bad after the first step, that is not because the system is a good idea but because the people currently running it aren’t so bad and/or it doesn’t have the necessary power to effectively intervene to cause the level of problems it does when it is larger.

It can also seem considerably less evil when you have a low population and a relatively homogeneous culture and people. It still is a net detriment, but since the people want the same kinds of things from the government they aren’t going to grow to dislike the policies of one another the same as we do here in the US, where everyone has entirely different ideas of how things can and should be done.

“Therefore, by removing the corruption, and the opportunities for special interests to benefit thereby, we may establish a more desirable outcome.”
You’ll have to define what you advocate for this to be convincing to anyone. This isn’t to say that there cannot be a convincing argument if you don’t know the answer, but you aren’t giving sufficient reason to go along with your analysis without it.

King George October 25, 2010 at 11:54 am

“anyone who, upon request of a fellow citizen, refuses to submit himself to a judge can be freely killed or expropriated without consequences”

That’s how things work in Somalia (and also how things worked in Iceland), the favorite examples of anarcho-capitalists around here.

Joe October 25, 2010 at 3:57 pm

@King George, I agree with you 100%. Whenever I hear the Ancap arguments I only see good people trying to establish something that has a very slim and none chance of happening. I didn’t say it can’t happen but the human race will have to change dramatically from what it is now. So I try to find the best alternative to a minimal state. I believe if we got back to the orginial ideas and laws that were established under the constitution then we would have a better chance to control government the way it was defined and established. Now this will be difficult but it has a lot better chance of succeeding. A strict reading of the constitution would be the standard and judges could not legislate from the bench. All legislation must pass this test and would be shot down if deemed unconstitutional. There would have to be another way to nominate and elect Supreme Court Justices. Today they are too political and all they want is to mimmic their own idealogy and not the rule of law. Otherwise, we all could live in Somalia or Iceland and live the good life.

Wildberry October 25, 2010 at 4:47 pm

Joe,
This is exactly how things work today, except when it doesn’t.

There is a good deal of wisdom, IMHO, in what you say here.

Fallon October 25, 2010 at 9:04 pm

You give no creedence to praxeology then? I.E. What example of your constitutionalist utopia do you have that cannot be countered by other historical data?

Joe October 26, 2010 at 12:57 am

@Fallon,
there is no utopia when you talk about a document that clearly limits government powers. As for the historial data one can see the slow destruction of this document. One can see where we went wrong. One can now understand how it can be put back together again and done right. It will be a battle and it quite possibly might not be able to be done. I still don’t see how we go directly to an AnCap society. No one on this blog site has even attempted to clearly show how we get from here to there. With the constitution at least we have a history outlining the events that chipped away at the original document. I can see through education a reversal of what went wrong. If we just reversed the destruction from Woodrow Wilson to present we would have accomplished a lot. The rest of the restoration would be a lot easier. Praxeology states that individual human beings act. Well let’s act and restore what is possible and then work on what is probable after.

Fallon October 26, 2010 at 1:26 am

Just citing data proves nothing. But in that you are still resorting to predetermined ways of interpreting– but not praxeology, and that is where the difference is. If praxeology leads one to understand that the political means must be eradicated or at least subordinated to the market, then so be it. If I employed empirical observation, history too, as if facts could reveal an answer to the minarchist vs. anarchist debate, then it seems we could go back and forth ad infinitum citing events that prove/disprove any hypothesis (just the idea of hypothesis in social science is trouble). It is the quality of a prior reasoning that needs to be looked at.

For instance, Spooner is very instructive on that piece of paper you mention: “But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”

Quite an analysis, right? But then again, surely you recognize the difference between a real contract and the mythical ‘social contract’?

Besides, what is productive in your life is anarchic – right now. Cheers

Joe October 26, 2010 at 11:24 am

@Fallon,
I’m still waiting to hear about the AnCap solution to getting from where we are now to AnCapville. You have to understand that you are speaking to the choir but the means of attainment are different. The big bad government is not going to go away just because we are moral and intellectually right in our beliefs. I come onto this site to be educated and inspired by all the other libertarians who truly believe in liberty. I try to be open minded to the AnCap position but no one has as of yet given a brief outline on how we start to reverse or totally encorporate a new AnCap society.

Fallon October 26, 2010 at 11:48 am

Well, in a word, education. Ideas are what inform actions. When the vast majority believe in the state mechanism it becomes a self-fulfilling prophecy of parasitism. If this opinion is changed then the legitimacy of e.g. nation-states will collapse. Education vectors can take many forms; the possibilities are endless. Obviously Mises.org is one. Another is having famous, desired and admired people embody the message. There are a zillion ways of semiotic representaion as well. Anyway, ideology is where the war is to be won.

Why, do you think that even if ancap is logical, praxeologically correct, and holds moral sway, that there could be practical factors precluding any possibility of change? But isn’t the possibility of change implied in the nature of ideas? Even if ancap were to be gained, it could fall back into statism too…

what say you?

Jordan Viray October 26, 2010 at 1:56 am

“anyone who, upon request of a fellow citizen, refuses to submit himself to a judge can be freely killed or expropriated without consequences”

Dr. Murphy did not suggest that; indeed he suggested such individuals who adopted this course of action would be foolish and lose goodwill in the community.

André made that statement as his own conclusion that for anarchic law to work, you would need “a universally valid law that says anyone who, upon request of a fellow citizen, refuses to submit himself to a judge can be freely killed or expropriated without consequences”.

Of course, that is self-contradictory nonsense as there is no authority in anarchic society able to create such a “universally valid law”. But it’s interesting to see those who bought into such a plainly false premise.

Juraj October 30, 2010 at 5:24 pm

There is plenty of stuff about current law system in Somalia. Icelandic Commonwealth:

http://www.lewrockwell.com/orig3/long1.html
http://notendur.hi.is/bthru/contents.html

Reuven October 25, 2010 at 1:38 pm

Ayn Rand was right; such a system cannot be conceived because such a society would devolve into gang warfare. The idea that a thief would somehow “choose” to dispute such an accusation by following a principle of law in this society ignores the matter of fact a thief is a thief because he already “did not” choose to follow the principle of private property so there is no reason to think that he would be so inclined to submit himself voluntarily to a “free marketplace” of law enforcement. Hiring out a bunch of police or repo men from company X to go and reclaim ones property will just be met with an equal number of police and “self-defense” experts from company Y. What happens next? Gang warfare. It is obvious that a free peaceful society cannot exist without law and order imposed by an entity endowed with a legal monopoly on the use of force.

praxeologist October 25, 2010 at 3:47 pm

Your objection is covered here in #4 somewhat and #5 is related to the blog post. Anyone thinking to object ought to read that piece before doing so.Certainly, nothing rules out the fact that firm X will fight firm Y over a dispute. You need to really consider what all is going on here though. Assume that y (the thief) is just a subscriber to firm Y, and the evidence against y is fairly damning. Likewise x is a subscriber to firm X. Person y does not have a personal group of hitmen ready to defend him at all costs. Firm Y has to choose whether to defend y, that is not even allow a case to come to trial or refuse to abide by a ruling, or to cooperate with firm X’s request for trial (possibly by a third party arbiter).Firm Y has to weigh its potential gain from future fees from one subscriber, y, versus being a known defender of thieves and losing every other subscriber. After all, how would firm Y settle a dispute between two of its own subscribers if its policy is to blindly defend every subscriber from any sort of prosecution. On top of that, firm Y has to worry about not only firm X, but also firms A, B, C, etc. banding together and treating firm Y as a “rogue PDA”. This is really a perfect example of consumer sovereignty. If the vast majority of people accept libertarian grundnorms and the institutions who provide security are dependent on these folks’ payments, a rogue company Y will likely be outgunned.Just assuming that the power of X=Y (or more accurately, multiple firms represent each side), means you assume that an issue like murder, rape or theft being just or not is a divisive issue. Such situations might come up, but probably not as often as you make it seem.

Wildberry October 25, 2010 at 4:09 pm

This argument completely ignores one of the objectives of a justice system, namely administrative efficiency. This efficiency is a product of “justice”, “timely adjudication”, and “administrative efficiency”, at a minimum.

The reason we have devoped the concept of civil procedure is precisly for the purpose of balancing these conflicting social needs. We have evolved rules which determine the process of adjudication that attempts to arrive at “fair”.

And by the way, you completely ignore the fact that any two people can agree to use a private system of adjudication, either by contract in advance, or by mutual consent after the dispute arises.

If you want to live in an ancap legal world, just agree with your counterparties to alternative dispute resolution. It’s there for the taking.

Also, our current legal system puts these decisions you describe directly in the hands of the parties to the dispute. That seems to be a preference for ancaps. Yet you defer to firm X and firm Y to decide what they should or not do for Thad. Isn’t that a bit ironic?

praxeologist October 25, 2010 at 7:20 pm

I wasn’t responding to anything about “administrative efficiency”, and that would be one of the weakest arguments possible for state run courts. Bruce Benson’s The Enterprise of Law is in the Mises store but unfortunately not online. If you want a good picture of bureaucratic inefficiency, I’d check that out.

There’s a strong economic impetus for various security and justice providers to reach preexisting agreements on anything from coordinated patrols to chains of arbitration in disputes between subscribers. This doesn’t mean that justice can’t be carried out without agreement between both parties though. An uncooperative criminal will be ultimately faced with the costs of adjudication.

Fallon October 25, 2010 at 9:16 pm

“administrative efficiency” via government procedures and structures? Without recourse to a price system and economic calculation the concept of efficiency is not even applicable.

Wildberry October 26, 2010 at 8:47 am

Whereas you my be steeped in Rothbardian thought, there’s a whole world out there you seem to know little about.

Admisinstraive efficiency is a legal concept in the justice system that attempts to trade off where to draw the lines of limitations on the pursuit of justice with an individuals right to seek it in the courts. For example, you cannot contineu to apeal endlessly. Otherwise, our courts would continue to fill up with appeals and never get to new cases. That is the concept.
“perfect justice” is a trade off with “administrative efficiency”. There is a reasonable balance there.

Fallon October 26, 2010 at 10:45 am

Again, my statement applies. It is you that should try to think a little holistically. Besides, I was building on Mises more than Rothbard. Have you actually read any Mises?

Wildberry October 26, 2010 at 1:46 pm

Fallon,
This is not a big point worth a lot of time, but just for the record, yes.

Have you read his little book “Bureaucracy”? There he grants complete legitimacy to organizations which do not operate according to the profit motive. A bureaucrat operates according to the rules and regulations imposed upon him. At least in theory, the courts operate under the rules of constitutional limitations. Civil procedure, which are the rules of conduct for those both seeking adjudication adn those administering it, exist within that established framework.

My general point is, though there are ample opportunity for improvements, the entire systems has evolved in contemplation of many of these issue. Before you throw out the baby with the bathwater, take a moment to understand what it is that we actually have.

Fallon October 27, 2010 at 3:16 am

Though what ‘we have’ are new ideas that may help shape a better future. And all decisions are made with the future in mind too. That is why I said ‘building on’ Mises. In no way do I advocate throwing the baby out with the bath water. Let’s give that baby some clean water, soap and attention….

Unless its a demon baby, so to speak.

Here is Laurent Carnis expanding the calculation problem’s application to bureaucracy a little further: http://mises.org/journals/qjae/pdf/qjae13_2_3.pdf

cheers

Wildberry October 27, 2010 at 1:11 pm

Thanks, I’ll check it out.

Gil October 25, 2010 at 9:32 pm

If the thief is part of a criminal gang and you think he’s going to play nice? Reuven the thief didn’t respect the concept of private property so why would he and his gang “play nice”?

Fallon October 25, 2010 at 10:19 pm

This is exactly the kind of problem that free market law is better equipped to manage from a (praxeo) logical standpoint.

Gil October 27, 2010 at 12:09 am

As in . . . ?

P.S. That should have read “Reuven had it right: the thief didn’t respect the concept of private property so why would he and his gang ‘play nice’?” I didn’t mean Reuven is a thief. X(P

Reuven October 27, 2010 at 8:53 am

@praxeologis
You wrote:
“On top of that, firm Y has to worry about not only firm X, but also firms A, B, C, etc. banding together and treating firm Y as a “rogue PDA”. This is really a perfect example of consumer sovereignty.”

What gets papered over and ignored in this argument is that nothing less than force and coercion can determine which “consumer” is “sovereign” in a conflict between which version of “justice” is to be imposed on the accuser/accused. Gang warfare. To quote AR, “when force is the standard, the murderer will always win over the pickpocket.”

The premise behind any anarcho theory will necessarily rely on the use of force as the sole determining standard of “justice” and you will end up with exactly the opposite type of society that was intended, barbarism instead of civilization.

Reuven October 27, 2010 at 2:44 pm

@praxeologis

I read the piece, its not very convincing. The assumption remains that people accept this thing called “ground norms” but a criminal is by definition someone who does not accept ground norms so the only *effective* response company zyz or citizen 123 could have towards such a person is to utilize force that is GREATER than the force that was employed in the deviation. In other words, force must be met with more force or it will not overcome, not be “effective” towards achieving the desired end. This will compel everyone and every company to carry the largest arsenal or be part of the strongest gang or largest company etc. etc. Its just tribalism all over again, you have solved nothing but lost everything.

Sturnella October 26, 2010 at 1:19 pm

I’m no expert on any of this stuff–I had to look up what praxeology was! But something occurs to me that’s not addressed here (maybe because its not relevant? I’m not sure)… Person y doesn’t want to go to court. So person x hires company X, meaning he/she pays company X some sum of money to go get the darn laptop back and give y a good licking so he/she doesn’t do it again. But x is only going to pay company X up to the amount of the laptop–after that it makes more sense to just go buy a new laptop. Person y likewise has to pay Company Y in order to protect him/herself from Company X. But person y is going to have to pay more than person x because to make it worthwhile because y needs more protection (i.e. his/herself plus the laptop plus a guaranteed win or it won’t have been worth it to take the laptop in the first place). Likely person y realized, before he/she ever stole the laptop, that having to pay for protection afterward was a possibility if he/she was caught. Knowing this, if I were person Y and had the choice between going to court and either a) not being convicted and saving my money or b) being convicted and having to return the laptop plus some cash for court costs, I’d choose to go to court. Especially if I got to pick the judge from a list–I’d pick the cheapest judge. It would likely be cheaper than hiring company Y and there’s a chance of it not costing a dime. Point being: I’m not sure gang warfare is the inevitable outcome of such a system. I see other problems arising here, however: As a judge it might be favorable for me to always vote in favor of the plaintiff. I’d get hired by all his/her buddies down the road who would see me as likely to vote in their favor too. And the chances of a thief ever needing to hire me are slim so I wouldn’t be losing out on much money from new clients there. Since all judges would be inclined the same way, the thieves would have no choice but to pick from a list of plaintiff-loving judges. Am I missing something?

Zorg October 29, 2010 at 12:36 pm

“Hiring out a bunch of police or repo men from company X to go and reclaim ones property will just be met with an equal number of police and “self-defense” experts from company Y. What happens next? Gang warfare.”

But if that were true, then what are you saying with the following?

“It is obvious that a free peaceful society cannot exist without law and order imposed by an entity endowed with a legal monopoly on the use of force.”

You’re still sending a gang. Why is there no counter-gang to defend
the criminal’s stash? Oftentimes, there is. Criminals do have gangs
and they often violently resist arrest. While this results in a fight,
it doesn’t lead to the end of civilization. Is it because society in general
recognizes the difference between criminals and those who fight them?

If human beings are just always violent animals, then why isn’t every
police station and prison and legislature continually bombed and
assaulted by the myriads of gangs that the billions of violent humans
may form at any time? Could it be that you are exaggerating?

And what are you saying of the monopoly gang? They already won the gang
warfare? So then there was an earlier gang warfare? And that was because
there was a lack of a superior gang to crush all other gangs? What
stops a new gang from fighting your gang? Ever hear of war, revolution,
civil disobedience, resistance?

All you’re saying is that “civilization” reduces to gang warfare, and that you
prefer it when one gang has out-ganged all other gangs, and that this
is why gangs are superior to voluntary institutions.

These arguments are ridiculously lame and irrelevant. It’s just the hobbesian
myth given the status of an axiom. But if that myth were true, civilization
could not exist because people, being the irrational violent animals they
are, would continually fight to the death for every conceivable reason
because there is no benefit to peaceful cooperative relations. Is that what
happens? No. So the whole premise is wrong, and therefore completely useless.

Juraj October 30, 2010 at 5:43 pm

Excellent reply! Well done Zorg.

Wildberry October 25, 2010 at 3:45 pm

“Thad in his absence, and if the judge agreed with me, then the community would have little sympathy for Thad if I went with professional repo men to retrieve my laptop from Thad’s house.”

Beyond the issue of what attributes these “repo men” might have in relation to Mafioso hit men, there is another fundamental assumption in your scenario, namely that the measure of “fairness”, i.e. “justice” is whether or not the community would have “little sympathy” for Thad. Do you really think that your little laptop case is going to be subject to any meaningful process of community review? Your assumption implies that you are justified in your actions of violating Thad’s rights because the “community” is on your side. How do you propose to establish this consensus, since presumably Thad’s soul-mates-in-crime would also be represented in this “community”. Would you put it to a vote? Ancaps don’t seem to believe in democracy, because of the tyranny of the majority problem. Yet your justification depends upon just such a concept.
“I think it is a mistake for anarchocapitalist theorists to try to centrally plan the structure of an entire legal code. Just as we can’t really predict how a free market in education or the media would turn out, we also can’t predict what a free market in judicial rulings would look like.”

I think it is a mistake for anarchocapitalist theorists to presume that they can re-invent the products of centuries of social evolution from the ground up. But that doesn’t stop them from trying. And in this effort to “show us the way it could be”, such little credit is given to any of the positive aspects of those developments, and surely just based on random luck there must be some. The “ancap alternatives” are compared to only the most negative aspects of what we have inherited, and held up as if to say something as complex as our legal system is only as good as the worst example of where it is also bad.

Whereas I bow you Robert Murphy on so many things he writes about, it is clear that these examples are drawn without the slightest credit being given to the way our legal system has come to resolve these issues over centuries of trial and error. In addition to the laws that have become “laws” because they hold up as a workable approach to resolving those types of human dispute that arise over and over again, with the wisdom of evolution the legal system did not arrive at a set of laws and procedures that are so rigid as to make individual trials unnecessary. In fact, the specific facts of a given case, as you superficially allow in your examples, is replete with factors that cannot be decided in advance, but depend upon a careful hearing of the specific facts of the case.

While this is an interesting idea, that private enterprise can completely replace every function of the State, (or government spelled with a small “s”), to make your examples even a reasonable representation of a realistic alternative view, you would do well to at least recognize that not every single aspect of our common law system is just another “coercion of the State”, and therefore by definition should be abolished. It just isn’t that simple. The failure to compare ancap alternatives to the best aspects of current legal system is a disservice to both concepts, and serves no purpose other than to make anarchocapitalist theorists look shallow, unrealistic and uninformed.

Ryan October 25, 2010 at 6:17 pm

Bob Murphy writes:

“But what if Thad didn’t agree to any of the judges on my list? Suppose he recommended instead that we use his brother-in-law, who was actually a car mechanic but, according to Thad, “is a really stand-up guy”? Obviously every reasonable person in the community would see that Thad almost certainly was a thief, and that I was telling the truth. If I went to a reputable judge and presented my case against Thad in his absence, and if the judge agreed with me, then the community would have little sympathy for Thad if I went with professional repo men to retrieve my laptop from Thad’s house.”

I can’t believe he just glossed over this part. He sure does make it sound appealing, doesn’t he? When in fact he’s describing the process of hiring goons and stealing his laptop back from Thad.

Let’s assume we, objective observers, had no idea whose laptop it was. Let’s assume Bob presented Thad with a list of 10 professional judges whose credibility Thad had reason to doubt. Let’s assume Thad was the only person of African descent in the community. Now what?

It’s easy to construct a hypothetical scenario in which one is forced to agree with the proposed anarchist solution — but there are so many other hypothetical scenarios in which this can’t work.

Matthew Swaringen October 26, 2010 at 5:09 pm

Yeah because state judges can’t be biased or practice discrimination. They’ve got every incentive to do the right thing since … why was that exactly?

Ryan October 26, 2010 at 7:54 pm

All the same, wouldn’t you rather “vote the bum out” than go hire a posse of goons and shoot it out with Thad?

Matthew Swaringen October 29, 2010 at 10:38 pm

I think the choice posed is a false dichotomy. As I’ve said elsewhere (and others have posited the same, it’s hardly originally my idea) I think this would probably be handled by quasi-insurance companies so you would pay for that service which would reimburse you for stolen items, and they would take on theft prevention, arbitration, and/or possible recovery in order to remain profitable.

It’s also worth mentioning that without “security” subsidized by the government you’ll probably find that many more electronic devices start having built in security features that make them effectively useless if stolen. This is already possible.

I have to stress the example of the not-so-wild west here. Historically non-governmental methods of enforcement have worked. It’s not like people have never solved these problems before. I work for a company that handles arbitrations between dealers who purchase/sell vehicles on the internet. It is very rare that they go to law enforcement or the courts for problems in those deals, even though some of them involve thousands of dollars of exchange.

Justin J. October 25, 2010 at 7:06 pm

I also have an objection even though I am generally sympathetic.

If it’s true that a free market in security and justice is better, more economicaly, more just etc., then how come it keeps getting out-competed by states?

You might say, because the state brings aggressive violence to bear.

But then doesn’t that refute the proposition that the anarcho-capitalist is contending for?

praxeologist October 25, 2010 at 7:39 pm

You might like this paper by Stringham and Hummel. Also, consider this by John Kennedy.

Anarchy as we envision it is really quite a new philosophy. There’s a long history of fairly similar customary legal practices to draw upon, along with insights from the Austrian School. I’d say that you ought to give it some time and not worry too much. The notion that the sun revolved around Earth didn’t die out overnight =)

Allen Weingarten October 25, 2010 at 7:34 pm

Perhaps I didn’t read carefully, or missed the obvious, but what if someone said “I don’t want to submit to your system of laws”? Or what if after agreeing to the rules, one declined to abide by them, but instead swung his group to take up arms?

Gil October 25, 2010 at 9:54 pm

Indeed. That’s one area missed by the article: whose laws? If society is totally private then there are no public law codes and if people are supposed to agree to a private trial what if the accused choose a law code of his religion? In other words, what if a Muslim wants to be held up to Sharia law by a Muslim judge not because it is his religion so much as his behaviour is permissible under Sharia law but a criminal act in other peoples’ eyes? Or a Jew chooses the Law of Moses? After all, Deuteronomy 21:18-21 tells how parents can take an unruly son to the public square to be stoned to death. Since the community abides by this law code this action is therefore permissible. And if other onlookers find this offensive and it violates their religion or personal law code then what?

kyoki October 25, 2010 at 11:19 pm

The ‘justice’ would be done by force.
In any system there has to be force involved somewhere and the case/issue/dispute decided upon by peers of some sort.
I believe what he’s trying to say is the ability of the free market to advance the ‘best’ enforcer,judge etc to a stronger position over other lower quality ones (and hence drive the up quality in all of them) would provide a better system for judicial proceedings and enforcement/policing.
The ‘best’ of course would depend on the individuals opinion but if the majority of americans unanimously elect to go along with the State & accept the sacrifice of much of their liberty in order to recieve the level of justice provided today then surely the majority would elect a superior one through the free market while gaining liberty.
It doesn’t make sense that they’d put up with so much from the state for the freedoms we have now if the peoples real desire (which is what the market would produce) is for warlord like & evil enforcement companies.
I don’t believe such groups could become stronger or even have the time to, in such a complex economic structure as is present in the US.

Dmitry Chernikov October 25, 2010 at 10:01 pm

Murphy: “the judges — who gave expert guidance on what the law says on a matter — are distinct from the people enforcing the law”

It’s really great to see someone else distinguish the privatizability of the three branches of government; or at least holding that the branches are different enough to require different approaches to privatizing them.

kyoki October 25, 2010 at 10:59 pm

I’m not sold on ancap but it seems to me alot of people are misreading the position. Some of the responses sound like a rebuttal to ancap providing heaven on earth. Ancap proponents are saying its the best principle for a legal system to be based on and can not be worse than any system based upon a ‘State’ monopoly. Neither that there would be advantages in every possible scenario, only that the system as a whole would equal a drastic improvement.

Ryan October 26, 2010 at 7:57 am

Assuming everyone cooperates, I agree with you. What so completely up-ends anarchy is the fact that as soon as one person decides to undermine the arrangement, everyone must organize themselves into a pseudo-state in order to deal with that person. I don’t understand why “anarcho-capitalists” can’t see that for what it is.

As above, when Murphy describes hiring goons to take his laptop back – if this isn’t pseudo-state behavior, what is? Only in this case, it’s worse, because if the laptop’s ownership were genuinely in dispute (i.e. as a matter of contract), then Thad would hire his own goons and the two of them would have to fight it out to come to any sort of agreement. This is wholly unreasonable.

Matthew Swaringen October 26, 2010 at 5:10 pm

It’s not “pseudo state” behavior. You are understanding anarcho capitalism as being anarcho pacifism and it’s not.

It’s not that there are no agencies that use force, it’s that there is no monopoly. That’s perhaps a small distinction to you, but not so much for many here.

Ryan October 26, 2010 at 7:52 pm

Where is the “monopoly of force?” There are over 200 governments out there. Plenty of competition.

There is no appreciable difference between a society and a so-called “anarcho-capitalist” society. Once the ball gets rolling, “anarcho-capitalism” looks exactly like traditional statism. That’s the whole problem with the idea. By generation two, everything is exactly as it is now, and we’re back to trying to limit the powers of an existing government.

Jordan Viray October 26, 2010 at 11:12 pm

“Where is the “monopoly of force?” There are over 200 governments out there. Plenty of competition.”

Weak. So, are the people who live in California allowed to pick one of the over 200 governments out there instead of the American one? No.

King George October 26, 2010 at 11:53 pm

And if the owners of the 200 territories were private owners rather than governments, you wouldn’t care about the situation in that case?

Gil October 27, 2010 at 12:05 am

You mean choose as in “without having to move out of the country”?

Jordan Viray October 27, 2010 at 2:44 am

“And if the owners of the 200 territories were private owners rather than governments, you wouldn’t care about the situation in that case?”

Yeah, that’s a reasonable scenario.

“You mean choose as in “without having to move out of the country”?”

I mean choose in the same way we choose services in a free market, i.e., without legal monopolies. But go on thinking state-run enterprises are superior because an individual can “choose” between them by moving.

Ryan October 27, 2010 at 6:33 am

You have to imagine anarchy as what it would be rather than what you would want it to be. States wage war over disagreements. Murphy hires goons and knocks on Thad’s door when he can’t get his laptop back. If you’re under the illusion that these two circumstances are fundamentally different, then you’re not considering all the ramifications of “anarcho-capitalism.”

It is entirely possible that a world of anarchy would consist of a bunch of voluntary societies that ALL do things in ways that you DON’T prefer. Not only is it possible, but considering that the 200+ countries in the world today ALL do things other than how you would prefer them to, it is incredibly likely that you wouldn’t find what you’re looking for in an anarchist society, either.

Then what you do? You’d have all the “choice” in government possible, and still nothing that you’d be comfortable with. That’s problematic.

Matthew Swaringen October 27, 2010 at 6:49 am

“You have to imagine anarchy as what it would be rather than what you would want it to be. States wage war over disagreements. Murphy hires goons and knocks on Thad’s door when he can’t get his laptop back.”

Murphy hires goons isn’t the most likely outcome. Murphy has insurance against theft and gets paid is more likely. If the insurance company is aware of the risk it pays a private security service which would be responsible to determine who stole the laptop after the fact to prevent future theft from other customers.

Now, the thief could hire security to fend off the insurance company, but how many security services would want the reputation of defending thieves? You want us to imagine bad possibilities, but you can’t even explain why we should.

“It is entirely possible that a world of anarchy would consist of a bunch of voluntary societies that ALL do things in ways that you DON’T prefer. Not only is it possible, but considering that the 200+ countries in the world today ALL do things other than how you would prefer them to, it is incredibly likely that you wouldn’t find what you’re looking for in an anarchist society, either.”

So if there are 100k voluntary societies, you aren’t considerably more likely to find agreement than among 200? Additionally these 100k voluntary societies are all rather small, and incapable of asserting as much force as a modern military under a nation state?

I’m hardly seeing this as having a worse outcome. You keep imagining we are utopians or something I think. No one thinks he’ll get exactly what he wants 100% of the time.

“Then what you do? You’d have all the “choice” in government possible, and still nothing that you’d be comfortable with. That’s problematic.”

If you have property or can find some free land perhaps you settle down elsewhere and start your own voluntary community as well. At least you are significantly more likely to have that choice than you do now.

Ryan October 27, 2010 at 12:58 pm

Matthew Swaringen -

The more I consider this, the more convinced I become that “anarcho-capitalists” always envision a positive situation when considering anarchy and a negative situation when considering non-anarchy. For my money, that’s just not realistic.

“Murphy has insurance theft is more likely” is actually pure conjecture. Since there is no anarchist society on Earth right now, you have no idea what the most likely outcome is. I don’t either, but what I’m saying is that you won’t win any converts by dodging legitimate objections with back-pocket free-market solutions that may or may not end up actually existing in real life, were anarchy ever attempted, God forbid.

The more I think about it, the more I realize what a terrible mistake anarchy would be. This comes as a surprise to me, since I am a huge fan of the LvMI. I expected that I would eventually be drawn toward anarchy. Instead, I find myself increasingly repelled by it. I will spend some more time considering the issue and refuting it on my blog.

Russ the Apostate October 27, 2010 at 1:11 pm

Ryan wrote:
““Murphy has insurance theft is more likely” is actually pure conjecture.”

And what if Murphy doesn’t have insurance? Does he then forego all rights to his laptop? That certainly wouldn’t be right.

And I think you’re right in calling the activities of imagined ancap PDAs “pseudo-State” behavior; they would be filling the function that States fill now, so why is that description so wrong? Ayn Rand even called ancap a system of “competing governments”, and she wasn’t so wrong. And Nozick thought that the PDAs in ancap would eventually lead to one PDA taking over the whole market, i.e. a real State.

“This comes as a surprise to me, since I am a huge fan of the LvMI. I expected that I would eventually be drawn toward anarchy. Instead, I find myself increasingly repelled by it.”

So was Mises himself. Nor was Hayek an anarchist. You don’t have to be an anarcho-capitalist to be an Austrian. And you don’t have to be either to be a libertarian.

Jordan Viray October 27, 2010 at 2:01 pm

“You have to imagine anarchy as what it would be rather than what you would want it to be. States wage war over disagreements. Murphy hires goons and knocks on Thad’s door when he can’t get his laptop back.”

And what do you think happens when you get the State police to get your laptop back for you? If people are going to be using force then they should not abstract themselves for it by hiding behind the regulations of the State.

Hiring goons and engaging in violence is for just about everyone, a last resort option. But would you personally bust someone’s door down because of marijuana? Would you personally pay for and participate in an invasion Iraq because of supposed Weapons of Mass Destruction?

Doubtful. Yet this idea that the government has monopoly over force and over the law makes it easier to justify violence in cases where you yourself would not have used violence.

“If you’re under the illusion that these two circumstances are fundamentally different, then you’re not considering all the ramifications of “anarcho-capitalism.””

They are fundamentally different in that I choose when violence is appropriate in anarchy. In a state, at best I can try to play the majoritarian game and try to squash the opposing choice of a hoped-for minority. Both anarchy and democracy claim to express freedom but I’ll let you figure out which one really does.

“It is entirely possible that a world of anarchy would consist of a bunch of voluntary societies that ALL do things in ways that you DON’T prefer. Not only is it possible, but considering that the 200+ countries in the world today ALL do things other than how you would prefer them to, it is incredibly likely that you wouldn’t find what you’re looking for in an anarchist society, either.”

Nope. Increased competition and choice means that I would almost certainly find something better than what we have now.

“Then what you do? You’d have all the “choice” in government possible, and still nothing that you’d be comfortable with. That’s problematic.”"

There’s no car I’m completely happy with but I do know I’m better off with the option to choose versus being forced to buy a Lada or a Zil. At least if I were disappointed enough, I could have a go at building a car myself – something not possible if the State has a monopoly on that industry.

Zorg October 29, 2010 at 3:03 am

“Where is the “monopoly of force?” There are over 200 governments out there. Plenty of competition.”

Monopoly of force refers to the respective territories. Every state
is a monopoly provider of certain “services” within its conquered
territory which it “provides” to its captive subjects through theft
and coercion.

“There is no appreciable difference between a society and a so-called ‘anarcho-capitalist’ society.”

Uhhhhhhhh.

“looks exactly like traditional statism.”

It’s the opposite of statism.

“By generation two, everything is exactly as it is now, and we’re back to trying to limit the powers of an existing government.”

Yes, when free societies fail, they fall to gangs. And yes, as time goes
by, things change. Just look at a map of the world at any given time.
The lines are constantly changing. States rise and fall. They invade each
other or “unite”. They merge. They devolve. They split. They destroy
each other. They grow powerful, then weak. They are weak, then become
powerful. So?

If you’re “back to trying to limit gov’t,” then it means you failed to preserve
liberty. So go back to the drawing board. Or else – and this is what I hear
people saying – just give in and give up. Love tyranny. Accept thuggery.
Freedom is an illusion. Your gov’t loves you. Now shut up and obey.

No thanks.

kyoki October 26, 2010 at 10:24 pm

I’m don’t read it that way. There’s no need for co-operation in the same way there’s no need for co-operation in order for justice in purchasing goods from a store. A bad store will disappear as people custom its competitors, assuming it changed its policies as it wouldn’t get off the ground if it started badly. The only co-operation is everyone or most using good sense in watching out for themselves(in the sense of spending their money or participation with the most honest & just agency).

You’re argument is somewhat circular as its assuming his position is wrong to disprove it ie 1)there would be goons in business that would take that type of case 2) they’d be successful/strong enough in a position to take on the other. When he’s arguing that ancap would provide an enviroment opposite to that.

The point in question is how successful ancap would be using a pure marketplace to provide ‘just’ enforcement etc and would it tend towards an increasing level of justice from these private agents.

Dick Fox October 26, 2010 at 7:41 am

What we need to do is break away from the pontificating and look a real world examples. Human action does not support anarchy. Anarchy always devolves into the law of the jungle where the strongest rule. It is only when individuals cooperate to ensure freedom and liberty that there is any real justice in the law. Otherwise the thugs always rule. I would suggest you study the history of Sicily and how the familys acquired rule.

Zorg October 29, 2010 at 2:35 am

“Anarchy always devolves into the law of the jungle where the strongest rule.”

True, in the sense that free societies are typically overrun by criminal gangs.
The state is precisely the institution of violence where “the strongest rule”.
Yes, anarchy tends to devolve to statehood. Statehood is the end result of
gang warfare where one gang emerges stronger than the others and thereby
rules by force. All states are founded upon violence and perpetuate themselves
through violence. The violent rule the world. The non-violent stand by, wave
flags, and mutter something about death and taxes.

The state is basically a bad anarchy. The good, peaceful people got outwitted
by the thugs. But it can go in the other direction too though since the thugs
are always fewer in number and they only acquire power when we fail to
resist them properly. This does not mean that we *must* fail, as if it were
some sort of rule. Tyrants still rely upon our consent and acquiescence. It need
not be so.

“Otherwise the thugs always rule.”

Thugs like Bush and Obama? Pelosi and Reid? Or Guido and Vito as in your
Sicily example? What’s the difference? The mob operations in a country like
the US far exceed any kind of Sicilian mafia example. Does the Sicilian mob
have a money machine where they print trillions of dollars? Do they have
the biggest baddest military on earth? How many countries do they control?

Come on, people. Wake the hell up. You all keep talking about gangs and
thugs as if the state were something *other* than gangs and thugs! This is
too easy.

james b. longacre October 29, 2010 at 3:42 am

i expect many armed men take orders from one unarmed man.

Fallon October 29, 2010 at 4:05 am

how did he lose his arms? accident at the mill?

Jordan Viray October 26, 2010 at 5:05 pm

“Anarchy always devolves into the law of the jungle where the strongest rule. It is only when individuals cooperate to ensure freedom and liberty that there is any real justice in the law. ”

You imply that individuals could not cooperate to ensure each others’ freedom and liberty in anarchic society. But it is precisely the freedom in anarchic society that would allow such cooperation to work best without the fiction of a State monopoly on law and justice.

King George October 26, 2010 at 11:56 pm

Except, there have been hundreds of opportunities without the “fiction” of the state monopoly, and it hasn’t happened yet. States have outcompeted anarchic areas of the world everytime. I think it’s going to take a little more than just “freedom”, and anarchic society is obviously otherwise unstable or vulnerable to predation without that missing ingredient, and thus not a self-stabilizing system.

Jordan Viray October 27, 2010 at 3:03 am

Yes, and fiat money and fractional reserve banking outcompetes the alternatives. Your point?

Making an argument on the basis of “what happens to be the current flavor of the day must be right” has an analogue in economics – the failed Efficient Market Hypothesis. It’s very convenient to dismiss things which are only now a potential possibility as an impossibility – yet you and other statists cannot, unlike Mises regarding calculation in a socialist economy, prove from basic principles your contention.

King George October 27, 2010 at 4:29 pm

The desire for a government isn’t the “flavor of the day”; it is what humans have chosen *every single time*. Even your beloved Iceland grew fond for a King. It doesn’t matter if anarchy is more efficient on paper. If people have the choice to win $10,000 every time or $10,000,000 1/1000th of the time, many people will go for the former, even though the expected value is identical. Likewise, people desire stability and security, hence why Somalia is no tourist haven.

Jordan Viray October 27, 2010 at 9:02 pm

“The desire for a government isn’t the “flavor of the day”; it is what humans have chosen *every single time*.”

Yup, by your logic, the Russians chose government mandated gulags and German Jews chose government mandated concentration camps.

“It doesn’t matter if anarchy is more efficient on paper.”

Of course it does. If the theory is sound, which it is, then that provides a solid base for action.

“If people have the choice to win $10,000 every time or $10,000,000 1/1000th of the time, many people will go for the former, even though the expected value is identical.”

Too bad statistical analysis has no place in economic reasoning. Praxeology > statistics.

Zorg October 29, 2010 at 2:12 am

“States have outcompeted anarchic areas of the world everytime.”

How do states “compete”? All you’re saying is that up till now, it is
mostly violent gangs that have prevailed over civil society. That is
hardly an argument for the gang warfare of statism.

“anarchic society is obviously otherwise unstable or vulnerable to predation”

From gangs. IOW, states. Yes, humans are always vulnerable to predation,
and that’s why we should teach people to respect the rights of others
and advocate social relations which support and defend individual rights
against predators. We should not side with the predators because they’ve
seemed up till now to “win” more often than the good guys. What are they
winning exactly?

james b. longacre October 29, 2010 at 3:45 am

States have outcompeted anarchic areas of the world everytime.

how long has the state been in existence compared to non-state functionings?? tribe with elder, non specific boundaries of territory, nomads for thousands of years…the state may just be a blip.
i dont see any competition…just lies .

Reuven October 27, 2010 at 11:38 am

@ Jordan Viray

A “free” society is one where coercion between men is absent. Even if one made the very unlikely presumption that criminal behavior remained marginal over time, an anarcho society could not possibly enforce any long range contract without resorting to some form of force. If it can’t do that then no long range cooperation is possible and every potential disagreement is a potential for violence. Uncertainty is inherent in any contract and disagreements between men as to which causes lead to which outcomes are unavoidable so it necessary that some objective means be employed to resolve the dispute whereby both parties are subject to a final decision that neither of them can *choose* to avoid. The only means to remove choice is to introduce force, there is simply no other way. It is like a law of physics, no amount of argument will change that matter of fact. Without that mechanism there is absolutely no way to avoid feuds, vendettas and all out gang warfare. One can pontificate all day about various complex and competing voluntary “societies” but without the means for those “societies” to resolve honest disagreements between each other the only result will be gang warfare.

Why don’t we just expand the idea of a “voluntary society” to apply to each individual man as an individual so we have 360+ million “voluntary societies” comprising individuals and have them all “agree” to binding arbitration from a central authority, backed up by force, with a mechanism to decide how the central authority should decide? Or, we can just simply call that a constitutional republic based on individual rights and the rule of law with a separation of church from state and of state from economics and call it a day?

Wildberry October 27, 2010 at 2:26 pm

I’m ready to call that a day. Well said.

Jordan Viray October 27, 2010 at 2:28 pm

“an anarcho society could not possibly enforce any long range contract without resorting to some form of force.”

If force were eschewed, then an alternative would be to get a ruling as per the process described in this article. People thinking about doing business would check the contract-breakers reputation and see a number of private market legal rulings against them and elect not to do business with them. There will always be scammers and hucksters out there who operate even under our alphabet soup of regulatory agencies.

We already have some good private sector groups which help consumers find out the reputation of a company they are looking to deal with: the Better Business Bureau, Resellerratings and even Yelp.

So the premise that force is absolutely needed is false and so your conclusions relying on that premises are similarly questionable.

“Why don’t we just expand the idea of a “voluntary society” to apply to each individual man as an individual so we have 360+ million “voluntary societies” comprising individuals and have them all “agree” to binding arbitration from a central authority, backed up by force, with a mechanism to decide how the central authority should decide? Or, we can just simply call that a constitutional republic based on individual rights and the rule of law with a separation of church from state and of state from economics and call it a day?”

Of course you need these individuals to agree to your scheme. I, along with several others, would not particularly since you cannot separate the State from economics. Last I heard, these United States were still collecting taxes to pay for activities millions of its subjects explicitly do not desire.

Reuven October 27, 2010 at 3:17 pm

Jordan,

What about the “non-force” contract breakers? What if we disagree on who broke what, when and the value of the loss? Who decides who “broke” a contract? My company or yours? Why should I agree to abide by your company when you don’t agree to abide by mine? No resolution is possible because no enforceable contract ever actually existed or can exist under such a system. At any time and for any reason anyone could unilaterally walk away from any obligation and refuse to abide by or agree to any terms without any consequences whatever except for a black mark reported by some company without any evidence or proof. You could not even establish such a thing as “evidence” or a standard of “proof” using a market because those things are not determined by majority fiat or clever marketing campaigns. No one would make long term capital investments under such conditions because it is impossible to predict the future and who would want to take the risk when the rewards could be whisked away without consequence?

The fact of the matter is that you don’t need to “transform” the US into an anarcho state to live under your system. Just gather everyone with like “ground norms”, buy some compound out in the mid-west, and all “agree” to live and work anarcho. Nothing is stopping you, not if you all truly “agree” to “eschew” force and abide by your own rhetoric.

Jordan Viray October 27, 2010 at 8:56 pm

“What about the “non-force” contract breakers?”

What about them? They are easier to deal with than “force” contract breakers.

“What if we disagree on who broke what, when and the value of the loss?”

A mutually decided third party arbitrator will settle the issue. Both parties could negotiate what arbitrators they would be willing to submit to beforehand.

“Who decides who “broke” a contract? My company or yours? Why should I agree to abide by your company when you don’t agree to abide by mine? No resolution is possible because no enforceable contract ever actually existed or can exist under such a system.”

Nope. See above.

“At any time and for any reason anyone could unilaterally walk away from any obligation and refuse to abide by or agree to any terms without any consequences whatever except for a black mark reported by some company without any evidence or proof.”

Sure, people walk away from their obligations now as we’ve seen underwater homeowners do over the recent period. That hit to their credit rating is most emphatically not without any consequences whatever except for a black mark reported by the credit agencies (Transunion etc).

“You could not even establish such a thing as “evidence” or a standard of “proof” using a market because those things are not determined by majority fiat or clever marketing campaigns.”

You suggest that “majority fiat” and “clever marketing campaigns” are what make up the market? If that is so, then it is more so for politics. And if those things are impediments to free-market establishment of evidence of standard of “proof”, all the more so is this the case in our current system.

” No one would make long term capital investments under such conditions because it is impossible to predict the future and who would want to take the risk when the rewards could be whisked away without consequence?”

The fact that it is impossible to predict the future and the fact that risk exists has not stopped, well, pretty much every single business from making long term capital investments.

“The fact of the matter is that you don’t need to “transform” the US into an anarcho state to live under your system.”

Actually, the fact of the matter is that the United States government claims monopoly on law and use of force where I live. My “system” would recognize no monopolies and so is not possible without an anarchic state.

“Just gather everyone with like “ground norms”, buy some compound out in the mid-west, and all “agree” to live and work anarcho. Nothing is stopping you, not if you all truly “agree” to “eschew” force and abide by your own rhetoric.”

Anyway since you are “randomly” using “quotation marks” I figure I “might” as “well” too.

Actually, the government claims and is more “than” willing to use force against “anyone” who settles in the US and rejects the government’s claim on monopoly of law and force. Try again.

Reuven October 28, 2010 at 9:28 am

@Jordan

“A mutually decided third party arbitrator will settle the issue. Both parties could negotiate what arbitrators they would be willing to submit to beforehand.”

And why would anyone be inclined to agree to an adverse outcome, especially if they honestly believe they were in the right? They would simply walk away and find or found another agency willing to write positive endorsements. Meanwhile, the original investors are not made whole and the injustice remains. It’s obvious that no one would invest or cooperate long range under those conditions.

A contract can only function as a “contract” if its clauses cannot be unilaterally ignored without consequences. That is its purpose and its function, that is what makes it “work” i.e. it allows people to cooperate long range through time and space. A contract that cannot be enforced is not a contract it is a non-binding agreement constantly open to alteration and change (i.e. RISK), including any prior “agreement” as to how to settle “disagreements” and therefore it could not facilitate any form of long range plan or cooperation no matter how many non binding “judgments” were issued on it.

The whole point of entering into a contract is to control the risk associated unknown factors over time, including the risk factor associated with the sometimes unpredictable actions of actual human. An anarcho state that does not enforce contracts does not control those risks so it is very unlikely that those risks will ever be taken, at least not by any rational human. The most you could hope for would be to live in an agrarian level of production where each person lives on a self sustaining farm with a barter system and a private army. No one would take the risk of accumulating capital if it could be appropriated by unilateral actions without consequences. If you can’t see that then you understand nothing about economics or human nature.

Jordan Viray October 28, 2010 at 6:08 pm

And why would anyone be inclined to agree to an adverse outcome, especially if they honestly believe they were in the right?

If the alternative is no contract, the risk of a negative outcome – especially if mediated by someone of your (and their) choosing – can be worthwhile. If this were impossible, then refereed games could not exist. But they do.

They would simply walk away and find or found another agency willing to write positive endorsements. Meanwhile, the original investors are not made whole and the injustice remains.

They could walk away and suffer the consequences to their reputation – although as you note, they have perpetrated an injustice to the original investors. Of course both parties could buy insurance if they felt it necessary.

It’s obvious that no one would invest or cooperate long range under those conditions.

It isn’t obvious at all. In fact, you assertion is likely to be false.

A contract can only function as a “contract” if its clauses cannot be unilaterally ignored without consequences. That is its purpose and its function, that is what makes it “work” i.e. it allows people to cooperate long range through time and space. A contract that cannot be enforced is not a contract it is a non-binding agreement constantly open to alteration and change (i.e. RISK), including any prior “agreement” as to how to settle “disagreements” and therefore it could not facilitate any form of long range plan or cooperation no matter how many non binding “judgments” were issued on it.

Yes and consequences do apply as I’ve already pointed out. Those non binding judgments help eliminate the dishonest individual from competing in the future and thus, contrary to your conclusion, do facilitate long range planning and cooperation.

The whole point of entering into a contract is to control the risk associated unknown factors over time, including the risk factor associated with the sometimes unpredictable actions of actual human. An anarcho state that does not enforce contracts does not control those risks so it is very unlikely that those risks will ever be taken, at least not by any rational human.

Sure, and just as most exchanges are done without fraud, so will participants in a marketplace value that and create systems that are able to deal with fraud without employing the need for aggression. Insurance and collateral are just a couple ways.

The most you could hope for would be to live in an agrarian level of production where each person lives on a self sustaining farm with a barter system and a private army.

Unfortunately if your premises are false, then your attempt to employ reductio ad absurdam fails as well.

No one would take the risk of accumulating capital if it could be appropriated by unilateral actions without consequences. If you can’t see that then you understand nothing about economics or human nature.

Again, already addressed. Take those considerations into account and maybe you’ll see how things really work.

Zorg October 29, 2010 at 1:56 am

“A ‘free’ society is one where coercion between men is absent.”

Right. So a free society cannot exist under the state since the state
is a territorial monopoly of force.

“an anarcho society could not possibly enforce any long range contract without resorting to some form of force.”

The prohibition is against coercion – as in the initiation of force against
the innocent. There is no prohibition against enforcing contracts or dealing
forcefully with criminals. That is retaliatory force. We have a right to protect
ourselves. This isn’t about pacifism, although you could probably go a long
way with a minimum of any kind of force applied depending upon the
circumstances.

“we can just simply call that a constitutional republic based on individual rights
and the rule of law”

Yes, you can call it that, but that’s not what it is. The very first thing you
said was that “a free society is one in which coercion between men is absent.”
But then you end by having to put “voluntary society” and “agree” in quotes
as you describe a state that forces 360 million people to be subject to a central
authority “backed up by force”.

Every defense of the state is just a mass of blatant contradictions and lies, isn’t it?

Joe October 27, 2010 at 5:54 pm

@Fallon, In response to your comments above, I agree with your assessment. For the same reason that good people let the constitution be dismantled over the course of 200+ years an Ancap society could go the same way. As I see it the only difference we have is are goal not the means in which to attain our goals. I say it is much easier to educate and re-establish our constitution in the spirit in which Madison envisioned. I believe what Madison established was moral and would allow all individuals liberty and freedom. As for going directly to an Ancap society, to me it would be almost impossible. We do agree that education is the key. But beyond education we need to have due diligence to make sure that what was estabished is not diminished and turned into an all encompassing state. We always don’t do what we believe is right. I was always fascinated by the followers of Jim Jones. I could not understand why they followed him to Guana and took the koolaid. Most did, some where forced and killed. There are always people who want someone to take care of them and not take responsibility for their lives. This is what socialism is to a lot of people. How do we combat this human urge to be taken care of when we start educating the people to accept liberty?

Zorg October 29, 2010 at 1:28 am

“How do we combat this human urge to be taken care of when we start educating the people to accept liberty?”

That’s pretty simple actually. Civil society, working within the free market,
has provided and will provide all of the institutions, products, and services
people need and want.

The state fights against this through incessant regulation, taxation, control,
persecution, punishment, threats, fines, ostracism, bureaucracy, fear-mongering,
etc., etc.

The insurance model for things like “social security” would work just fine in a
free market. Your return on investment after a lifetime of paying premiums would
certainly be far greater than the corrupt gov’t system. Such mutual aid societies
and insurance companies would spring up everywhere to meet the demand.

Churches, unions, and any other kind of established group could form their own
welfare or insurance institutions. Eliminate taxes, and the money would flow
to the best ones offering the best plans. Eliminate regulation, and the free competition
would protect consumers against those dreaded “large corporations” that everyone
loves to complain about. They’d all have to compete fairly and openly. There would
be no state imposed barriers to entry or ridiculous coverage mandates that now
keep prices up and competition out.

The “socialism” of a mutual aid society is easy and harmless. No goateed revolutionaries needed! We just need to be left alone so that we can manage our own money and make
our own choices for such things. The fact that we are not allowed to opt out of
things like SS shows that the intent behind it is not benevolent. It was not
provided because of a demand that the market could not meet. It was something
thrust upon us by social planners so they could think themselves superior and
be able to control the rabble.

As for the constitution, it gives (what is “it”? I never gave any such power) congress
the “power to lay and collect taxes,” so that’s the end of my and your liberty right
there. There is no right to property spelled out, but a supposed right for some
people to take by force the fruits of the labor of others. There is no “cap” or “limit”
on this supposed power. And even if there was, history has shown that no state
ever obeys a piece of paper. They operate strictly by force. The effective limit is
merely whatever they can manage to get away with. That is why they do things
incrementally, employ deception and misdirection, and write 2000 page “laws” that
no one is even able to read, let alone comprehend.

Such despicable institutions must be rejected wholesale. They should be replaced
by voluntary ones which provide services without initiating violence against
anyone. There is no reason for free people to be subject to rulers claiming to have
“power.” That kind of power is only the institutionalization of crime.

Having said that, I agree with what Fallon here, referring to Hoppe, says about
devolution. No one wants sudden widespread collapse and chaos because as
the state has usurped civil society, it has left us bereft of the wealth and the
institutions we would have had if it had not interfered so thoroughly with
progress. We just need to be left alone long enough to begin building a free
society. They basically just need to get the hell out of the way.

I think this can only happen through secession. Secession creates momentum.
At the very least, to have 50 truly independent states to choose from instead of one over-arching monolithic federal monstrosity would be a great boon to liberty.

Jordan Viray October 29, 2010 at 3:01 am

Of course the government does not look too kindly to secession although I’m definitely with you in wanting true change toward a free society.

Maybe we can do a Groupon-style system where people can sign up to, for example, not pay taxes, when the number of potential participants hits a certain number.

http://mises.org/daily/4657

I think civil disobedience only works when you have a kind of critical mass. The occasional individual not paying taxes gets hauled off to jail but a couple hundred thousand people might be too much for the prison system to handle.

Fallon October 28, 2010 at 3:54 pm

Joe,
The arch anarcho-capitalist Prof. Hoppe would agree with you, I think, on the impracticality of an immediate move to anarchy. Hoppe recommends a devolution of political power in stages, from the current system to Swiss-like cantons, to municipalities, and then on to more individuation of polity, finally resting on individual sovereignty.

Two questions re Madison and the Constitution:
1) Does the Constitution really reflect the ideas of Madison re the containment of arbitrary rule via politically competing factionism?

2) If “yes” to #1, how do you explain the immediate arbitrary imposition of the Whiskey Tax, and later, the Alien and Sedition Acts?

Really, like Hoppe, I tend to think Madison failed because he took Hobbes for granted on one major assumption, that there must be final monopoly power. Otherwise, Madison et al. were geniuses within the limits of their presuppositions. It really comes down to, as Mises himself had cited, answering the question that the Roman poet Juvenal first stated: Quis custodiet ipsos custodes? Who will guard the guards?

Oh yes, Jim Jones. Very fascinating epoch in many ways. It shows the immense power of ideas hold over people. One could make a lowest-bar rule of thumb in analysing the human freedom factor in any system by how it deals with its members seeking exit…

Jordan Viray October 28, 2010 at 6:25 pm

“I tend to think Madison failed because he took Hobbes for granted on one major assumption, that there must be final monopoly power.”

That and the Hamiltonians had some very different ideas regarding the interpretation of the Constitution. It’s sad how even in the beginning there even existed a party advocating strong Federal power – but even the Constitution itself is a concession in that regard compared to the Articles of Confederation.

Fallon October 29, 2010 at 12:09 am

Oh right! DiLorenzo owns Hamilton.

Joe October 29, 2010 at 10:17 pm

@Jordan,
I don’t think Hamilton had a different interpretation but wanted a strong central government. Hamilton believed that if the republic was to last it needed a strong core. At the time most of the founders believed that a monarchal form of government may have been inevitable for the union. Hamilton understood this. The man a genius in his own right and one can thank him for getting Thomas Jefferson elected. When reading about the constitution convention one learns that Hamiliton pushed for a “judical review.” I know people have called him a Monarchist but that is not accurate. Even though Madison and Hamilton did not see eye to eye they had respect for each other.
“….the Hobbesian conception of sovereignty (and the legal positivism deriving from it) springs from a false rationalism that conceives of an autonomous and self-determining reason and overlooks the fact that all rational thought moves within a non-rational framework of beliefs and institutions. Constitutionalism means that all power rests on the understanding that it will be exercised according to commonly accepted principles, that the persons on whom power is conferred are selected because it is thought that they are most likely to do what is right, not in order that whatever they do should be right. It rests, in the last resort, on the understanding that power is ultimately not a physical fact but a state of opinion which makes people obey.”
F.A. Hyak
As for the Articles of Confederation. “…..the state legislators soon came as near to claiming omnipotence as the British Parliament had done. Indeed under most of the revolutionary constitutions the legislature was truly omnipotent and the executive correspondingly weak. Nearly all of these instruments conferred upon the former body practically unlimited power. In six constitutions there was nothing whatever to prevent the legislature amending the constitution by ordinary legislative process. Even where this was not so, the legislature often highhandedly disregarded the text of the constitution, and still more those unwritten rights of the citizens which these constitutions had been intended to protect. The main lesson on the period of Confederation was that the mere writing down on paper of a constitution changed little unless explicit machinery was provided to enforce it.” F.A. Hayek, The Constitution of Liberty
Why would you find it sad that there was a different opinion? You have to understand that the founders were from the old country and that being Monarchist. Do you think they they would just totally forget what they grew up under. I find it a miracle that this country did not go Monarchist. I contribute that to Madison and to Hamilton. Hamilton felt he had to have a strong central government or the newly created republic would probably slip into a Monarchy. Madison believed in the separation of power as the key.
I think it is very instructional from a historical perspective how the Confederation was turning into predatory individual colonies. I think this should also be viewed as a normal progression and doesn’t bode well for an Ancap society. Human nature is what it is. As Madison said we are not angels.

Jordan Viray October 30, 2010 at 3:13 pm

“I don’t think Hamilton had a different interpretation but wanted a strong central government. ”

You don’t think that desire would have affected his interpretation of the somewhat ambiguous Article III regarding judicial review? He did want stronger central government but with regard to Article III (at least based on my interpretation of his thinking in the some of the Federalist Papers) it would seem judicial review is natural. After all, he favored the judicial power over the legislative since the former would theoretically favor the people more than the latter. And the people, in his eyes, were the source of political legitimacy.

Joe October 29, 2010 at 9:20 pm

@Fallon,
It’s good to have a chance to discuss this with you. I say yes to #1.
The Whisky Act was not arbitrary since it was allowed under the Constitution. Hamiliton, a Federalist was Secretary of the Treasury and was a big government guy. When the issue of direct taxes and indirect taxes was discussed in the constitutional convention more attention should have been given. When the war with Britain was over there was a debt that needed to be paid. Madison wanted it to be apportioned out to the states which was to cumbersome for Hamilton and he knew he could use a indirect tax (Whiskey) to pay off the debt. For some reason Hamilton had a problem with whiskey. (See Federalist 12) Of course we know the history. Fortunately when Jefferson became president the tax was repealed. I can see at the beginning of a new constitutional republic there would be problems. This type of government the world had never seen before and none since. Of course there was opposition to Madison. Primarily Hamilton who was a genius in his own right. They new government was proceeding in uncharted territory so I would expect some problems.
The Alien and Sedition Acts were the worst. Who would have thought President Adams would totally disregard the constitution. Here is the big problem with these acts. Adams was a Federalist and the Supreme Court was made up of all Federalists that were appointed by George Washington. Now what is wrong with this picture. How’s that for concentrating power within one group. The Supreme Court should have stepped in, buth there was no judical review. Of course Madison thought they were unconsitutional. It wasn’t until 1803 with the decision of Marbury v. Madison that judical review was established. In later Supreme Court decisions it was determined that if the Alien and Sedition Acts were tried today they would be shot down as unconstitutional.
The constitutional republic in this country has lasted for over 200 years. What other government today can say the same. Our constitution has been diminished and hopefully we can reverse direction and start demolishing government down to a minimalist state that allows greater freedom and liberty. I try to assist in this whenever I speak with people about my libertarian beliefs and how much better their lives will be under a government that was the idea a great man Madison. It becomes frustrating but at least all my friends know we have a republic and not a democracy. Small step forward. If you fall on your face at least you are going forward.
Nice discussing this with you.

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