Randy Barnett is among the world’s leading libertarian academics and lawyers, perhaps second only to Richard Epstein in influence. Barnett has even defended anarcho-capitalism, which makes his most recent book most curious. His arguments that a monopoly government can be legitimate are unpersuasive; his arguments that the federal government should limit its own power are futile; and his arguments that the federal government should impose libertarianism on the states are dangerous. FULL ARTICLE
Source link: http://archive.mises.org/4377/can-judges-save-us-from-statism/
Can Judges Save Us From Statism?
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Sherman:
The state you imagine sounds good to me. No coercion, people only get the services they want to pay for, and are not forced to accept or pay for any services they don’t want. I assume that means a person can secede from participation entirely if he chooses. Further, i presume there would be no coercive monopoly on state services. A person could be free to start his own “state” and offer people to freely choose to live under it if they were willing to accept the covenants he offered. There would essentially be free competition in “state” services. Now, this is something i would describe as anarchy. However, if i have described accurately your vision of a state, yours is the only form i could subscribe to and i concede it is neither coercive nor fraudulent. I do believe you are taking some extreme liberties with the term, but essentially, we have the same vision of acceptable government.
Mr Clem stated that the scientific search for truth (in the old sense of “science” i.e. a body of knowledge, rather than just the scientific method of the physical sciences)is valuable in for its own sake – regardless of political effects (although we hope to win people over to case for greater freedom.
I agree – and I apologize if anything I wrote implied that I did not agree.
Someone else (the name escapes me) brought up the old chestnut about “starving children” – of course government intervention does not reduce poverty over what it otherwise would have been (rather the reverse).
Even leaving aside greater economic prosperity under more limited government (which means that poverty is less than it otherwise would have been). And the work of voluntary action (such as the fraternities and friendly societies that used to have such an influence on working class life – and at a time when economic devolopment [technology and so on] were far less developed than it is today) a few general points need to be made (or rather repeated).
Of course, benevolence (what used to be called the virtue of charity) is a good thing. And (again of course) if one sees parents starving their children to death one may take those children away (save their lives) – children are not property who parents may starve to death (or, indeed, have for lunch).
As for starvation that is not caused by sadism or neglect, but by poverty – there are many children in the world (mostly in very statist places) who are starving as I write this. I agree that it is act of virtue to help them. However, it can harldy be a crime not to help them (otherwise we are all criminals – apart from those of us who give all their money, above subsistance for ourselves, to the starving).
Of course, none of the above has much to do with the case for or against “anarcho-capitalism”.
Under the Constitution of the United States (unless we play games like declaring that the purpose of the powers of Congress, “the general welfare”, is a power in-its-self) the Feds have no power to tax people to save “starving children” at home or abroad.
As Congressman David Crockett (spelling) was fond of pointing out, the Congress has no power to spend money on even looking after people after a fire or earthquake in the United States itself.
Nothing to do with “anacho-capitalism”, it is about having a limited government (at least at federal level).
If Linux is the product of the market, then socialism can work. Mises pointed out that the problem with socialism is the impossibility of calculating prices, supply, and demand. There are no prices and quantities (except at the margin and probably less than even the most socialist country) in Linux development.
(Small clarification, I’m using “Linux” to abbreviate the opensource and free software movement which is larger and not monolithic, but both my fingers and my readers would be fatigued if I tried typing all that everywhere)
If you are stating there can be markets where there is no real exchange (I don’t exchange anything to get Linux, it is free as in beer as well as speech), no prices, and no quantities (Linux can be freely copied and distributed), then maybe we should convert the rest of the more traditional markets to the new model.
Yet Linux has rules. You can’t take Linux private and make a profit with a “better version”. You can’t claim ownership (again, a market where I don’t own it?). It does allocate things like tasks, and it seems to be very efficient, but it is not using money. Or what functions as money is duty or honor or something which is not normally monitizable.
Moving on to address the state machine:
If you have cancer, chemotherapy and/or radiation are necessary evils. The alternative is death. The evil is not justified, but merely the double-effect. In order to remove the evils of robbers and murderers and other thugs – who have shown they will not respond to either niceness or reason – you need something with adequate power to overcome them. Force. This itself is damaging and a poison – like radiation or chemotherapy. So it ought only be used when necessary and in the minimal amount possible.
I don’t see how reasonable people somehow can think people would use cancer treatments on people with the sniffles. However that is the current state of the state power. But the corrective is moderation and appropriate use, not to let cancer kill people because some would use chemo on sniffles.
If you can understand how cancer treatements ought to be limited to treating cancer (and I don’t know how to make this statement any clearer), why can’t you understand that governmental force ought to be limited to destroying those things that destroy the society and culture.
Can it be limited? That is a deeper question. I would simply note that every increase in government power has been originally “to do good”. “To save the union”. To preserve public morals. To encourage education. At each point they portrayed the strong medicine that destroys (designed to destroy evil more than good, but with evil side-effects) as a nutrient and as being “good for you”. I don’t know how to prevent such foolishness. I think liberty could be preserved in a minarchy to the extent that any exercise of power – to destroy an evil – was considered also evil in itself and not good except to the extent of eliminating the greater evil.
The alternative is to privatize it, and I don’t see any way to distinguish which evil – robbery or robbery prevention – will be privatized. Even private thuggery organizations will fall into this category, yet the Ancaps talk of them as doing positive good. That frightens me more than the demon of minarchy where vigilant effort is made to keep it under containment.
A public evil is more visible than a privatized one. Yet privatizing – letting the market handle it doesn’t change its nature from evil to good.
I would suggest looking further the voluntary organization (linux) as enforcer because I don’t think it is a market in any recognizable form.
TZ, you said,
If Linux is the product of the market, then socialism can work.
First, that is an entirely false statement. We generally agree that socialism cannot work, for lots of reasons. Therefore, your statement can only mean that you believe “F/OSS” isn’t the product of a free market.
That is entirely incorrect, for a variety of reasons. Let’s address a few of the “free as in libre” reasons.
F/OSS (Free and Open Source software) has an exceedingly low barrier to entry. All that is required is to license the stuff you yourself produce in a “libre” manner as variously defined. That’s it. No one can force you, no one can prevent you.
Unlike socialism, F/OSS has an exceedingly low barrier to exit. As an author, simply change how you license the materials you yourself have produced.
You may think no money is changing hands, but I wouldn’t tell IBM or RedHat that because they’ll laugh in your face. People don’t sell “air”, they sell compressed air. Liquid air. Purified air. Fractions of air. Money is not made in buckets with commodity items, it is made by selling the service utilizing those commodity items.
F/OSS lends itself to the selling of service because of its transparency. There’s the source, fix it, change it, make it work for you.
Your suggestion that the calculation problem would effect F/OSS is actually correct. There are lots of niche markets, specific applications where someone will write software because someone else will pay for it. As the pool of commodity software and known techniques increases, these niche markets are overwhelmed while new niche markets are created. The bleed edge is driven by paid-for software, while it is the infrastructure that becomes common. Gee, just like roads.
You finish with,
I would suggest looking further the voluntary organization (linux) as enforcer because I don’t think it is a market in any recognizable form.
Why must you bring in force? Why not go learn how the system has spontaneously organized itself because of what people want, what they wish to produce, and how they like to interact? Evil is less in an environment of voluntary interaction because evil cannot be forced. Have you completely missed how coercion is the tool of the state, not of the free market?
I can suggest _The Cathedral And The Bazaar_ by Eric S. Raymond as a start of your enlightenment. http://www.catb.org/~esr/
Please let me know what you think of it after you have read it.
TZ, I came across this article today which might aid you in your enlightenment. It’s written from a very practical viewpoint, so don’t worry about evangalizing: http://www.line56.com/articles/default.asp?articleID=7157&TopicID=4
Tz:
1. “Can it be limited? That is a deeper question.”
This question is the basis of our disagreement.
2. “I would simply note that every increase in government power has been originally “to do good”.”
Note this as often as possible, it is closely connected with why government cannot be limited.
3. “”To save the union”. To preserve public morals. To encourage education. At each point they portrayed the strong medicine that destroys (designed to destroy evil more than good, but with evil side-effects) as a nutrient and as being “good for you”.”
It also “protects” us from our own weak selves and from the amoral market. Not to mention to take from the rich to give to the poor, protect us from drugs and poverty etc.
4. “I don’t know how to prevent such foolishness.”
Neither did the framers of the constitution. Nor does anyone else.
5. “I think liberty could be preserved in a minarchy to the extent that any exercise of power – to destroy an evil – was considered also evil in itself and not good except to the extent of eliminating the greater evil.”
Your points 2 and 4 suggest point 5 is on very tenuous ground. If we accept an evil to eliminate a greater evil, in practice, who decides which evil is which? The ruling elite do. But their track record is not good. Why? See points 2 and 4.
If you are asking me “why can’t you understand that governmental force ought to be limited to destroying those things that destroy the society and culture.”, then I have not made it clear where I stand. To emphasize it, I will replace the words “ought to” with “cannot” and redirect the point back to you:
… governmental force cannot be limited to destroying those things that destroy the society and culture; observe with your own eyes that it is constantly destroying society and culture, rather than protecting it.
Give people permission to tax and maintain a coercive monopoly on police, courts and defense, and you CAN NOT limit them. That’s just the way people are. You know that’s a human weakness don’t you Tz?
I am sick and tired of misanthropic self-righteous libertarians and their caustic attacks on other views, no matter how similar. Insulting well-meaning men like Randy Barnett by saying his work is a “disservice” (yes, you Paul), with little else to add in the way of appropriate discourse, is the true disservice.
Food for Thought: The world IS in anarchy. “Governments” are a social fiction. There are lots of them. All are de facto–and I assume de jure to be law of the divine, i.e. natural law. Of course, natural law itself can vary depending on who you talk to (John Finnis, John Locke, Thomas Aquinas, Murray Rothbard, Hoppe…). So, to some extent, the true dispute here is not between anarchy and the state–this is too broad and not specific enough for rigorous philisophical discussion.
Instead, the anarchists here envision coercion only to the extent that the natural law is enforced….please note that this does not substantively differ from Randy Barnett’s theory. Barnett’s theory, even if wrong, is so compelling because it finds a way to make governments “de jure” rather than de fact. The difference is that Barnett envisions the traditional geographical “state” rather than a collection of individuals who “consent” to their coercer 98% of the time. This is a significant difference no doubt, but at the fringes, the same philisophical problems arise—i.e. what does a “private” coercer do when he is an unwilling plaintiff.
Yes, criticims can be lodged at Randy Barnett for his acceptance of government in “The Lost Constitution.” But for anyone who actually read the book closely, you would find that Barnett does not necessarily think that government is a necessary evil. As he lays out in “Structure of Liberty,” mass private coordination is possible without government–consensual organizations can perform the functions that “government” does now. He does not reject anarchy on a philisophical level (though he doesn’t think it necessary either). How the reviewers missed this subtle but salient point betrays their short-sighted insecurity in dealing with marginally different paradigms.
Both limited government and technical anarchy are paradigms of social/political theory. Philisophically rigorous and consistent theories of political economy or social theory are extremely hard to formulate, if at all. This subject concerns man’s place in the universe, where property rights ultimately derive (if at all), and human nature. As you might imagine, two well-intentioned and well-developed theories could still be diametrically opposed. As such, anyone who insults and treats another person’s good faith theories in the matter, especially when those theories are not facially absurd or illogical, is just being an insecure jerk.
None of these theories is perfect, at least in my current understanding. Let me throw out some typical problems.
1) Anarcho-capitalists frequently ignore what would happen if, say, I hit Bob in a car accident, on a road owned by John Co., which is on land owned by Mary, who gave an “easement” right to John co for such road. I drive off. What can Bob morally do? Can he strip me of my property? Can he take money from me by force? Who decides what his damages are, and what kind of assuranes do I have that these damages are true? Who do I argue to if they are not? What if he and I don’t subscribe to the same “private arbitration” group, and the road that Bob and I were using had no such requirement?
2) Some complications: Lets say we did agree to some arbitration–they judge against me, and then try to take my property by force. I resist, in bad faith, or even believing them to have decided wrongly. Can I morally do so? What if I have no money, and the arbitrators order me to be a slave, and work off the debt through labor? Is my freedom ever alienable, which can then be morally enforced by another, through the use of coercion?
3) What if Mary or John Co. siezed both cars, as they were on “their” property, and coercively decided the case? Lets say they argue that using this road impliedly accepted their jurisdiction in the event of an accident. You say it didn’t. Whose “implied” rules apply? What prevents this from coming down to a battle of force? Ideally, the road controllers make you agree to certain terms of dispute resolution in order to use the road. But that begs the question as well, because that assumes they have the private power to enforce a contract.
Ok, you get the point I hope. These are extremely difficult questions. I have my own answers, at least some of the time, but even I know that none of them are necessarily perfect.
In alot of the above situations, the old “common law” pledge idea can go a long way–i.e. people will only associate with you, allow you on their roads, property, etc, if you have joined a dispute resolution company to which you have made a pledge of some kind of property or money that will be forcibly alienated if you are ruled against. This helps alot but doesn’t solve outlying problems, such as 1) when people get injured without being “protected” by such organizations, 2) when someone “sneaks” onto a road, without the organization, hurts another, and then is subject to damages…can you take from them…what can you take…you get the point.
Whats funny is that I lean towards anarchy. I think in almost all cases, a norm would develop whereby the property on which something happens becomes the determinant of the dispute resolution agency, which you agree to by entering the property–though this would probably be very formal, requiring a pledge and such. (Otherwise, you run into the problem of them seizing property without any criteria as to what to take, how much, and so forth.) In this way individuals would have a highly sophisticated and personally responsible way of coordinating their actions with those of others. Outlying problems still exist however (insolvent debtors – what do you do with them? Thieves, what do you do to them? And lastly, even if solutions for these things wouldn’t be perfect, is the State better?)
I just am not so arrogant that I think that all of my arguments are so “clearly correct.”
One last point:
I am astounded at how negative the treatment towards Randy Barnett has been from the Mises & Lew Rockwell communities; this man is single-handedly responsible for reintroducing libertarian philosophy into mainstream academia. And you know what else?–Mainstream Academia is afraid of him because his arguments are well-developed and compelling (I have seen this first-hand).
tz:
That makes no sense. The three are inseparable; you simply cannot have one without the others.
NDLaw,
How astoundingly negative do you find the following from this piece — http://mises.org/daily/1788 — by Lew?
“Randy E. Barnett’s The Structure of Liberty is an outstanding discussion of the requirements of a liberal-libertarian society from the viewpoint of a lawyer and legal theorist. Heavily influenced by F.A. Hayek, Barnett uses the term “polycentric constitutional order” for anarcho-capitalism.”
An old thread, so sue me for going back and re-reading it.
Linux is a product of the market much like charities and non-profits are businesses. They can exist in the market, but simply because they can handle a niche that others don’t, it doesn’t follow that they could sufficiently provide all or even most of the necessary services in an efficient manner.
As for Randy Barnett, I don’t see that most of us are being harsh with him, but it’s hardly fair to hold him up as an example of perfection, either. Either his argument is being misunderstood, or his argument is mistaken. Either way, discussion can help bring clarity to the matter.
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