Law in "practice" in an anarcho-capitalist society

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JackSkylark replied on Tue, Dec 1 2009 3:41 PM

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wilderness,

You have assumed, as Rothbard did, that the legal code is so obvious that it need not be considered monopolistic. But this is pure fallacy,  since by even attempting to call a private court 'rogue' - you have to appeal to a single legal code as "the" true law code.

In essence Rothbard advocated a system in which the law was monopolistically decided but not enforced in the same manner - he attempted to create a absolute point of reference with out any sort of backing. As was mentioned earlier, Rothbard was incorrect by claiming that his version of anarchy did not posess a monopoly on law (or at least valid law).

The debate is between a monolithic law code vs. polycentric law.

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nirgrahamUK replied on Tue, Dec 1 2009 4:06 PM

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JackSkylark:

You have assumed, as Rothbard did, that the legal code is so obvious that it need not be considered monopolistic

not that its obvious. that its true/correct.

libertarianism is not 'obvious', it is true and correct. or maybe you disagree and are not a libertarian?

of course, the declared opinions among human beings differ as to the correctness of libertarianism, is this alone disproof? has this disproof turned you authoritarian, or collectivist? or something else? of course, that people disagree over whatever that is must make you wrong about that also....

JackSkylark:

In essence Rothbard advocated a system in which the law was monopolistically decided

this is wrong. does a logician, codifying the law of non-contradiction in a logic textbook advocate a system in which logic was 'monopolistically decided'?

to ask it, is to answer it.

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nirgrahamUK replied on Tue, Dec 1 2009 4:20 PM

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I'm rather curious whether some of the contributors to this thread who express an inability to determine 'rogue' law providers from 'legitimate' law providers can distinguish present day governments from either aforementioned categories.........

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Graham Wright replied on Tue, Dec 1 2009 4:59 PM

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Nir - please respond to this first:

trulib:

nirgrahamUK:

trulib:

Or will there be a Friedmanite bargaining process where two courts try to outbid each other over whether cases between their respective clients are tried under libertarian law or Sharia law?

the bargaining between those who would wish to be unjust and those who would be treated justly should only flow one way. that is, the prima-facie unjust actors, could hope to make their actions just by offering to pay the other parties as compensation to allow them to do the act, and if they strike a deal they will succeed to perform the acts within the mode of justice, else they must refrain or be unjust.

trulib:

Use force to make them live under libertarian law, or leave them be and stick to persuasion?

 

if sharia customers want to stone adulterers signed up to libertarian courts then i do propose that there will be occasions when force would be legitimately used against them. this is no more suprising than to say that robinson crusue and man friday, if one were to try to kill the other, the would be victim would apply defensive force *in justice*

But the determination of prima-facie unjust depends on what "just" means.  The libertarian court will say its prima-facie unjust to stone adulterers.  The Sharia court will say its prima-facie unjust for adulterers to object to being stoned, because stoning is fair punishment for adultery.  I agree this will be resolved by one party paying the other party off in some sense - i.e. the Friedman bargaining process.  But it could easily be the case that the adulterer pays compensation to the stoners to refrain, if adultery is generally considered unjust (i.e. if the Sharia courts are able to outbid the libertarian courts, which may be the case if Sharia law is more popular than libertarian law).

I'm still trying to understand what you mean by "should only flow one way".  

Or maybe you could answer the question I posed to Wilderness.  Do you see a distinct difference between say Rand's theory of property rights (not quite correct) and say a socialist theory of property rights (incorrect, not even close) - or is it all just a matter of degree?

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nirgrahamUK replied on Tue, Dec 1 2009 5:11 PM

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trulib:

I'm still trying to understand what you mean by "should only flow one way".

when you look at a shopkeeper paying protection money to the mafia. the bribe is flowing the wrong way. it is unjust. i hope you would not condone such a hegemonic and charade of 'exchange' as being compatible even with your own conception of property rights....

when you look at a citizen paying taxes to the state and federal government, the bribe is flowing the wrong way. to be just, if the state wants to have laws about who can smoke dope, they should offer bribe money to citizens in the hope of inciting the citizens to bond themselves in prohibition of the act of drug taking against the state which pays them to not do drugs that year. that is if a legitimate means of 'outlawing' drug taking is sought....

trulib:

Do you see a distinct difference between say Rand's theory of property rights (not quite correct) and say a socialist theory of property rights (incorrect, not even close) - or is it all just a matter of degree?

I'm afraid I don't understand you. they are different kinds of wrong.

yes, they are different. who would assert that they are without distinguishing features..?, i recognise that they are different, yet they both share features, not least along the dimension of 'correctness'; they both fail.

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JackSkylark replied on Tue, Dec 1 2009 5:16 PM

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nirgrahamUK:

I'm rather curious whether some of the contributors to this thread who express an inability to determine 'rogue' law providers from 'legitimate' law providers can distinguish present day governments from either aforementioned categories.........

Because we believe that we must have a monopolistic legal code. It is is only way to determine rogue law providers from legitimate ones.  I am opposed to polycentric law.

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wilderness replied on Tue, Dec 1 2009 5:23 PM

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trulib:

What legal code isn't based on property rights?

I don't know.  That's what I've been asking everybody but nobody has an answer.  I think it's trival to focus on a half sentence in an epilogue of a book about a dialogue between two people in which nobody knows what the full dialogue was about.  But the key for me is half sentence when the rest of Rothbard's writings have nothing to do with how some posters are interpreting that half sentence.  The context of Rothbards writings lead to a whole other different interpretation.  One that doesn't include monopoly, one that does include free market competition, and one in which the individuals own ultimate-decision making pertains to said individual (negative liberty).  These are explained in detail in all of his writings so a half sentence undeterminable definition of what "legal code" might even mean can only be understood in the context of what Rothbard discussed and NOT in isolation.  The fallacy of isolation not only works in economics but logically in this case too.

trulib:

 In Rand's theory an inventor owns his idea.  In Sharia theory men own their wives.  In a hypothetical redhead-killing theory redheads do not own their own bodies.  All these are property rights theories.  You asked this yourself earlier the thread.  Do you think the answer is that no legal code not based on property rights can conceivably exist?

I don't know.  If other principles are discovered, then the existing principles would still remain, but the theorizing to various degrees will minimally or maximally change.  The principles would have to fit still, but how the theory would incorporate the principles would definitely be interesting if it happens.  That's how science works.

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wilderness replied on Tue, Dec 1 2009 5:32 PM

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JackSkylark:

You have assumed, as Rothbard did, that the legal code is so obvious that it need not be considered monopolistic. But this is pure fallacy,  since by even attempting to call a private court 'rogue' - you have to appeal to a single legal code as "the" true law code.

I haven't assumed otherwise.  I completely understand this and I haven't said otherwise.  Is there something specific you are talking about cause you made two hugely broad statements here?

JackSkylark:

In essence Rothbard advocated a system in which the law was monopolistically decided but not enforced in the same manner - he attempted to create a absolute point of reference with out any sort of backing.

Rothbard theorized using the current principles and empircal facts.  That's the way it goes in science.  Provide me with another theory that includes these known principles and facts but somehow the theory dramatically changes the understanding and then the dialogue can continue but as of now you haven't provided me with any new knowledge.

JackSkylark:

As was mentioned earlier, Rothbard was incorrect by claiming that his version of anarchy did not posess a monopoly on law (or at least valid law).

The debate is between a monolithic law code vs. polycentric law.

I don't see a narrow monolithic v. polycentric law code debate.  I don't know how those that would violate the property of others would not in turn have property owners enact just self-defense (I'm not talking about a pacifist that doesn't defend their own property cause it is still their own property that they do not defend).  Explain all these various laws that conflict with property rights.  Identify them.  Let me know.  Give me knowledge. 

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nirgrahamUK replied on Tue, Dec 1 2009 5:39 PM

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JackSkylark:

Because we believe that we must have a monopolistic   legitimate legal code.

JackSkylark:

It is is only way to determine rogue law providers from legitimate ones

JackSkylark:

I am opposed to polycentric law.

I am a fan of free markets and justice, what say you people?

two line summary:

1) consumers demand justice.

provided by a monopoly, the incentives are to not provide the demanded justice as efficiently as under the pressure of competition. indeed if the monopolist wants injustice then consumers get injustice. heck, its a monopoly.

2)consumers demand injustice

if the monopolist wants justice the consumers get it even if they are dissapointed that they can't get all the injustice they are demanding.

if the monopolist wants injustice then i call that 'poetic justice' against the injustice demanding consumers

is there a comprehensible context of theorising about 'free market' provision of injustice? the attempt of free-market agencies to provide demanded injustice on a wide scale, will either be self defeating, (if there are sufficient consumer demanders of justice to fight them off), if there is not, then people get what they want. injustice reigns. injustice precludes the free-market from operating, the injustice that arises from consumer demand for it, is as much a product of a socialised community (no private property).  This is like a weird paradox......

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wilderness replied on Tue, Dec 1 2009 5:46 PM

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JackSkylark:

Because we believe that we must have a monopolistic legal code. It is is only way to determine rogue law providers from legitimate ones.  I am opposed to polycentric law.

I know this was posted to Nir, but I wanted you to know:  I thought maybe you have come across another legal code that (1) includes property rights but somehow dramatically changes how those property rights are interpreted ('mine and thine' is the shortcut understanding I have of understanding property) (2) somehow doesn't include property rights but does not violate them either.  That would mean there is a more universal principle that would therefore have to incorporate this 'other law' and 'property rights'; also to have kept property rights and this 'other law' distinct and remain in affirmation with each other. 

As a side note:  And somebody that doesn't thoughtfully recognize property rights but still doesn't violate property rights remains adherent to property rights.  And anybody that says they don't recognize property rights - but they say that - obviously they have identified what they are and if they go on to say they still reject them but don't violate them - they identify what they reject but don't violate therefore they are not violating property rights but affirming them.

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AJ replied on Tue, Dec 1 2009 10:59 PM

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trulib:

Isn't that what we'd expect - that the laws of a soceity reflect the values of the individuals in that society.  What is the alternative?

Exactly. If 99% of the people want to kill redheads, probably no political system is going to save them.

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AJ replied on Tue, Dec 1 2009 11:03 PM

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Adam Knott:

There is also a "market" demand for tariffs, minimum wage laws, and for printing ever more money.   But economic science doesn't approach the demand for such things by means of a normative theory.  Economics demonstrates the necessary (incontestable) consequences of these actions, and thus nonlibertarians (for example) abstain from doing these things to the degree they otherwise would, because economic science shows them how it harms their own interests.  Economics shows how those actions harm the people and groups they themselves care about.   They abstain out of self-interest, as demonstrated by value-free economic science.  They do not abstain due to libertarian normative theory.

Would perhaps an example of a disincentive be something not like "If you kill redheads something undesirable will necessarily happen," but rather, "If you support a legal system that allows discriminatory killing of any person who has not harmed another, something undesirable will happen: namely, you increase your risk of being in the next category that people decide it's OK to kill."?

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AJ replied on Tue, Dec 1 2009 11:11 PM

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wilderness:

What other legal code other than 'do not initiate physical aggression' ie. property rights are there? 

For a familiar example, just change the interpretation of what constitutes "aggression" and "property." But you do address this below...

wilderness:

Property rights being a principle/axiom does not disappear but how it is interpreted and applied (both of theory) can change. 

With this insight, it seems it's just a matter of degree - between a different legal code and a different interpretation of the legal code. Interpretations can be pretty disparate - think Commerce Clause, or Hasnas's article (The Myth of the Rule of Law).

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AJ replied on Tue, Dec 1 2009 11:30 PM

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Conza88:

AJ:

Again, which conception of property rights? Which conception of the NAP (which definition of aggression)?

I addressed this in my post to Adam. But found this;

"The laissez-faireists offer several objections to the idea of free-market defense. One objection holds that, since a free market of exchanges presupposes a system of property rights, therefore the State is needed to define and allocate the structure of such rights. But we have seen that the principles of a free society do imply a very definite theory of property rights, namely, self-ownership and the ownership of natural resources found and transformed by one's labor. Therefore, no State or similar agency contrary to the market is needed to define or allocate property rights. This can and will be done by the use of reason and through market processes themselves; any other allocation or definition would be completely arbitrary and contrary to the principles of the free society."

He seems to be saying that property rights (as he conceives of them) will come about organically on the market, and through human reason. I would say this, though, allows for Mises's version of utilitarianism, where reason can help us determine which kind of system of law works best for our aims. This I can agree with.

Conza88:

AJ:

Conza, your quote from Long about normative, legal, and de facto rights seems to make the part I italicized a non sequitur, because property rights in Rothbard's statement, "You can't have free markets unless you have property rights," only applies to de facto rights, not normative ones.

Is Rothbard confused?

nirgrahamUK:

The way to tell a set of 'defacto' property rights apart from a set of 'defacto' nonsense, or 'not-property rights' is through normative understanding.

This doesn't address the point I was making. To recap, Rothbard said, "Any discussion of policy is inherently normative. You can't have free markets unless you have property rights."

However, property rights in Rothbard's statement only applies to de facto (Rothbardian) rights, not normative ones. But even if we must have de facto Rothbardian property rights in order to have free markets, that does not imply that Rothbardian property rights are normative. Hence the quote seems to be a glaring non sequitur.

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Adam Knott replied on Tue, Dec 1 2009 11:48 PM

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AJ:

Adam Knott:

There is also a "market" demand for tariffs, minimum wage laws, and for printing ever more money.   But economic science doesn't approach the demand for such things by means of a normative theory.  Economics demonstrates the necessary (incontestable) consequences of these actions, and thus nonlibertarians (for example) abstain from doing these things to the degree they otherwise would, because economic science shows them how it harms their own interests.  Economics shows how those actions harm the people and groups they themselves care about.   They abstain out of self-interest, as demonstrated by value-free economic science.  They do not abstain due to libertarian normative theory.

Would perhaps an example of a disincentive be something not like "If you kill redheads something undesirable [will necessarily] happen," but rather, "If you support a legal system that allows discriminatory killing of any person who has not harmed another, something undesirable [will] happen: namely, you increase your risk of being in the next category that people decide it's OK to kill."?

AJ:

In your reading of Austrian economics, you will from time to time come across the term "psychic profit."   This is the term some Austrian social thinkers use to signify the increase in happiness (or simply, the happiness) an actor experiences upon attaining his end (satisfying is want, reaching his goal, etc...)

The opposite of this "psychic profit" is, let's say, "psychic loss."   But this just means unhappiness. 

The question is whether there is any necessary link between ethical actions such as murder, coercion, and dishonesty---and any unhappiness that an actor undertaking these acts must experience.   If a link can be established between these kinds of ethical acts and a "psychic loss" to the individual undertaking them, then a disincentive has been demonstrated.  I.e., to lead a more happy life, avoid XYX kinds of acts....

This is what R. Long is trying to do with Eudaimonia ethics in my opinion.  But he is trying to do it via Ayn Rand, Aristotle, and objective ethics, rather than through Austrian formal analysis utilizing methodological individualism, theoretical subjectivism (Mengerian theoretical exact science, Misesian praxeology, etc.).

In your example, I'm not clear on the distinction between "will necessarily happen" and "will happen."

In my understanding, the distinction to be made in formal/logical science is between "will necessarily happen" and "might happen."

Your example states an act and a consequence:

Act:  "If you support a legal system that allows discriminatory killing of any person who has not harmed another"

Consequence: Then..."something undesirable will happen: namely, you increase your risk of being in the next category that people decide it's OK to kill."

The questions would be, 1) whether these definitions can be made rigorous, and 2) whether a necessary relation can be demonstrated such that if one happens the other must happen.  If not, then we have to substitute "might" for "will" in your consequence....

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AJ replied on Wed, Dec 2 2009 12:24 AM

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Adam,

I meant no distinction between "will happen" and "will necessarily happen," but in any case I wasn't trying to formulate an exact law. What I wanted to ask is whether the former or the latter was more the form of exact law you had in mind.

However, changing the topic to actually creating exact laws, what difference is there between "Action X is likely to cause Y to happen" and "Action X will necessarily increase the chances of Y happening"?

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AJ replied on Wed, Dec 2 2009 12:33 AM

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nirgrahamUK:

I'm rather curious whether some of the contributors to this thread who express an inability to determine 'rogue' law providers from 'legitimate' law providers can distinguish present day governments from either aforementioned categories.........

It's subjective. I don't like the idea of adulterers being stoned. Some people are equally put off by the idea of adulterers not being stoned. In the same way, don't like monopolies of force. Words like "rogue" and "legitimate" are either (1) appeals to objective morality, which I reject, or (2) inexact conventions of speech, which I use myself to save time when I know people I'm talking to share my subjective views. I could call a monopoly "rogue" or "criminal," but if I were speaking precisely I'd simply say, "I don't like it" or "It's not helpful to my aims."

Now I know we've been over the subjective/objective debate, and we differ on that, but I think without agreeing on that we cannot really talk fruitfully about this issue either.

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AJ replied on Wed, Dec 2 2009 1:02 AM

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Conza88:

The use of the word monopoly to describe Rothbard's position is not Austrian, nor correct in any sense of the word and doesn't stand the light of day.

But what if Jones challenges the finding? In that case, he can either take the case to his X court system, or take it directly to a privately competitive Appeals Court of a type that will undoubtedly spring up in abundance on the market to fill the great need for such tribunals. Probably there will be just a few Appeals Court systems, far fewer than the number of primary courts, and each of the lower courts will boast to its customers about being members of those Appeals Court systems noted for their efficiency and probity. The Appeals Court decision can then be taken by the society as binding. Indeed, in the basic legal code of the free society, there probably would be enshrined some such clause as that the decision of any two courts will be considered binding, i.e., will be the point at which the court will be able to take action against the party adjudged guilty.[4]

Every legal system needs some sort of socially-agreed-upon cutoff point, a point at which judicial procedure stops and punishment against the convicted criminal begins. But a single monopoly court of ultimate decision-making need not be imposed and of course cannot be in a free society; and a libertarian legal code might well have a two-court cutoff point, since there are always two contesting parties, the plaintiff and the defendant.

Then use the word "monolithic." Such quotes showing that Rothbard understands that the market will decide the law only show him to be curiously inconsistent, as I will explain below. But we don't need to argue about that, because we already have established that Rothbard does in fact advocate a single base code based on natural law, even if it could be "interpreted" in different ways. The problem with this notion of "interpretation" or "variations on a theme" is that there are really only two possibilities:

1. The basic legal code cannot be interpreted in such a way as to make it substantially different from Rothbard's conception (e.g., "adultery is a property violation" is not a possible interpretation)

OR

2. The basic legal code can be interpreted in such a way as to make it substantially different from Rothbard's conception (e.g., "adultery is a property violation" is a possible interpretation)

If #1, then it is truly a monopolistic or monolithic conception. It says, "You can choose which legal system you want, as long as I get to define the scope of the options."

If #2, there is no reason to even propose it in the first place, nor to develop the theory of natural rights, property rights, homesteading, etc. etc. Also no reason for Hoppe's attempt to prove argumentation ethics, Long's constitutive means, Rasmussen and Den Uyl's attempt to prove natural rights, etc.

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AJ replied on Wed, Dec 2 2009 1:45 AM

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Conza88:

Do You Hate the State?

"Let us take, for example, two of the leading anarcho-capitalist works of the last few years: my own For a New Liberty and David Friedman’s Machinery of Freedom. Superficially, the major differences between them are my own stand for natural rights and for a rational libertarian law code, in contrast to Friedman’s amoralist utilitarianism and call for logrolling and trade-offs between non-libertarian private police agencies. But the difference really cuts far deeper. There runs through For a New Liberty (and most of the rest of my work as well) a deep and pervasive hatred of the State and all of its works, based on the conviction that the State is the enemy of mankind. In contrast, it is evident that David does not hate the State at all; that he has merely arrived at the conviction that anarchism and competing private police forces are a better social and economic system than any other alternative. Or, more fully, that anarchism would be better than laissez-faire which in turn is better than the current system. Amidst the entire spectrum of political alternatives, David Friedman has decided that anarcho-capitalism is superior. But superior to an existing political structure which is pretty good too. In short, there is no sign that David Friedman in any sense hates the existing American State or the State per se, hates it deep in his belly as a predatory gang of robbers, enslavers, and murderers. No, there is simply the cool conviction that anarchism would be the best of all possible worlds, but that our current set-up is pretty far up with it in desirability. For there is no sense in Friedman that the State – any State – is a predatory gang of criminals."

I found this vaguely disturbing. What does hatred have to do with scholarship? Yes, of course we don't like the State, but here Rothbard seems to imply that a good libertarian scholar should "hate [the State] deep in his belly." It's as if he hates the fact that his own rejection of the State is only his opinion. As if he hates the fact that natural rights are only persuasive concepts (very good ones!), but not logically necessary ones. Hence the overreaching with the flawed "proofs" of self-ownership, which I believe do a tremendous disservice to the whole libertarian cause by opening it up to easy logical criticism from the outside.

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wilderness replied on Wed, Dec 2 2009 9:41 AM

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AJ:

wilderness:

What other legal code other than 'do not initiate physical aggression' ie. property rights are there? 

For a familiar example, just change the interpretation of what constitutes "aggression" and "property." But you do address this below...

And the interpretation IS about meta-aggression and meta-property for these two latter are metaphysical facts.  What the facts and data mean is what science/episteme is always trying to interpret.  That's old bag. 

AJ:

wilderness:

Property rights being a principle/axiom does not disappear but how it is interpreted and applied (both of theory) can change. 

With this insight, it seems it's just a matter of degree - between a different legal code and a different interpretation of the legal code. Interpretations can be pretty disparate - think Commerce Clause, or Hasnas's article (The Myth of the Rule of Law).

It's not a matter of degree.  There are property rights.  You haven't given me any legal code that conflicts with property rights.  There are different interpretations and applications of property rights.  These have been brought up and are nothing new.  Some of them are heavily debated and others everybody agrees upon.  The debate is the competition in the free market, meaning, the debate is argued peacefully between individuals at a coffee shop and decisions are made as to which side of the debate an individual inclines upon when they step into a particular store that sells a particular brand/interpretation/application of property rights.  Some of the property rights are not even debated anymore except by 'extremists' ie. murder and rape, etc...  They are wrong.  I don't know of anybody outside of what is known as a criminal that advocates that murder and rape are good.  Even criminals may say they are wrong but can't control themselves or simply like doing wrong things so they enact these crimes.  Other interpretations on how to apply property rights, at least in this forum, become a bit controversial ie. IP, aboration, etc...  These, like any interpretations of property rights are debateable amongst all people and this may very well be the creative angles different courts, stores, what have you, sell their product.  One store may offer this kind of IP protection.  Another store a different kind of IP protection.  But I don't see how any store gets around trying to sell "Murders or Rapists for Hire".  That debate is over.  It's a no-seller.

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wilderness replied on Wed, Dec 2 2009 9:44 AM

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AJ:

Now I know we've been over the subjective/objective debate, and we differ on that, but I think without agreeing on that we cannot really talk fruitfully about this issue either.

the subjective/objective debate is a red herring.

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wilderness replied on Wed, Dec 2 2009 10:03 AM

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AJ:

Such quotes showing that Rothbard understands that the market will decide the law only show him to be curiously inconsistent,

He's not being inconsistent.  You are being inconsistent.  sorry mate, but that's what's happening.

AJ:

...because we already have established that Rothbard does in fact advocate a single base code based on natural law, even if it could be "interpreted" in different ways.

What other law conflicts with property rights?  Tell me.  Otherwise this eruption of yours is a disruption - a red herring.

AJ:

The problem with this notion of "interpretation" or "variations on a theme" is that there are really only two possibilities:

1. The basic legal code cannot be interpreted in such a way as to make it substantially different from Rothbard's conception (e.g., "adultery is a property violation" is not a possible interpretation)

It is an interpretation.  Property rights is the meta-concept here.  The knowledge about what entails property, thus, a violation thereof is episteme - not metaphysics.

AJ:

2. The basic legal code can be interpreted in such a way as to make it substantially different from Rothbard's conception (e.g., "adultery is a property violation" is a possible interpretation)

It is, but some interpretations due to an individual(s) current knowledge are NOT even debated anymore.  In some parts of the world they still might be debated though.  If dialogue and market forces can filter out all the bads, then good.  If any number of people find it necessary to skip dialogue and skip free market competition is sell their product ie. coercion, then bad.

AJ:

If #1, then it is truly a monopolistic or monolithic conception. It says, "You can choose which legal system you want, as long as I get to define the scope of the options."

doublespeak here.  You say monopolisitic involves freely defining "the options".  Needs clarification due to illogic.

AJ:

If #2, there is no reason to even propose it in the first place, nor to develop the theory of natural rights, property rights, homesteading, etc. etc. Also no reason for Hoppe's attempt to prove argumentation ethics, Long's constitutive means, Rasmussen and Den Uyl's attempt to prove natural rights, etc.

No.  Because natural law is discovered.  To know what natural rights are is to apply the intellect.  These rights may be based on how a particular person feels, but the mind needs to know.  It is reflexive.  Without a mind knowing anything, the mind knows nothing and thus the individual is blind unintelligable.  Humans are not worms and respond strictly instintively.  Humans are deliberate ie. praxeological.  To understand and then to give knowledge about what justice is or what morals are, and to be able to share in dialogue what a person means by these terms it is optimul to apply what a person thinks about any issue logically.  Humans starting from babies out of the womb need to learn.  The mind absorbs context but it also has to learn how to speak, to learn definitions of terms, and to apply and interpret reality correctly.  A debate about reality between 8 year olds will be a totally different debate about reality between 40 year olds.  What the 8 year olds are dialoguing about the 40 year old may already know for certain the answer to.  Some answers are passed on to children from their parents and their community without controversy and so they learn them early on.  Others might be more debatable but give it a generation or two and that debate might be resolved and therefore there is no debate about the topic anymore.

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JackSkylark replied on Wed, Dec 2 2009 10:25 AM

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I don't even know what you are trying to get at with your interpretation of property. Property is merely the legitimization of jurisdiction in regards to action, nothing more. The allocation of or metaphysical aspects related to property are not bound up in the concept alone.

The state has said that it owns all - thus their legal code regarding property rights. Bob down the lane says he should own my garden, because he tills it - thus his legal code regarding property rights. Humans act in spite of natural law, not because of it.

Another facet to the debate. The whole definition of anarcho-capitalism is destroyed if there is not a monolithic legal code. In fact, the legal code must contain two parts - one regarding the nature of anarcy (no-rulers, i.e. no coercion) and the other regarding the nature of capitalism (the process by which property becomes property). These both must be setteled beforehand inside a monolithic legal construct if there is to be anarcho-capitalism. 

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wilderness replied on Wed, Dec 2 2009 10:55 AM

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JackSkylark:

I don't even know what you are trying to get at with your interpretation of property. Property is merely the legitimization of jurisdiction in regards to action, nothing more. The allocation of or metaphysical aspects related to property are not bound up in the concept alone.

I agree.  And I know what I said doesn't disagree with you here.  Understanding metaphysics is to understand, in this instance, that property exists.  It is a fact.  There IS property.  That's a metaphysical statement.  Metaphysics deals with "Is" or "being".  It answers the question: 'What is?'.  I was merely pointing out that sometimes people debate over what is, in this case, I was pointing out that sometimes people argue over if there is property.  Once it is understood that property exists (that property is), then logically it entails defining what property is.  This is how knowledge is expanding upon.  This is therefore leaving metaphysics and getting into the episteme or knowledge of property.  

Sometimes the arguments are NOT taken to their logical outcome and people end up arguing that natural rights can be protected by a government ie. 8th or 9th amendment of the U.S. Constitution.  But other times these arguments are taken to their logical outcome and it's understood that property and thus liberty consists of NOT having a government.

JackSkylark:

The state has said that it owns all - thus their legal code regarding property rights.

Yes.  It is the communist form of property rights which has been debunked many of times over by various fields of science including Austrian economics for one.

JackSkylark:

Bob down the lane says he should own my garden, because he tills it - thus his legal code regarding property rights. Humans act in spite of natural law, not because of it.

'Your' garden.  'You' gave Bob permission to till 'your' garden.  If Bob doesn't recognize it's your garden and you gave him permission to till it, though you did, then thereafter Bob is trespassing.  Sometimes humans become violent and initiate aggression.  They become illogical, but simply because one person piles up 1 orange, then a second orange and states while pointing at the pile of oranges 1+1=3; it's a fact that there are only 2 oranges even though he points and moves about these oranges and states there are three.

JackSkylark:

Another facet to the debate. The whole definition of anarcho-capitalism is destroyed if there is not a monolithic legal code. In fact, the legal code must contain two parts - one regarding the nature of anarcy (no-rulers, i.e. no coercion) and the other regarding the nature of capitalism (the process by which property becomes property). These both must be setteled beforehand inside a monolithic legal construct if there is to be anarcho-capitalism.

good statement!

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Adam Knott replied on Wed, Dec 2 2009 12:26 PM

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JackSkylark:

I don't even know what you are trying to get at with your interpretation of property. Property is merely the legitimization of jurisdiction in regards to action, nothing more. The allocation of or metaphysical aspects related to property are not bound up in the concept alone.

The state has said that it owns all - thus their legal code regarding property rights. Bob down the lane says he should own my garden, because he tills it - thus his legal code regarding property rights. Humans act in spite of natural law, not because of it.

Another facet to the debate. The whole definition of anarcho-capitalism is destroyed if there is not a monolithic legal code. In fact, the legal code must contain two parts - one regarding the nature of anarcy (no-rulers, i.e. no coercion) and the other regarding the nature of capitalism (the process by which property becomes property). These both must be setteled beforehand inside a monolithic legal construct if there is to be anarcho-capitalism. 

JackSkylark:

I think some of us are trying to say the same thing or make the same point, and it's not getting across to some extent.

Another possible way of saying it:

As I mentioned before, I might refer to Rothbard's vision as "natural rights capitalism."   It is a capitalistic system with natural rights legal code.

Based on what Trulib posted, I might refer to Friedman's vision as "market based law provision."   It is a system that envisions law arising out of "consumer demand," this conceived mainly along traditional market/exchange lines.   (perhaps this is not the completely accurate, but for the sake of discussion....)

For both of these systems to come into existence, some people must come to agree on a specific natural rights legal code (for Rothbard's system), or, some people must agree to allow laws to be decided by a market process (for Friedman's system [again, assuming for the sake of argument that this is his system])

If all people do not agree on either system---if there is not complete unanimity---then the question naturally arises as to the legal status of those not agreeing with the system in question (the legal status of outsiders, as defined by the AnCap legal code or system we are referring to).

If they are to be considered outlaws in the legal sense (not just the non-binding moral sense), then the legal system inflicts consequences which involve some form of coercion. 

If the outsiders are not considered outlaws in the legal sense, but are allowed to proceed unharmed, then we have some kind of legal coexistence.

The current system we might describe as poly-centric with respect to inter-national membership defined in terms of geography, and monopolistic with respect to intra-national membership defined in terms of geography.    People who try to set up legal compounds within national territories face severe consequences.  Members of other territorial nations though, receive special cards that allow them to pass through, co-mingle, and exit.

I think the current debate and discussion shows that libertarianism as a movement is still grappling with this situation.  As a movement, libertarianism hasn't come to terms with how to approach monopolism versus polycentrism, and I believe that the notion of separating political association from geography will play a part in solving this dilemma, or at least moving us toward some form of libertarian future.

But regardless of each person's political beliefs and convictions, I think clarity in the discussion helps move the discussion forward whereas ambiguity and lack of clarity is harmful and leads to needless acrimony.   So thank you for your clarity in this discussion and in other posts you have made.

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wilderness replied on Wed, Dec 2 2009 12:32 PM

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Adam Knott:

monopolism versus polycentrism

that's a red herring; same as objective versus subjective.  it creates division where there is no division and therefore leads the dialogue off-course.  The red-herring is not necessarily of your making Adam.  It might be a preconception from who knows where that you picked up on and have conveyed here, but it doesn't offer anything to the dialogue from what I make of it.

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AJ replied on Wed, Dec 2 2009 2:24 PM

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wilderness:

You haven't given me any legal code that conflicts with property rights.  There are different interpretations and applications of property rights. 

Again, interpretations can vary widely. In Sharia law, the property rights are such that wives are the property of their husbands.

If people that believe in Sharia law move into your community, what are you going to do?

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wilderness replied on Wed, Dec 2 2009 2:28 PM

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AJ:

wilderness:

You haven't given me any legal code that conflicts with property rights.  There are different interpretations and applications of property rights. 

Again, interpretations can vary widely. In Sharia law, the property rights are such that wives are the property of their husbands.

lol are you agreeing with me?

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AJ replied on Wed, Dec 2 2009 2:32 PM

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As someone else noted, pretty much all legal systems are based in their conception of property rights, so I find your objection curious.

You're not really making sense to me in the last few posts and/or your responses don't seem to refute what I wrote, so I'm happy with letting them stand as they are.

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wilderness replied on Wed, Dec 2 2009 2:35 PM

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AJ:

As someone else noted, pretty much all legal systems are based in their conception of property rights, so I find your objection curious.

1 - I said that (underlined), except I didn't say "pretty much".  I said I don't know of one that is outside of property rights and if it does to let me know what one.  I've been asking you and Adam since you are talking about poly-law, meaning more than one law outside of property rights.

2 - I asked if you are agreeing with me - a question - so how are you misconstruing that as an "objection"?

AJ:

You're not really making sense to me in the last few posts and/or your responses don't seem to refute what I wrote, so I'm happy with letting them stand as they are.

Because you are now agreeing with me.  I know it might be disturbing

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nirgrahamUK replied on Wed, Dec 2 2009 3:07 PM

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AJ:

If people that believe in Sharia law move into your community, what are you going to do?

what do their victims want me to do? and what do these people do to me?

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Zavoi replied on Wed, Dec 2 2009 3:39 PM

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trulib:

So if a bunch of people in Rothbardia want to live under Sharia law, can they?   Will the libertarian courts just call the Sharia courts "outlaws"?

If a bunch of people have agreed to subscribe to a Sharia court, then any disputes among them will be dealt with internally, and no opportunity for third-party involvement will arise. Such cases will never be brought before the other courts, and so the other courts have no reason to care enough to call the Sharia courts "outlaws."

Adam Knott:

There simply is no agreed upon libertarian legal code.   There are many factions and schools within libertarianism and anarchism, and each have their own notions of just property, of aggression, of justice, fairness, morality, immorality, etc....

Do you think that there is no chance that these disputes will ever be resolved? Will debating these issues bring us (libertarians/anarchists) any closer to an agreement?

AJ:

If #1, then it is truly a monopolistic or monolithic conception. It says, "You can choose which legal system you want, as long as I get to define the scope of the options."

Who is "I"? What Rothbard is saying is that the legal code can be deduced logically in some non-arbitrary manner, so there does not need to be a decreer-from-on-high in order for there to be an agreement. Like Nir was saying earlier, for example, mathematicians all agree on the statement "there are infinitely many prime numbers," not because some Authority has promulgated such as dogma, but because there is a sound proof of this fact. So it is with the legal code, at least according to Rothbard.

wilderness:

AJ:

Now I know we've been over the subjective/objective debate, and we differ on that, but I think without agreeing on that we cannot really talk fruitfully about this issue either.

the subjective/objective debate is a red herring.

The subjective/objective debate is crucial. If it is indeed impossible to deduce a non-arbitrary legal code, then the only possible legal codes will be those determined by someone's arbitrary decree/belief. And in that case, it really would be impossible to distinguish, on the one hand, adherence to a particular legal code, from allegiance to a particular authority or institution on the other hand. A monopolistic legal system then becomes the only one in which universal agreement on a legal code is possible.

AJ:

If people that believe in Sharia law move into your community, what are you going to do?

Don't subscribe to the Sharia court?

AJ:

trulib:

Isn't that what we'd expect - that the laws of a soceity reflect the values of the individuals in that society.  What is the alternative?

Exactly. If 99% of the people want to kill redheads, probably no political system is going to save them.

I'm wondering: do you think that the institutional structure of a society, apart from the individual beliefs of its members, can have an effect on the outcome? So, say, a pure democracy might require 50% anti-redheadists before the mass killings start, an oligarchy 30%, and an ideal anarchist society might require 70% support of the project before anyone can be convinced to actually get out and spend the time and money necessary to accomplish it. It may be worth thinking about.

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wilderness replied on Wed, Dec 2 2009 4:26 PM

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Zavoi:

wilderness:

AJ:

Now I know we've been over the subjective/objective debate, and we differ on that, but I think without agreeing on that we cannot really talk fruitfully about this issue either.

the subjective/objective debate is a red herring.

The subjective/objective debate is crucial.

S and O in and of themselves get into semantical word games.  I'm saying these concepts are red herrings without context.  Yet the context can be discussed without referring to S and O.  I think property rights are absolute and that can be understood as a subjective and an objective statement.  Subjective because it is I, as in individual upon my free-will, realizing the axiom.  Objective because it is an axiom and doesn't necessarily have to do with "I" but is discovered by an I (Homo sapiens) having this kind of intellectual grasp that much is for sure (meaning if some other species of machine or biology can intellectually grasp what is metaphysically a fact, then such a creature has the intellect too).

Zavoi:

If it is indeed impossible to deduce a non-arbitrary legal code,

It is possible to find this out without having to refer to S nor O each and everytime.  For instance your sentence here is completely clear and not once did you refer to S or O.

Zavoi:

...then the only possible legal codes will be those determined by someone's arbitrary decree/belief.

I think we need to throw out "legal code" from this discussion as it hasn't moved the dialogue forward at all.  It turns into trying to scalpel what Rothbard meant out of a half-sentence without considering all his works.  It's like trying to find out if Bob is in the closet about being a homosexual.

Arbitrary decree's are not logical and thus logic is necessary.  If a community, though, wants to say the grass in their yard must be 5 inches tall and no higher and all that move into this community sign onto this contract about grass height, then that's their arbitrary decision.  But that community to go out and arbitrarily coerce other individual(s) that do not sign onto the contract is to violate property rights and I think unjust.  It's when people coerce others into their schemes that the danger arises.

Zavoi:

And in that case, it really would be impossible to distinguish, on the one hand, adherence to a particular legal code, from allegiance to a particular authority or institution on the other hand.

What I like about Rothbard is his logical identity of what property rights are.  He took property rights (A) and identified logically what A is.  His knowledge of A and all else that is A, in other words, I don't know of anything that Rothbard included in A that isn't A.  His logic is sound.  A is A with him.  His theory of property rights, his knowledge of property rights, thus his interpretation of A is A - logically.  I know there is some debate on what might actually be considered property rights and that knowledge is debated, but I don't know if I readily disagree with any of the knowledge Rothbard has.  I would live in a community similar to theorizing.  Each individual logically can aspire to the property rights that neatly fits with liberty.  That would be the goal of any liberty lover I would hope.  If any piece of knowledge contradicts what property is, then I'm willing to throw that knowledge in the trash heap.

Zavoi:

A monopolistic legal system then becomes the only one in which universal agreement on a legal code is possible.

Yes and as somebody of the NAP I wouldn't initiate aggression against anybody until such another person(s) violates my property rights and if I have the power I will in self-defense protect my property.

Zavoi, when I focus on what I find to be the significant concepts in this discussion I find total agreement.

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AJ replied on Wed, Dec 2 2009 5:12 PM

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Zavoi:

AJ:

If #1, then it is truly a monopolistic or monolithic conception. It says, "You can choose which legal system you want, as long as I get to define the scope of the options."

Who is "I"? What Rothbard is saying is that the legal code can be deduced logically in some non-arbitrary manner, so there does not need to be a decreer-from-on-high in order for there to be an agreement. Like Nir was saying earlier, for example, mathematicians all agree on the statement "there are infinitely many prime numbers," not because some Authority has promulgated such as dogma, but because there is a sound proof of this fact. So it is with the legal code, at least according to Rothbard.

You're right, it does all hinge on whether there is actually a logical basic for objective ethics (and certain other closely-related concepts).

Zavoi:

If it is indeed impossible to deduce a non-arbitrary legal code, then the only possible legal codes will be those determined by someone's arbitrary decree/belief. And in that case, it really would be impossible to distinguish, on the one hand, adherence to a particular legal code, from allegiance to a particular authority or institution on the other hand. A monopolistic legal system then becomes the only one in which universal agreement on a legal code is possible.

Very well put!

So my comments about Rothbard's conception being monopolistic only have force to those who reject objective or a priori ethics. This means that the debate we're having in the other thread is in fact a very important one.

Zavoi:

trulib:

Isn't that what we'd expect - that the laws of a soceity reflect the values of the individuals in that society.  What is the alternative?

AJ:

Exactly. If 99% of the people want to kill redheads, probably no political system is going to save them.

I'm wondering: do you think that the institutional structure of a society, apart from the individual beliefs of its members, can have an effect on the outcome? So, say, a pure democracy might require 50% anti-redheadists before the mass killings start, an oligarchy 30%, and an ideal anarchist society might require 70% support of the project before anyone can be convinced to actually get out and spend the time and money necessary to accomplish it. It may be worth thinking about.

I think that is exactly correct. My thinking on this is that, if a group of people with no monopoly on force among them has X level of tendency to "kill redheads" (or whatever), such tendencies would be strengthened and/or enabled by having a monopoly on force among them, because the "redhead killers" would merely need to get into office to be able to exert their will over others far out of proportion to their numbers.

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wilderness replied on Wed, Dec 2 2009 5:42 PM

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AJ:

You're right, it does all hinge on whether there is actually a logical...

Remember logic is A is A.  So all you said here is 'it does all hinge on whether there is actually a(n) A is A...'

maybe you meant another term.  another other than "logical"? 

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E. R. Olovetto replied on Wed, Dec 2 2009 5:52 PM

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A priori ethical statements are the same thing as objective morality (whatever that actually means) now? Oh, how surprised I am that the discussion always returns to this silliness. Is this really even important? Show where any alternative has an advantage.

The only beef I have with Rothbards quote is his word choice, "outlaw". People are reaching faulty conclusions from either a lack of imagination or a desire to sling mud at poor Murray.

People here's use of "monolithic" is hilarious. Stop please.

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wilderness replied on Wed, Dec 2 2009 5:58 PM

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I can find nothing to quarrel with in your post except a very minor issue that might not even be what you meant at all. 

If somebody does violate another's property I think they are an outlaw.  But that determination happens in accord with the individuals interpretation of what property rights entail.  For instance, if I sign up to an agency that enforces 'don't walk on my lawn' and somebody else belongs to one that allows for 'walking on lawns' well they better understand I don't tolerate walking on my lawn.  if they do walk on my lawn, i give them T-minus whatever seconds to get the hell out of dodge.

You may have meant that if I believe in not walking on lawns and somebody else thinks it's ok to walk on lawns - even though they don't walk on my lawn if I try to enforce my idea of property on them that would be coercion and completely against the NAP.  I would have no legitimate stance of self-defense cause they didn't walk on my lawn.  they merely think it is ok.  they can think it's ok all the want as long as they don't think that while on my lawn.

hopefully the logical extent of what property rights mean is very far in the minds of people so the conflicts are very far and few between.  I think there are pretty clear cut identities of what entails property.

good post.  it does get silly.  I highly agree with that!!

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Conza88 replied on Thu, Dec 3 2009 6:39 AM

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trulib:

Conza88:

trulib:

Abortion and capital punishment are two issues where it is not clear what the 'correct' libertarian answer is.  In Rothbard's system, if abortion is allowed by the 'single legal code', then any courts not allowing abortion are outlaw courts. 

And that's complete bs. It's "BASIC Law code" which is as simple as "(requiring that no one invade any one else's person and property)" - the strawmanners have added the word single to try make their fallacious point.

Here, again, is the quote by Rothbard: "...the basic Law Code...would have to be agreed upon by all judicial agencies..."  "Any agencies that transgressed the basic...code would be open outlaws and aggressors..."   (The Ethics of Liberty, p. 236-237)

Here again is the quote by Rothbard... without, the most important points removed and strung together so you can try make your fallacious point.

Furthermore, law and the State are both conceptually and historically separable, and law would develop in an anarchistic market society without any form of State. Specifically, the concrete form of anarchist legal institutions- judges, arbitrators, procedural methods for resolving disputes, etc.-would indeed grow by a market invisible-hand process, while the basic Law Code (requiring that no one invade any one else's person and property) would have to be agreed upon by all the judicial agencies, just as all the competing judges once agreed to apply and extend the basic principles of the customary or common law.13 But the latter, again, would imply no unified legal system or dominant protective agency. Any agencies that transgressed the basic libertarian code would be open outlaws and aggressors, and Nozick himself concedes that, lacking legitimacy, such outlaw agencies would probably not do very well in an anarchist society.14

13. Cf., Bruno Leoni, Freedom and the Law (Los Angeles: Nash Publishing, 1972), and F.A. Hayek, Law, Legislation, and Liberty, vol. 1 (Chicago: University of Chicago Press, 1973).

- What you explicitly left out:

*What the basic law code would actually be. "(requiring that no one invade any one else's person and property)"

*An historical example of what is meant. "just as all the competing judges once agreed to apply and extend the basic principles of the customary or common law.13"

*An acknowledgment that some people would attempt to call this a unified legal system, although it is clearly not. "But the latter, again, would imply no unified legal system or dominant protective agency."

trulib:

You're right - he doesn't say single.  But he says "the", meaning only one.  And by saying all judicial agencies have to agree, he is implying that there are no variations between different courts' legal codes (only their interpretation of it).

The judicial agencies voluntarily agree to the BASIC law code. Got a problem with that? "Basic" implies there would be an advanced aspect, no? i.e interpretations & everything else. The implication is that the market process would sort itself out after that, i.e the advanced aspects  - as he states at the start of the paragraph; that which you deliberately left out:

"Specifically, the concrete form of anarchist legal institutions -judges, arbitrators, procedural methods for resolving disputes, etc.-would indeed grow by a market invisible-hand process."

trulib:

So what if a court wanted to have a different rule for defining rightful property - for example, suppose they believe in Rothbard's rules in all cases except water.  This court believes, for some reason, that water is always the "property of the Earth" - so if A takes some water from B, this is simply not a crime, because B has no better claim to the water than A, in the view of this court.

This whole scenario is beyond absurd.

First - the only way a court would ever get to hear or make a ruling on a dispute is when two individuals (or organizations), i.e an plaintiff and a defendant seek a third party to settle the dispute.

So, there exists the water. Plaintiff believes it was his water. He brings case against the defendant, who took the water and is now being sued. They both agree on a third party to settle the dispute, or leave it up to their respective DRO's to choose one on their behalf.

They choose the court above, the one you mentioned. It determines the water is always "the property of the Earth". The plaintiff, goes "wtf are you retarded? the Earth cannot own anything, it is not human.. it's not a person, it's not even alive. So every time someone drinks water, it is stealing from the Earth? Well why doesn't the Earth take everyone to court! " And appeals the decision. The defendant does the same thing. For logically it follows that if the Earth owns the water, then both of them would be criminals.

trulib:

Now - would Rothbard call this an outlaw court?  I think he would

Nope. I don't think he would, given his previous quotes. That court would be laughed at, no-one would go there ever again when it comes to property disputes regarding water, because the court decided in favor of something that cannot own anything and is not alive. It's reputation is tarnished and should it make descisions like that in other areas, not just water - it will quickly go bankrupt and perish.

But what if Jones challenges the finding? In that case, he can either take the case to his X court system, or take it directly to a privately competitive Appeals Court of a type that will undoubtedly spring up in abundance on the market to fill the great need for such tribunals. Probably there will be just a few Appeals Court systems, far fewer than the number of primary courts, and each of the lower courts will boast to its customers about being members of those Appeals Court systems noted for their efficiency and probity. The Appeals Court decision can then be taken by the society as binding. Indeed, in the basic legal code of the free society, there probably would be enshrined some such clause as that the decision of any two courts will be considered binding, i.e., will be the point at which the court will be able to take action against the party adjudged guilty.[4]

Every legal system needs some sort of socially-agreed-upon cutoff point, a point at which judicial procedure stops and punishment against the convicted criminal begins. But a single monopoly court of ultimate decision-making need not be imposed and of course cannot be in a free society; and a libertarian legal code might well have a two-court cutoff point, since there are always two contesting parties, the plaintiff and the defendant.

trulib:

If the basic legal code does not define what rightful property is, then a court can define it any way it wants.

Except it can't. It must decide in favor of the Plaintiff, or the Defendant - either separate individuals, or organisations. It can't then go decide in favor of "the earth" lmao! Or any other entity separate of those present. "A and B are present, they wish me to settle this property dispute. So I find in favor of C!"  That is precisely the scenario above you stipulated. Within the 'Rothbardian' system, it allows for appeals process which is clearly stated above.

trulib:

In this case, I don't see how it is possible to have an outlaw court

It is those that do not accept the NAP, nor attempt to apply it. You've never heard of the constant and standard objections by statists that; "But a PDA / DRO will buy guns, tanks and weapons, then take over society!".

As I posted earlier, because I thought it might clear things up - well hopefully it does a second time round:

"Furthermore, the purely free-market, stateless society would contain within itself a system of built-in "checks and balances" that would make it almost impossible for such organized crime to succeed. There has been much talk about "checks and balances" in the American system, but these can scarcely be considered checks at all, since every one of these institutions is an agency of the central government and eventually of the ruling party of that government. The checks and balances in the stateless society consist precisely in the free market, i.e., the existence of freely competitive police and judicial agencies that could quickly be mobilized to put down any outlaw agency.

It is true that there can be no absolute guarantee that a purely market society would not fall prey to organized criminality. But this concept is far more workable than the truly Utopian idea of a strictly limited government, an idea that has never worked historically. And understandably so, for the State's built-in monopoly of aggression and inherent absence of free-market checks have enabled it to burst easily any bonds that well-meaning people have tried to place upon it. Finally, the worst that could possibly happen would be for the State to be reestablished. And since the State is what we have now, any experimentation with a stateless society would have nothing to lose and everything to gain."

trulib:

Surely Rothbard meant for the legal code to be more narrow, namely requiring that no one invade any one else's person and property

Yes, it is a theory of PRIVATE property rights.

trulib:

... any legal code can be framed in terms of property rights.  Every legal code will be based on a version of the NAP.

Communism has a legal code, it deals with property rights as all systems have to do... but not all respect or adhere, or even attempt to apply the NAP - which is based on PRIVATE property rights. Only those that are 100% full self ownership, do.

The key to the theory of liberty is the establishment of the rights of private property for each individual's justified sphere of free action can only be set forth if his rights of property are analyzed and established. "Crime" can then be defined and properly analyzed as a violent invasion or aggression against the just property of another individual (including his property in his own person). The positive theory of liberty then becomes an analysis of what can be considered property rights, and therefore what can be considered crimes. Various difficult but vitally important problems can then be dissected, including the rights of children, the proper theory of contracts as transfers of property titles, the thorny questions of enforcement and punishment, and many others. Since questions of property and crime are essentially legal questions, our theory of liberty necessarily sets forth an ethical theory of what law concretely should be. In short, as a natural-law theory should properly do, it sets forth a normative theory of law-in our case, a theory of "libertarian law." While the book establishes the general outlines of a system of libertarian law, however, it is only an outline, a prolegomenon to what I hope will be a fully developed libertarian law code of the future.

Hopefully libertarian jurists and legal theorists will arise to hammer out the system of libertarian law in detail, for such a law code will be necessary to the truly successful functioning of what we may hope will be the libertarian society of the future.

- Preface Ethics of Liberty

After all, although self-ownership is more fundamental than rights in external resources — one must own oneself in order to own other things — self-ownership is rendered meaningless if the right to own private property is not also respected. This is why Murray Rothbard insisted that all "human rights" are property rights — ownership rights in scarce resources, whether self-ownership rights in one's body or property rights in external objects.

Now as the example above shows, all political theories advocate some form of property rights, since they specify certain owners of various types of resources. State policies that tax, conscript, or imprison or fine individuals for failure to comply with various regulations in effect assign partial ownership in the subjects' bodies or property to the state. The state claims a partial ownership right in these resources.

All political systems assign owners to resources according to some assignment rule. What sets libertarianism apart is its own unique property-assignment rule: the rule that specifies that individuals, not the state, are owners of their own bodies and property.  - Kinsella

Conza88:

Do You Hate the State?

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Conza88 replied on Thu, Dec 3 2009 6:51 AM

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AJ:

Conza88:

AJ:

Again, which conception of property rights? Which conception of the NAP (which definition of aggression)?

I addressed this in my post to Adam. But found this;

"The laissez-faireists offer several objections to the idea of free-market defense. One objection holds that, since a free market of exchanges presupposes a system of property rights, therefore the State is needed to define and allocate the structure of such rights. But we have seen that the principles of a free society do imply a very definite theory of property rights, namely, self-ownership and the ownership of natural resources found and transformed by one's labor. Therefore, no State or similar agency contrary to the market is needed to define or allocate property rights. This can and will be done by the use of reason and through market processes themselves; any other allocation or definition would be completely arbitrary and contrary to the principles of the free society."

He seems to be saying that property rights (as he conceives of them) will come about organically on the market, and through human reason. I would say this, though, allows for Mises's version of utilitarianism, where reason can help us determine which kind of system of law works best for our aims. This I can agree with.

"our aims"

- Whose aims? Ahh the utilitarians.. where did individualism suddenly go, eh?

Is Utilitarianism Viable? Robert P. Murphy

Hi, my name’s Bob, and I’m a recovering utilitarian.  It’s been a few months now since I admitted the truth to myself.  You see, I used to believe that all moral issues could be reduced to a simple maximization of utility.  Many of my closest friends told me I had a problem, but I refused to listen.  They meant well, but they just didn’t get it.  Or so I thought.

The fundamental problem with utilitarianism is this:  Despite a succession of ingenious proponents, its advocates have yet to explain why the individual should behave morally.  The fact that we are all better off if we all behave morally is utterly true and utterly irrelevant.  (Such an argument violates the cherished Austrian precepts of marginalism and individualism.)

...

In other words, if you pause to wonder why you should ever die for a cause, then the honest utilitarian must admit:  You should not.

This candid admission, in my opinion, is fatal to utilitarianism.  There are all sorts of situations—i.e., not simply the soldier being asked to take a hill—where conventional morality requires an individual to forego genuine (i.e. long-run) gain.  References to the benefits of a virtuous character will not convince someone who is lacking such a character in the first place.

Moreover, if everyone agreed with Yeager and other utilitarians that it were foolish to sacrifice oneself in these rare instances, an element of doubt would arise in all social interactions.  Although pangs of conscience might be a wonderful evolutionary byproduct, it would be in the interest of everyone to steel himself against such "irrational" feelings (while still behaving in accordance with them under normal circumstances).  One’s very life might one day depend on it.

It doesn’t really matter whether my conjecture is empirically true.  The decisive issue is that, if it were true—that is, if the level of conventionally moral behavior did in fact deteriorate over time, until everyone viewed each other as a potentially deadly enemy—the utilitarian would have nothing much to say.  He might lament the trend, but only in the way an astronomer would lament a comet hurtling toward Earth.  Throughout the process, the utilitarian could not condemn anyone’s actions as immoral.

...

Although providing a thoughtful tour of previous work and offering a few novel arguments, Leland Yeager’s Ethics as Social Science ultimately fails in its attempt to rescue utilitarianism from its many flaws.  Precisely because thinkers of the caliber of Yeager, Mises, and Hazlitt were unable to expound the doctrine in a satisfactory way, I have come to conclude that such an exercise is impossible.

AJ:

Conza88:

AJ:

Conza, your quote from Long about normative, legal, and de facto rights seems to make the part I italicized a non sequitur, because property rights in Rothbard's statement, "You can't have free markets unless you have property rights," only applies to de facto rights, not normative ones.

Is Rothbard confused?

nirgrahamUK:

The way to tell a set of 'defacto' property rights apart from a set of 'defacto' nonsense, or 'not-property rights' is through normative understanding.

This doesn't address the point I was making. To recap, Rothbard said, "Any discussion of policy is inherently normative. You can't have free markets unless you have property rights."

However, property rights in Rothbard's statement only applies to de facto (Rothbardian) rights, not normative ones. But even if we must have de facto Rothbardian property rights in order to have free markets, that does not imply that Rothbardian property rights are normative. Hence the quote seems to be a glaring non sequitur.

Except it's not. This may make it clearer what is meant. It becomes fairly obvious there is no non sequitur. Policy deals with law, yes?

Law as a Normative Discipline - Murray Rothbard

If ethics is a normative discipline that identifies and classifies certain sets of actions as good or evil, right or wrong, then tort or criminal law is a subset of ethics identifying certain actions as appropriate for using violence against them. The law says that action X should be illegal, and therefore should be combated by the violence of the law. The law is a set of "ought" or normative propositions.

Many writers and jurists have claimed the law is a value-free, "positive" discipline. Of course it is possible simply to list, classify and analyze existing law without going further into saying what the law should or should not be.[2] But that sort of jurist is not fulfilling his essential task. Since the law is ultimately a set of normative commands, the true jurist or legal philosopher has not completed his task until he sets forth what the law should be, difficult though that might be. If he does not, then he necessarily abdicates his task in favor of individuals or groups untrained in legal principles, who may lay down their commands by sheer fiat and arbitrary caprice.

Thus, the Austinian jurists proclaim that the king, or sovereign, is supposed to lay down the law, and the law is purely a set of commands emanating from his will. But then the question arises: On what principles does or should the king operate?[3] Is it ever possible to say that the king is issuing a "bad" or "improper" decree? Once the jurist admits that, he is going beyond arbitrary will to begin to frame a set of normative principles that should be guiding the sovereign. And then he is back to normative law.

Modern variants of positive legal theory state that the law should be what the legislators say it is. But what principles are to guide the legislators? And if we say that the legislators should be the spokesmen for their constituents, then we simply push the problem one step back, and ask: What principles are supposed to guide the voters? Or is the law, and therefore everyone's freedom of action, to be ruled by arbitrary caprice of millions rather than of one man or a few?[4]

Even the older concept that the law should be determined by tribal or common-law judges, who are merely interpreting the custom of the tribe or society, cannot escape normative judgments basic to the theory. Why must the rules of custom be obeyed? If tribal custom requires the murder of all people over six feet tall, must this custom be obeyed regardless? Why cannot reason lay down a set of principles to challenge and overthrow mere custom and tradition? Similarly, why may it not be used to overthrow mere arbitrary caprice by king or public?

As we shall see, tort or criminal law is a set of prohibitions against the invasion of, or aggression against, private property rights; that is, spheres of freedom of action by each individual. But if that is the case, then the implication of the command, "Thou shall not interfere with A's property right," is that A's property right is just and therefore should not be invaded. Legal prohibitions, therefore, far from being in some sense value-free, actually imply a set of theories about justice, in particular the just allocation of property rights and property titles. "Justice" is nothing if not a normative concept.

Notes

[2] Ronald Dworkin, however, has pointed out that even positive legal analysis necessarily involves moral questions and moral standards. Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), chaps. 2, 3, 12, 13. Also see Charles Fried, "The Law of Change: The Cunning of Reason in Moral and Legal History," Journal of Legal Studies (March 1980): 340.

[3] The Austinians, of course, are also smuggling in a normative axiom into their positive theory: The law should be what the king says it is. This axiom is unanalyzed and ungrounded in any set of ethical principles.

[4] Again, these modern, democratic variants of positive legal theory smuggle in the unsupported normative axiom that statutes should be laid down by whatever the legislators or the voters wish to do. [Or market? Like redheads, eh? For what are consumers but more than one vote eh?]

AJ:

Conza88:

Do You Hate the State?

"Let us take, for example, two of the leading anarcho-capitalist works of the last few years: my own For a New Liberty and David Friedman’s Machinery of Freedom. Superficially, the major differences between them are my own stand for natural rights and for a rational libertarian law code, in contrast to Friedman’s amoralist utilitarianism and call for logrolling and trade-offs between non-libertarian private police agencies. But the difference really cuts far deeper. There runs through For a New Liberty (and most of the rest of my work as well) a deep and pervasive hatred of the State and all of its works, based on the conviction that the State is the enemy of mankind. In contrast, it is evident that David does not hate the State at all; that he has merely arrived at the conviction that anarchism and competing private police forces are a better social and economic system than any other alternative. Or, more fully, that anarchism would be better than laissez-faire which in turn is better than the current system. Amidst the entire spectrum of political alternatives, David Friedman has decided that anarcho-capitalism is superior. But superior to an existing political structure which is pretty good too. In short, there is no sign that David Friedman in any sense hates the existing American State or the State per se, hates it deep in his belly as a predatory gang of robbers, enslavers, and murderers. No, there is simply the cool conviction that anarchism would be the best of all possible worlds, but that our current set-up is pretty far up with it in desirability. For there is no sense in Friedman that the State – any State – is a predatory gang of criminals."

I found this vaguely disturbing. What does hatred have to do with scholarship? Yes, of course we don't like the State, but here Rothbard seems to imply that a good libertarian scholar should "hate [the State] deep in his belly."

Why Be Libertarian? - It's not so much a hatred of the state & status quo, but a love of liberty & freedom - a passion for justice!

Are you a Libertarian AJ? Why are you one? Is it for the "intellectual parlor game" perhaps?

AJ:

It's as if he hates the fact that his own rejection of the State is only his opinion. As if he hates the fact that natural rights are only persuasive concepts (very good ones!), but not logically necessary ones. Hence the overreaching with the flawed "proofs" of self-ownership, which I believe do a tremendous disservice to the whole libertarian cause by opening it up to easy logical criticism from the outside.

Except it's not [only his opinion], aren't [only persuasive concepts], are [logically necessary], not [flawed proofs] and don't [do a disservice to the libertarian cause].

E. R. Olovetto:

Rand and Rothbard are wrong on IP, or I could say that their takes on IP do not follow from the NAP. So, these folks are "Libertarian" still, but their prescriptions regarding IP don't conform to guidelines we would get as part of actual 'libertarian law'.

Thought it was worth pointing out that Rothbard would have acknowledged he was wrong. [28:45 - 30:35]

AJ:

Zavoi:

If it is indeed impossible to deduce a non-arbitrary legal code, then the only possible legal codes will be those determined by someone's arbitrary decree/belief. And in that case, it really would be impossible to distinguish, on the one hand, adherence to a particular legal code, from allegiance to a particular authority or institution on the other hand. A monopolistic legal system then becomes the only one in which universal agreement on a legal code is possible.

Very well put!

So my comments about Rothbard's conception being monopolistic only have force to those who reject objective or a priori ethics.

Except again, the word 'monopolistic' is completely devoid of reality and correct wordage when attributing it to the Rothbardian 'system'.

I'm guessing some folks don't believe in absolute truth? And as such, call systems that profess as such to be "monopolies".. on truth - would that be correct?

It seems like it is, to me at least.

Reply

Conza88 replied on Thu, Dec 3 2009 6:52 AM

rated by 0 users

Adam Knott:

And what about when they know the natural-rights considerations, yet choose to reject them?

You mean what happens when they reject self ownership? - I'm guessing they are in a performative contradiction? If they don't have a right to control, or own themselves, then who does?

"It may well be asked why life should be an objective ultimate value, why man should opt for life (in duration and quality).(5) In reply, we may note that a proposition rises to the status of an axiom when he who denies it may be shown to be using it in the very course of the supposed refutation.(6) Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life, he would have no business in such a discussion, indeed he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of his discussion, and hence the preservation and furtherance of one’s life takes on the stature of an incontestable axiom." - ETOL

(5)On the value of life not depending on whether it is perceived as one of happiness, see Philippa R. Foot, Virtues and Vices (Berkeley: University of California Press, 1978), p. 41.

(6)Elsewhere, I have written: “if a man cannot affirm a proposition without employing its negation, he is not only caught in an inextricable self-contradiction; he is conceding to the negation the status of an axiom.” Rothbard, Individualism, p. 8. Also see R.P. Phillips, Modern Thomistic Philosophy (Westminster, Md.: Newman Bookshop, 1934-35), vol. 2, pp. 36-37.

And if they reject property rights? - Well then they would have no political ethical objections to when they get killed, assaulted, or have their property stolen.

And should they reject them so they can rob and steal from others, then they again could have no objections when the same is done to them - as they would thus be guilty of special pleading.