A Robinson Crusoe-Based Sociology of Law
An essay by Hans-Hermann Hoppe explains that for Robinson Crusoe, an isolated castaway, "the question concerning rules of orderly human conduct," of social cooperation, "simply not arise," but when "Friday, arrives on the island," Crusoe, for the first time, must interact with others, either competing or cooperating for scarce resources.
As conflict is possible, they need to maximize their interactions' efficiency, meaning they must act rationally to survive and not deplete their scarce resources, for which they have two possibilities: either come into direct conflict, a primitive war caused by scarcity, or cooperate to maximize their use of the few resources they share.
David Dürr theorizes this potential conflict is the first legal source for Friday's presence on Crusoe's island, threatening with scarcity, is "a dynamic phenomenon … a world in movement and in change," of which law as a "side effect" is "articulated within a conflict of colliding and therefore incompatible interests," emerging "under certain situations" as "some reaction, some need that appears if there is a conflict to be solved."
Using Hoppe's argumentation ethics, both Crusoe and Friday are capable for rational action guided by subjectively valued needs, so they can rationally derive property rights from their bodily self-possession, meaning there may be some symbolical arrangement for land or resources division, determining objective links over goods or places to maximize and govern through rules their interaction without affecting the other's property rights, looking to avoid what would be certain conflict without them.
Moreover, according to Ludwig von Mises,
human action is purposeful behavior … will put into operation and transformed into an agency … aiming at ends and goals … the ego's meaningful response to stimuli and to the conditions of its environment … a person's conscious adjustment to the state of the universe that determines his life.
This proves that such an arrangement between Crusoe and Friday has a clear objective: to avoid conflicts in which they would be involved otherwise.
Michaël Bauwens develops a similar idea on the origin of rights as "the existential situation that gives rise to an inquiry into the nature of rights and of law, is a conflict between at least two persons," where Crusoe and Friday's arrangement to solve their argument creates a mutual normative statement, based on their recognition of reasonability to agree without the need to engage in violence.
They could argue for different solutions, each trying to maximize their respective advantage, leading to precontractual arrangements as defined in contract theory where an agreement is the mutual assent manifested by two or more persons and a bargain is an agreement to exchange promises or conducts, but strictly speaking, a contract is "an agreement between private parties creating mutual obligations enforceable by law," whose basic elements required for its legal enforcement are "mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality."
The validity of offer and acceptance and the legality of the contract itself could be discussed within a purely free-market framework, but if the agreement cannot be enforced, it could not be a contract, per se, but that could also be disputed according to international relations theory, where states behave as individual parties, signing treaties without anyone to enforce them.
According to the Realist School, a number of nonlegal conditions determine the ultimate ends of treaties, given there are larger powers, with bigger territories, more resources, more manpower and firepower, and smaller states, inferior in those categories.
Treaties signed between similar states, powers or not, are backed by fear of retaliation and resource-depleting war, but in treaties between powers and small states, there is an element of power from the former to the latter that makes it bow out of fear or necessity.
In many such cases, treaties involve protection for the smaller state and trade advantages for the power, and powers usually act as mediators in conflicts between smaller states with which they have unequal agreements, as their standing is better than those of them.
Taking this back to Crusoe and Friday's, who could be in equal conditions, they could make infinite arrangements, agreeing and bargaining an infinite number of rules, but as long as there is not a third party in the island, these agreements would lack the necessary element of enforcement, and their only guarantee of fulfillment would be fear of mutual destruction in case of breach.
For the sake of argument, let's introduce a third character in this thought experiment, named Selkirk (the real-life Robinson Crusoe) but as Crusoe and Friday get into another conflict, they now know a third person is on the island and can be called to comment on their conflict, either agreeing with one or the other, or simply provide with another perspective on it.
Both reasonably want their position to be upheld by Selkirk: their goal is for their perspective to be enforced to the other party, which they cannot do themselves, for violence by either of them invariably means a conflict whose only certain outcome is destruction of their properties, their bodies or both.
They agree on asking Selkirk for his opinion on the matter because both think he could become an ally to forcefully impose their perspective by mere numerical strength, an a priori knowledge that various people are stronger than one, and because they want to externally legitimize their perspective.
Selkirk, as a third party to their conflict, is in a difficult situation without a clearly defined role: is he being asked to give comment on the conflict, or solve it in favor of one of the parties involved?
He can become an enforcer of an individual perspective, an announcer of the one he judges the best, or a larger intervener, deciding new rules for the parties by himself to better organize their interactions and prevent potential conflicts, reflecting three different powers: as judge, enforcer, and rule maker. The judge role is obvious, declaring what he considers is fair regarding the parties' agreements, according to his own reasonable judgment and factual perception applied to the circumstances presented to him.
Enforcement is also straightforward: execute the parties' agreements and make them be upheld in their conditions, backing it with physical force, as the term implies, in case one of the parties does not want to fulfil his duties.
Finally, rule making externalizes into Selkirk the power to define rules for the parties to govern their interactions, allowing him to impose provisions for them to follow instead of the ones they originally had agreed.
These roles overlap into Montesquieu's idea for the separation of government powers, where enforcement, given its affinity with force, falls into the executive, judgement, for its reasonability and factual interpretation, falls into the judiciary, and rule making, external but binding to the parties, falls into the legislative.
Of the three, the only voluntary one is as judge, for Crusoe and Friday agreed to ask Selkirk's reasonable interpretation as a reactive intervention in case of conflict, and on judges, according to Bettina Bien Greaves, Mises considered that
if people enter into a contract, if both parties decide that something must be done immediately, there is as a rule no reason for any disagreement between the parties…. But if people don't comply with their voluntarily accepted agreements, then the government has to interfere … in order to prevent individuals from resorting to violence.
Crusoe and Friday voluntarily agreed to call Selkirk to intervene and judge their conflict reasonably, for they know that if their disagreement keeps heating on, violence becomes imminent, endangering their possessions and themselves. Consequently, Selkirk's intervention is justified and legitimized as a deescalation measure, in which they need to convince him of their perspective on the conflict and make him to back their cause to impose it on a numerical basis with potential for enforcement.
Their reasoning is simple: to engage in direct action to enforce their positions would be counterproductive, for the possibility of damage to their bodies and possessions is not enough incentive to put them in danger for a mere disagreement that can be solved through more cost-efficient rational argumentation in presence of a third party called in to be convinced and lean towards the most reasonable argument presented.
And as Selkirk is ignorant of the facts behind the conflict, he must be convinced by his fellows' arguments to agree to their respective interpretations of the conflict and stand for them in their potential confrontation for what each considers is their fair right. Selkirk's position as a judge comes from Crusoe and Friday's rational need to legitimize their self-interested agreement interpretations, making it praxeologically derived, as it was established by the parties' will to call in a third person to rationally judge their issues.
This was a conscious action engaged towards for a subjectively chosen goal: resolving their conflict, either accepting his judgement, or through the potential enforcement of the agreement by two combined forces. It also makes it legitimate as completely free and voluntary: all conflicting parties have rationally agreed to call him to resolve the conflict presented to him through his factual interpretation, and the judge himself has agreed to intervene.
He was not compelled, his election resting on the parties' agreement to call him, engage in argumentation and reasonably convince him of their perspectives instead of physically fighting for a claimed right. This also makes his potential enforcement legitimate, as the parties called him to convince him with their arguments so that he would back them in case they needed to physically enforce the original agreement as interpreted by the convincing party, a situation Selkirk also agreed when he accepted to intervene.
However, enforcement is secondary to the judge's decision, only needed in case the unconvincing party does not abide to his part of the agreement or to the proposed resolution of their conflict, and two combined forces are needed to make him abide, something not directly but potentially necessary. If force is not initiated, neither by Crusoe and Friday nor Selkirk, in his role as judge and enforcer, this provision of justice would be fully voluntary and legitimate, for all involved parties have agreed to it and know they are meant to resolve whatever conflict is at hand, with conditional and avoidable consequences of physical enforcement in case one decides not to abide to the agreement nor to its resolutory interpretation.
Finally, Selkirk could assume a rule-making role when called to resolve a conflict, creating new rules for Crusoe and Friday, with an enforcement capacity under the same previously described conditions, but exceeding the power granted to him to simply interpret and reasonably solve conflicts, as he would impose different rules than the original agreement. The distinction between judge and rule maker is the first finds natural law rules out of his reasonable interpretation of the conflict's facts, whereas the second, out of his own standing in the conflict, directly creates and imposes rules to the parties, who become subject to his provisions.
This kind of rule making is rare, for in complete freedom, the conflicting parties are rule makers, defining their rules for social cooperation, based on efficiency and profit maximization for their interaction, trying to uphold them to avoid costly conflicts that would be counterproductive for them.
So, unless the parties ask this third person to create rules for them, they would try to keep this power for themselves, as they trust more themselves than an external agent, but it can happen that they trust more his guidance to define their rules given his standing, his additional knowledge of similar issues, his ignorance of their factual situation, or all these conditions, but they must still agree to contact him and become subject to his provisions.
Rule making, as presented here, could be controversial, for the same person creating the rules would also judge and enforce them, combining these powers in the same hands, a troublesome arrangement once applied to a larger social situation.