Even the staunchest free-market economists have unwisely admitted that laws must be created by governmental legislation; this concession provides an inevitable gateway for State tyranny over the individual. The twin of the free-market economy is not a democratic legislature, but a proliferation of voluntary rules interpreted and applied by experts in the law.
Rothbard’s review of Leoni, a first-time online publication. FULL ARTICLE
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I discuss similar issues in my 1995 Journal of Libertarian Studies article Legislation and the Discovery
of Law in a Free Society (a condensed version was published in The Freeman as Legislation and Law in a Free Society). Note: I have since changed my mind on the some of the issues regarding the Hayekian “knowledge problem” and Leoni’s work in this regard, as I have noted in subsequent articles, such as the Knowledge, Calculation, Conflict, and Law review above, footnote 5; see also my post “Knowledge and Calculation.” Oh, that I had heeded Jeff Herbener’s comments on an earlier manuscript, but I either got these comments too late, or did not fully appreciate them at the time).
I’ve noted previously that the reliance on legislation is one of the problems with intellectual property–this is why defenders of IP have to be in favor of the state and legislation as a source of law. See, e.g., the posts Regret: The Glory of State Law; and Inventors are Like Unto …. GODS…...
The law is an instrument of social accountability, insuring that those who choose and action, reap the consequence (good or bad). Since we live in an action precedes consequence reality, the law, in its true interpretation in independent of any philosophy except reality and, legislation, to the extend it is inconsistent, is illegal. So, no, law does not require legislation (or legislators). It does however, require an aware citizenry.
Rule of Law:
http://www.nazisociopaths.org/modules/article/view.article.php/c1/34
Bill Ross
(Electronics Design Engineer)
It is a problem of scale and efficiency. Very few families publish their legislation. Most every small church publishes its legislation. Why? Because it simplifies life in that specific community.
It is assumed that every member of every community is familiar with its legislation. When I was working I read and had a good understanding of the Seattle Municipal Code. I had a fair understanding of The Revised Code of Washington. Federal legislation? You gots to be kidding. This is the only country in the world where the majority of the workers hire a professional tax person to pay their taxes for them.
It is time for the US to break up into 50 sovereign nations under one trade and mutual defense pact.
@billwald
Scale and efficiency is a misleading way of looking at the problems. Our masters insist on hierarchical (top down control) organization of civilization, so corruption at the top corrupts our entire civilization. Freedom and survival demands that we return to bottom up (from the people) command and control.
Learn how to think (and fight):
http://www.nazisociopaths.org/modules/article/view.article.php/c1/33
Early in the article, Murray Rothbard mentions Leoni’s great contribution—that there is an alternative to accepting either administrative law or legislation. Of course, he concludes that the happy alternative is the continual interpretation and application of a libertarian law code by experts and judges in privately competitive courts.
Unfortunately, I don’t see any signs of free enterprise courts interpreting and applying a libertarian law code on the horizon. My belief is we may have to arrive at that event one step at a time. First, enough people have to understand the laws of human action for there to be an incentive to consider the political philosophy of Libertarianism. Second, we need an ideological revolution—one powered by libertarian philosophy.
Since it appears politicians and altruists, with the support of the voters, will continue to saddle us with administrative law and legislation I have one suggestion. We need a constitutional amendment that strictly forbids government from interfering with any voluntary exchanges between two or more individuals. It will also forbid any interference with all personal behavior and individual actions as long as these individuals are not forcing others into involuntary exchanges with these actions.
I am very grateful for this book being brought to my (our) attention. It sounds like a very thought provoking work. In 2011 I hope to publish the fourth book in the divine economy theory series and its focus will be justice!
There can be no doubt that justice is a vital theoretical and practical aspect of a classical liberalism civilization.
I do agree with Mr. Rothbard that law does not need to be dictated by a state.
However, I think he needs to clarify this statement, “Our problem can be solved, however; a cogent criterion does exist for the content of libertarian law. That criterion defines coercion or constraint, simply, as the initiation of violence, or the threat thereof, against another person.”
First of all, coercion or constraint can only be taken against an unwilling participant. There is nothing wrong with harming another that wants to be harmed.
Second of all, I think a better statement would be, “one should not violate the property of another without their consent.” Technically speaking, coercion and constraint do not necessarily cover theft.
The Rothbard article explains nothing! He’s say the standard ‘not to use force&fraud’ and ‘private courts’ which gives nothing as to what this would really mean. I do believe there is one hell of a difference between an arbitration court dealing with two parties who want a speedy but fair resolution (or if one party is shown to be in the wrong that party would settle) versus a criminal court dealing with one violent party who has no intention of complying with a system that has no final forceful authority?
Starting from the point of ‘innocent until proven guilty’ does a private police force detain a suspect? Even if they can’t arrest a suspect but by what right do they say “don’t leave the town/county/country”? What happens if the suspect won’t appear in a private court yet the court can’t proceed because you can’t try a person in their absence? What happens if you can’t force people to testify or can’t force people to truthfully testify? By what authority can a private court arrest and jail (or execute) the guilty party? Or, at the very least, if the guilty party ignores the ruling because it’s just a private court which has no real authority as it’s an abritration business?
The ability to forceful detain people and hand out punishment requires the forceful final authority that is sovereignty and if it isn’t held by the ‘state’ it is held by the private landowners, but that would only make the landowners ‘micro-states’ in themselves starting the circle all over again.
Gil,
To Hobbes or not to Hobbes? Of course no one wants to submit to authority, whether innocent or guilty. That is a given. The greater problem is the existence of a ‘final forceful authority’ like state power. People in state positions will have an extra special advantage in trying to evade fair adjudication. Of course, the market does not guarantee just outcomes but ensures the greatest likelihood that just outcomes will happen. It is the off-setting of entities that will tend toward keeping antisocial forces at bay. To bring a non-statist legal framework into being the general attitude of the populace will have to change somewhat- but surely it is possible to believe in property and contract without having the specialized knowledge of Mr. Kinsella, right? HH Hoppe said that the Hobbesian myth has been the most damaging of all to Western Civilization. I guess the time time to start debunking is now.
Well Reason, like Rothbard, you give nothing about what ‘free’ justice would look like lest it simply mean property owners shooting dead fence-jumpers or property owners cartelising to form an oligarchic state.
Gil,
What cartel or monopoly ever formed without the state? Isn’t the state itself a kind of cartel?
Peaceful settlement and dissuasion of crime might happen via memberships in competing insurance/judicial agencies- as well as counter and ancillary agencies. What if Client A’s organization, be it his/its employer, insurance company, mutual aid society, or some new invention, already had an existing agreement with an agency/org representing Client B, the entity in conflict with the Client A? What if these agencies’ agreement had clauses of ‘if this, then this’ to cover their clients’ potential issues? What if these agencies had agreements with other entities that insured them against the default of the said agreement? Could not mediation or adjudication take place?
Agreements intertwining a market society could grow to reach an incredibly high level of simultaneous efficency, time-tested precedence and innovation.
The web of off-setting contingency contracts between entities, whether in justice or any endeavor, really disincentivizes violence. In the absence of the ideology that supports a monopoly force like the state, a state would not likely form. Any entity that tried to form a state would have think again. It would have to resort to violence in order to overcome a mounting coalition, contracted or otherwise, in opposition. It also would be proposing to risk its members’ capital in a way that might cause a decline in membership- and revenue. Importantly, by building a militaristic force the aggressor puts itself in jeopardy of overthrow by the very force it created!
Microsoft, in all its financial and intellectual might, could not get away with creating state power without losing itself. Nor would this giant need to resort to violence to continue its success. The same goes for people/orgs that want to shoot fencejumpers. Social context becomes real. The market is civilizing.
In many ways, a market in the services that courts are supposed to provide solves the problems of Madison’s Fed #10 while keeping the best part: competing entities. A stateless society would be shorn of a monopoly force to compete for. Certainly, your fear of oligarchic tyranny by property owners is real. But shouldn’t your lens be pointed at the current regime in command of more resources than any entity ever? I do believe that less than 50% of murders in the USA end up with the perpetrator going to jail. So much for Hobbes.
Who knows what exact forms judicial organization will take? The nature of liberty is such that the details do not have to be known beforehand. Having the right theory- testable by reason- as Rothbard states, will most likely yield the right results.
cheers
So like Rothbard you’re just pottering around with a perfect world on paper, aren’t you Reason? By perfect on-paper Rothbardian logic ‘the state’ could come not into existence yet the real world is the exact opposite! Oopsies!
The state is a consequence of bullies who co-operate to keep the productive enslaved and terrorized of dissent. Rule of law and property rights once solved this problem and allowed us to build the civilization we are bound and determined to destroy.
Now, criminals (those who use force and fraud to achieve goals) are completely unfettered by anything except natural law. This is resulting in their demise, as well as ours, Easily proven:
http://www.nazisociopaths.org/modules/article/view.article.php/c1/32
To understand the basic methodology of the truly large criminals throughout ALL of history and why we cannot survive on the current path (and how to fight), read this:
http://www.nazisociopaths.org/modules/article/view.article.php/36
Actually Gil, I am describing the basis for dealing with an imperfect world in a way that has no utopian assumptions or expectations. Mises wrote in The Ultimate Foundation of Economic Science,
“The characteristic feature of all utopian plans from that of Plato down to that of Marx is the rigid petrification of all human conditions. Once the perfect state of social affairs is attained, no further changes ought to be tolerated.”
I may have my own particulars to impose on the world but by resorting to violence I would be just like the animals working the system now- no matter what high and detailed rhetoric I spout.
That law is discovery and not legislated is an observation that cannot be downplayed. Cicero said, according to Mark Skousen:
“True law is right reason consonant with nature, world-wide in scope, unchanging and everlasting…..We may not oppose or alter that law, we cannot abolish it, we cannot be freed from its obligations by any legislature….This law does not differ for Rome and for Athens, for the present and for the future, but one eternal and unchanging law will be valid for all nations and all times….He who disobeys it denies himself and his own nature.”
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