By PieInTheSky
One way of looking at things would be that there are two spheres for each person: the individual – where one acts according to subjective preference – and the common – where the individual ones meet and sometimes come in conflict. Freedom to swing your fist, my nose, etc.
In each human society, such a conflict must be handled. Conflicts in the common sphere are generally covered by, as Bastiat said, The Law. The Law in this case is not legislation but a subset of morality, and it usually exists absent of a specific government, religion, or whatever. Libertarianism, and the final form – anarchy – are still human societies and as such they have The Law.
As a self-proclaimed libertarian, I believe in free people acting voluntarily to reach whatever their goals may be. I believe in a free market, in goods and services, and whatever people make and need. This all goes without saying, really. But of course, problems arise and one cannot be completely free in a densely populated world.
So what about justice, in the sense of implementing The Law? This is not really product, in the sense that is not produced, distributed, traded, stockpiled, and whatnot. You cannot go short on justice because you expect a weak justice harvest. It is a service, but one unlike any others. The free market, for it to be free, must be free from aggression. And this is where justice comes in. As such, it can be viewed as outside the market, due to everything in the market depending on it.
It can be viewed as just another component of the market, as it does cost resources in administering it. It usually has the characteristics of what economists call a public good, as in non-excludable and non-rivalrous. Justice should be available to all, and giving justice to A does not reduce justice for B. Philosophically, application of the law is the one service in a society that should not depend on wealth, status, or any other characteristic of an individual. As such, it is unlike other services.
Law which is not enforced is merely a bunch of suggestions, so each society needs a way to administer and enforce it – this is the goal of justice. Society – despite what many keep claiming – is not government, but in the case of justice, it is usually a government prerogative. Voluntaryists (what is it with politics and weird spelling?) and/or anarchists say this can be done better outside of government, all others see it as a core function of government, some as the only core function of government. But all flavours of political ideology accept rules and their enforcement, the how differs.
Any political view that sees a place for a government, from minarchists to socialists, sees justice as a main function of government, up to the only legitimate function.
The justice as the sole role of government can be seen in, for example, Kritarchy which can be interpreted simplistically as rule by judges. The origin of the word is in ancient Israel before the rise of kings, but modern versions are found, for example, in the Xeer system of Somalia. (You know the one, Somalia anarchy ROADZ or other such things randomly screamed at libertarians, although the areas of Somalia ruled by Xeer seem to do better than the ones ruled by government).
Kritarchy is a legal and political system associated with structures of polycentric or stateless traditional societies, based on customary rather than statutory law, and it is very often close to notions of natural law. Medieval Iceland is another example. To be honest, I do not see these societies as stateless. But this depends on the definition of state. Governance in one form or other always existed: clan leaders, tribal leaders, warriors, shamans, elders, whatever. But there has always been authority where there have been humans. And this authority was generally accepted and imposed. So when does this become a state? And when anarchy? Or is anarchy just extreme decentralization? People will live in communities, and those communities will have rules. I simply do not see an ancap world in which each has his piece of property defended by private security and private courts of justice. There would be at least HOAs and such.
The question is how is justice best delivered? Can there be a market for it, separate from or identical to the one for everything else? I don’t see it that way, not as a pure market solution, but something else.
Justice should be accepted and enforced. After it is pronounced, it is not voluntary any more. The nature of the courts aside, the ruling must stand. Pending appeal, of course, and if you happen to live in Italy, 7 years of trials later maybe there is a resolution. The only voluntary thing may be choice of courts. If the decision is not respected, the offending party must be somehow coerced, by imprisonment or being socially ostracized or something else.
Enforcing the law can be the purview of the courts, or of different organisations, more or less independent. Enforcement may have a market structure more readily. See bounty hunters for a quick example.
Whatever views on delivering justice, for me it is clear that the current system is broken, irrespective of the country involved. Some, as always, more than others. Justice should be a cornerstone of society, as such it must be fixed. Most likely a society with better rules and system of justice will require less ruling and enforcement, as people will more likely respect the law. A good society is one that generates little crime, not one that punishes effectively, and those two things are not always the same.
So what are the options? The way I see it, at least: government courts run by taxes or fees, private courts run like a regular business, Kritarchy style system of traditional courts. In Heinlein’s The Moon is a Harsh Mistress, if I remember correctly, parties in conflict simply agreed on a citizen, usually well respected by the community, to decide, and agreed to respect whatever he decided.There are disadvantages and advantages to, well, anything. In general, reality is only trade-offs.
Government has the advantage of a special legitimacy in the eyes of many people, which brings enough enforcement power. What it also brings is too much power, bureaucracy, politics in everything, lobbying, excessive legislation and overreach, and often a lack of accountability. It does not depend directly on money from the involved people, but money is always present in one form or another.
If a victim is dead or helpless and cannot pursue justice, justice can still be met, as government has agents for that express purpose, and this may not be the case in fully private circumstances. On the flip side, when a strong government commits an injustice, there is little redress for the wronged. Of course, many things influence government justice negatively: bribes, corruption, and politics to name a few.
Private courts of justice can end up more decentralized, with the risk of less uniformity and predictability. Their legitimacy will be lower and their enforcing power potentially more limited, with good and bad consequences. They must be to a point agreed upon by involved parties, someone must pay, and there must be some agreements between different private courts. Accusations of special interest might be stronger than with government, not really justifiably so, but nonetheless…
Citizens, ad-hoc courts, or juries have a chance to be less controversial and more acceptable than private courts. Get a few people of good standing who are invested in their community and have a ruling. Of course this would not be without controversy – nothing is really – and many will question their motives, integrity and capability – not being professional judges.
There can also be a hybrid system of private lower courts – this is often the case with mediation- and government as appeal courts.
My personal favourite form of justice is trial by battle, let the gods decide.
Justice in the end must be, well… just, lawful, universally applied, predictable, and generally accepted by the society. A system of justice like the asshole who is president of Philippines supports is not something to strive for.
Do I have a conclusion? No, this is mostly musing and thinking out loud, as I am a little on the fence about it. So, justice, how do you like yours?
Comments
94 responses to “Libertarians and the Law”
One of the other commenters recently said arbitration in the US was getting to litigation – like; how did that happen and is it possible for it to un-happen?
Can you elaborate on the problem, because it’s not immediately obvious to me what you mean.
I think its that arbitration isn’t final, that courts still accept litigation challenging the arbitration.
How many of those are because an arbitration clause was dumped into boilerplate contracts and one of the parties did not know they were agreeing to it?
Many?
Is that a legitimate excuse?
I think there should be some court oversite of artbitration, but it should be a very tiny percent of arbitrations that are so wrongly handled that the courts need to intervene. Just because you didn’t know you were agreeing to it doesn’t mean the arbiter wasn’t fair.
I have no issue with artbitration affirmatively agreed to by informed parties.
I am annoyed with the public for signing things they don’t read. This annoyance then extends to boilerplate contracts written in a manner that discourages their close examination.
This does not stem from any issue resulting from such a contract. I do read what I sign (usually). I may be one of the few people that has read a EULA…
I read all the paperwork on my first mortgage. I havent read a thing since then, I assume it hasn’t changed in 19 years.
UnCivilServant, I imagine you sound a bit like this dressing down the young whipper snappers at work:
Brochetta – I am the young whippersnapper in my office.
Hey, it says Liberty and Justice *for all,* so it’s time to share!
(response to the image)
And I thought only Cpt. Kirk liked the green ladies.
Star Lord disagrees.
The first impasse I see is an inability to agree on an arbiter…
Well, if an arbiter gets a reputation for ruling a certain kind of way… yeah, I can see that being a problem.
Hey Riven, in that last thread about not-even-wrong questions, the word you were looking for is Mu.
Good old fashioned public shaming comes into play here. And when that fails, vigilante justice is a powerful motivator.
Example – tribalism has set in. Group A’s “Respected Citizens” are despised by Group B, Group B’s “Respected Citizens” are likewise despised by Group A. Non-tribals are regarded as “squishy” or insufficiently objective (secretly part of other tribe, etc). Public shaming won’t impact either side as they are routinely subjected to similar smears by the other subset, and “Vigilantism” by one group would be interpreted as bare-faced aggression by the other. See – today in the US for a real life example.
I’m honestly surprised we still have residual faith in the institutions as they exist.
Well that’s how it was in The Moon is a Harsh Mistress. I don’t necessarily think it would work. I was just thinking of options
It works fine on the small scale.
I don’t think Heinlein ever delved too far into the population numbers but the total Loonie population was likely well less than a million and the population of Luna City was likely only in the 20k range. That makes it pretty easy to have a handful of people develop sufficient reputations as careful, thoughtful, and wise arbiters that everyone could agree to one of them.
Problem is what happens when you have a city with a population of 1 million and another 3 to 5 million in the suburbs/exurbs. Nobody is going to be both popular and widely respected enough for both sides to be able to agree to a judge
yelp reviews dude. No seriously. People once claimed that reputation effects only regulated small scale economies where all parties are mutually known. The internet has pretty much exploded that idea.
You think those are accurate?
I think there is a shitload of astroturfing and sabotage on there. Caveat emptor always applies. But as a general rule when I see a restaurant with a 4.5 star average over 2000 reviews it is a pretty safe bet I’m gonna enjoy my meal. When I see a seller with a 5 star rating over 3 reviews written in babelfish broken English, I tend to shy away.
The flawed system works pretty well and that’s for irrelevant shit like who sells good queso. If we had an arbitration based judicial system then the incentives exist for far more extreme vetting. For example I can then go read the other reviews written by reviewers to do my own analysis on which ones to accept and which ones to reject.
Furthermore, something that important will certainly cause the creation of independent licensing and rating agencies which provide another layer of information.
The other factor with current internet reviews is the silent majority. Most people do not bother to report one way or another. You get mainly people with very strong feelings on the matter.
so each side agrees to an arbiter of their choosing and then the two arbiters agree on a third arbiter.
That’s essentially insurance arbitration.
That’s not totally accurate. It’s appraisal, but in the same vein. You hire an appraiser. I hire an appraiser. They agree on an umpire, and away we go.
And you still get homered in Louisiana…after a hurricane.
Yes, sir! And the Rio Grande valley in Texas. I love our attorney meetings.
Adjuster – “This is open and closed. No coverage.”
Me – “Let’s check with counsel.”
Attorney – “McAllen? Let’s settle.”
Response to morning links thread:
Bottom 54% of counties have 7% of population
Top 2% of counties have 33% of population.
The same 54% and 2%?
Almost assuredly not.
I took the largest and smallest by population. I bet the lists are fairly similar, but I am sure there were a few murders in my 54%, so the list would be slightly different. And probably at least one county outside the top 2% snuck into the murder list.
7% and 33% are a floor and a ceiling, but probably not that far off.
Fair enough. A correlation between population density and crime rates is a well document (if not well understood) sociological phenomenon. Still, a murder rate of 0 per 10 million+ is a bit low, statistically speaking.
Well, it is probably about 54% of counties are murder free each year BUT NOT THE EXACT SAME 54%. So it isn’t 0 per 10 million, that is selection bias.
OT: White House fires its chief usher — the first woman in that jobTrump fired a minor member of White House staff, no big deal right? WRONG. He fired a black woman. Sad!
The comments are worse than you might expect.
Because this is of the utmost importance to the future of the country. Firing an usher. Brought to you by the same people who told us what a non-scandal Travelgate was.
Better then I expected, actually.
If I could place an emoji right now, it would be something doing cartwheels.
?♀️
Your black majick scares and confuses me.
Ye of little faith. Though admittedly some of the derpiest stuff I can’t find now because the derp is flowing into the comments section much too quickly to find them now.
No woman should be fired by a man
What if it’s part of a Dominant/submissive office fetish roleplay?
That’s exploitation of her internalized misogyny.
Hot.
Well then it sounds like she’s going to do whatever it takes to not be fired. Problem solved.
*tosses PieInTheSky his fedora and then winks*
I knew there was something I liked about you, kid.
Well that makes you and my grandmama
The problem is justice is just like that scale she is holding in the hawt pic above, a balancing of 2 forces until they are equal. You know they are equal because a line drawn across the sides of the scale will be parallel to the horizon, the problem with that is this…
https://pixabay.com/en/child-balance-optical-illusion-562735/
which line is parallel to the horizon?
In otherwords, whether the ruling is just (balances all factors appropriately) is purely a matter of perspective. A ruling which seems completely just to one observer will seem thoroughly unjust to another. Sometimes that will be because of self interest in the outcome to be sure, but often because of differences in experiences, knowledge, or values.
The key is not for the ruling to be “just” but for there to be a general acknowledgement that the ruling was decided in the most fair, consistant, and dispassionate manner possible.
Also, trial by combat only works if you presume either that might makes right (in which case we’re all Warty’s bitches) or in the existance of gods who actively intervene in such affairs in the name of justice.
Well i hate to say it but one form or other of might makes right rules the world. Off course trial by battle is a bit of a joke. Also dibs on warty as my champion
One end of that pole is resting against a floor, so we can ignore it. With the pole’s extra contact point, the kid need not be standing upright to avoid falling over. And of course anything painted on a surface is just pigment. Barring additional evidence, I’m going to start with the plane of the floor is level at an 80% confidence level.
Might makes right only doesn’t work when you assume that the end goal is actually justice or…rightness.
The end goal is usually order. Preferrably predictable order, but not always a given.
Justice is an abstract thing people muse about and claim they wish they had. Most people are happy with order.
I agree a lot prefer order or stability as a main goal but people like to thibk their view of order is also just
Are you offering the world order?
To be honest I think I would make a decent supreme dictator
Well my end goal would be justice but sadly it does not seem to be for most
Alternate theory: all alterations will be resolved with trial by combat, regardless of severity. The combat will take the form of a duel at 1 yard apart, with 12 gauge shotguns as the weapon. If you do not have a shotgun, one will be provided for you. After many deaths, society realizes that they are now in a collective MAD scenario where the only winning move is to not play. The NAP I’d embraced by all, not as a moral stance but a survival imperative. Step 4: ??? Step 5: Libertopia, and the commensurate profits.
God damned phone, making me look even dumber than I am. I don’t need help with that, Samsung.
I prefer my tailor to resolve my alterations!
I don’t see how that can be distinguished from the status quo. The sine non qua of the state is a monopoly on force. Thus, in order for a state to continue its existence, it needs to be the mightiest force around. Every single one of its decisions and mandates are ultimately backed up by force. If you go in front of a judge in small claims court and the judge doesn’t rule in your favor, what happens if you don’t pay the judgement? First, you may receive a warning. If you still don’t respond, then the state has claimed the right to garnish your wages or seize your property. If you attempt to obstruct the state in doing so, armed agents of the state are deputized to use whatever physical force necessary to detain you so that they may enter your property and seize what’s inside. If you display even a modicum of resistance, those agents are allowed to use their judgement as to whether or not they can apply force, up to and including, deadly force to subdue you.
Well, under the current system, when a dude that looks like a WWE guy rapes my wife, I have recourse. Under Might Makes Right, I may have trouble bringing him to justice.
Or shoot the guy and head to the mointains befeore his brother shoots you. Works like that in Albania
And Latvia. Remind me of story from there. Soldier is go to Latvian man home. Rape daughter. Kill dog. Shit carpet. Latvian man say why are you rape my daughter. Soldier give man potato. Good day for man. But potato have worm.
I actually like trial by combat. Historically it can only be demanded by the accused, and I see it as an excellent last ditch option. In certain societies, like say ours for example, the investigative and judicial apparatus are total garbage. When you’ve been systematically railroaded by the cops, the prosecutors, the judges, etc and there is no way for you to fight the system then trial by combat allows you one last throw of the dice to try and find a way out. Victory or Death motherfuckers.
For UCS:
Comparative Advantage
Although it is a great example of comparative advantage, I hate the quote at the end, as it is an even greater example of Lennon being an ass.
never mind the Loya-Jirga, but seriously, did this piece actually say something congratulatory about HOA’s? i can’t get past that part.
I despise home-owners’ associations almost as much as I despise the zoning board. It is my house, stop trying to tell me what I can and cannot do to it.
One law I actually favor is one that limits deed restrictions in time. I would go with one generation, so 25 years. If you want to update at any time, feel free, but you can’t commit the “land” for more than 25 years.
Not congratulatory but inevitable more like it. Hoppe had a thing about ancap being comunities with strict rules in which undesirables would be removed
AND WHERE YOU CANT PARK ANYWHERE
fuck that
Point to where the hoa touched you
In the wallet.
HOA’s suck
didn’t Reason do a piece on them a while back? or at least there was a piece which devolved into some megathread where everyone told HOA horror stories. It was a thing. Maybe it was this one
Well there aint such thing in romania. Some people bemoan the weird ununiform haphazard houses and yard but i prefer it this way to imposed uniformity
I loved our neighborhood HoA a couple rentals back. Never addressed the asshole frat boys screaming in their yard at three in the morning, but if you parked on the street to run inside for a minute they were all over you.
yeah, that’s sort of a typical example of the sorts of complaints you’d hear = extremely (overly?) effective at policing petty violations about things no one complained about…. otherwise useless @ dealing with complaints people actually had.
In theory there is nothing wrong with HOA’s.
In practice they ALWAYS end up being run by the most stuck up power hungry anal retentive assholes in the community because they are the only ones who get a rush out of taking on the responsibility and they end up turning the whole community into a hellish combination of Hazard County and Maoist China.
In theory …
THICC and also contemptuous.
Best response:
12h
Hart Noecker @HartNoecker
Replying to @_Emperor_Ming_ and 2 others
Sexbots sexting your teenage daughter while ignoring you is surely the cyberpunk dystopia we were warned about.
I liked:
“Sexbots are too slutty and why that’s a feminist issue” – Jessica Valenti
God, why did I read the comments?
Morbid curiosity?
https://www.youtube.com/watch?v=wtfjzmYZvTw
Nice.
I got me a Cherry 2000 model on order
It’s 2017, so I hope you got a good deal on a unit running Windows 98 since it isn’t supported any more.
Oh while we are mentioning TMIAHM and laws we would be remiss if we did not bring up Professor De La Paz’s Rational Anarchy concept.
–“A rational anarchist believes that concepts such as ‘state’ and ‘society’ and ‘government’ have no existence save as physically exemplified in the acts of self-responsible individuals. He believes that it is impossible to shift blame, share blame, distribute blame… as blame, guilt, responsibility are matters taking place inside human beings singly and nowhere else. But being rational, he knows that not all individuals hold his evaluations, so he tries to live perfectly in an imperfect world…aware that his effort will be less than perfect yet undismayed by self-knowledge of self-failure.
[…]
“My point is that one person is responsible. Always. […] In terms of morals there is no such thing as ‘state.’ Just men. Individuals. Each responsible for his own acts.””–
Given that none of us are ever likely to encounter anything resembling the libertarian society of Luna in the book this is probably the best approach we can take to living our ideals as summed up in the Professor’s words…
–“I am free no matter what rules surround me. If I find them tolerable, I tolerate them; If I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do.”–
The professor was a huge influence in my eventual shift from minarchist to ancap. Rothbard’s Ethics of Liberty were pretty instrumental too of course, but fiction often has a way of distilling philosophy in just the right way to make it click.
Professor de la Paz was pretty obviously based on Heinlein’s neighbor and good friend Robert LeFevre, whose audio series did much to convert me away from Goldwater conservatism to anarchism.
TO be honest I don’t think I can point to one major influence in my thinking. Just lots of bits and pieces gathered over the years
Rothbard vis a vis Hans Hoppe with a dash of Stefan Molyneux, convinced me to go full ancap.
So, justice, how do you like yours?
Like I like my women. Arbitrary and capricious.