dinsdag 19 januari 2010

Lange post op mises forum over 'the law'

Maar enorm interessant!

Hier vind je hem. Enkele highlights.

Hoppe’s argument suggests that there are two conditions for the existence of interpersonal conflict: more than one person and scarcity. There seems to be many forms of conflict which do not originate from scarcity, such as debates over metaphysics or religion, which may even go to fists. However, law is concerned only with real (physical) conflicts. Until a verbal argument goes to fists, it is not a real conflict. Law, in a private law society, is not concerned with resolving moral or metaphysical disputes[5].

Property becomes owned through original appropriation. Original appropriation is the rule of first use: the first to use an otherwise unowned resource thereby becomes its rightful owner. If I am wandering through unowned wilderness (say, a thousand years ago when much of the Earth’s surface was unowned wilderness) and I pluck an apple from a wild apple tree, the apple becomes mine because I am using it and I am the first to put it to use. It is clear that use of unowned resources constitutes an improvement of social welfare since no one is hurt by my consuming the apple yet I am helped thereby. Since physical objects exist in a context of space and time adjacent to other physical objects, they are entangled, that is, how I use this physical object may affect some other physical object to which I do not have a property claim. Defining what constitutes valid or justifiable uses of physical resources is part of the problem that law solves.


But property or any other conflict-avoidance strategy is imperfect because it is impossible to foresee the future or divine all possible consequences of following a certain conflict-avoidance strategy. No rule can, in all cases, prevent conflicts from ever arising. Hence, conflicts are inevitable.

Property conflicts arise as a result of unilateral changes of property boundaries. The voluntary redrawing of boundary lines obviously results in an improvement of the human condition. But since I can always be materially better off by unilaterally redrawing the boundaries of property to give myself more at the expense of others, I am motivated to do so. Real conflict results when individuals act according to the incentive to unilaterally redraw property lines. The definition of real conflict is unilateral redrawing of property boundaries.


It is safe to assume that parties to a legal dispute are primarily motivated by adversarial self-interest. The US legal system makes this presumption very explicit. Given that the parties to the dispute are only in court to avoid physical conflict, in a private law society, this is not a very strong assumption. But this assumption leads to the breakdown of both the natural law (Rothbardian) and positive law (Friedmanian) approach to anarchic or private law. Friedman presents the case that anarchic law leads to the best or most efficient outcome for society. That is, Friedman is arguing from the point of view of social justice or social welfare. But this approach assumes that the individual cares about social welfare. That is, by presenting his arguments for anarchist law in the frame of how it improves social welfare, Friedman is assuming that the reader – and by implication anyone who is trying to ascertain what the law is and ought to be – cares about social justice or social welfare. This may accurately describe the typical, liberal academic but those most affected by the question of what the law is – real participants in real legal disputes – are not likely to share the same proclivity for social justice wherever it conflicts with their own interests. Since law, in a private law society, is the production of voluntary, non-violent resolutions to real disputes, only a definition of law which is acceptable to adversarial, self-interested individuals will suffice.

Rothbard argues from the point of view of natural law, starting first from the physical fact of an inalienable will in the living body and reasoning in the Lockean fashion from this fact to property rights in the body and thence to the preconditions for the body’s continued existence: standing room, air to breath and liberty to appropriate unowned natural resources or to utilize the body to produce and exchange for vital necessities. Leaving aside the potential technical problems within the natural rights arguments, there is a greater deficiency vis-à-vis applying natural rights to law. In a legal dispute involving a clear aggressor and a clear victim, the aggressor has already exhibited a disregard for morality and human rights. The purse thief is hardly concerned with the fact that his actions are immoral or violate the rights of his victim. Hence, it is of no use to expound upon his violations of natural rights. As with Friedman’s approach, Rothbard’s approach fails because it is not applicable to real disputes. That is, Rothbard’s definition of law is not useful to real individuals involved in real conflicts.

(Kleine opmerking; 'k vind zijn punt hierboven over Rothbard niet sterk. Ik snap wat hij wilt zeggen - 'mensen zijn niet gemotiveerd door Rothbardiaanse of Friedmaniaanse overwegingen' - maar dat betekent dat het Friedmaniaanse of Rothbardiaanse argument niet correct (kunnen) zijn.)

So what is the law? Law is the alternative to violent conflict when conflict-avoidance strategies (such as property lines) have failed to avoid conflict. In terms of rights in property, law is the production of new, stipulated property-lines which resolve real conflicts without further violence.

This definition immediately raises the question of how disputes can be resolved between asymmetrically powerful parties. In modern law systems, the aggressor (accused) has an incentive to resolve the conflict with his victim by means of law because the state will immediately retaliate against the accused for failure to comply with a court trial. In other words, the state offers the options of non-violent dispute resolution or immediate, overwhelming retaliatory violence (appear in court or be arrested or possibly even killed for failure to comply). In a stateless society, it appears that an aggressor would have no incentive to seek non-violent resolution of a dispute with his victim. After all, an aggressor usually will not attack unless he reasonably believes he can get away with the attack in the first place. That is, he has already calculated that he can win a martial contest with the victim.


Since the court, in a private law society, is only selling its services as a mutually agreed-upon decision-maker, the rules which emerge governing what is justifiable violence will be those decisions which have in the past succeeded in settling disputes. That is, case law emerges out of the chaos of innumerable disputes and attempted resolutions of those disputes. Both the natural law and positive law approaches agree that a body of precedents will emerge from non-violent resolution of real conflicts in a private law society and that it is this body of decentralized dispute-resolution which becomes law per se. Rights and general laws emerge from the pattern of successful resolution of past real conflicts by non-violent means, just as common law developed in England and the US prior to the creation of legislatures.

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