Libertarianism, Natural Order, Property and Law


David Davis (the text comprises comments by Ian B lifted from thread on this line.)

I think the visual presentation needs a bit of work… (Ian was referring to the first LA “Question Time” here.)

Just as I am listening, I have paused the playback to type this, we start with John Kersey offering that libertarianism and conservatism are not ideologies, but socialism is. Instead he offers that the first two in some way reflect a natural order. I find this problematic.

Everyone tends to think, or likes to think, that their own preferences and beliefs are natural ones; just “plain common sense”. Socialists believe this too, as do progressives. The natural feeling is that when confronted with something else, that the other thing is artificial, a corruption, distortion or perversion (or just plain barmy) so that in promoting one’s own values one is not simply another competitor, but rather one is “revealing the truth” or “revealing that which lies beneath”- i.e. the natural order.

For instance, many socialists- going back to old beardies like Keir Hardie- have opined not unreasonably that property ownership is an invention and not part of the natural order. They too see (and saw) their socialist project as returning man to a more natural state- perhaps most overtly today we see this with the Green Left – stripping away the artifice of modernity.

I really don’t think this will do. The basic human “evolved” lifestyle is to live in a small tribal band, have a collective territory and a few scraps of personal property; resolve disputes by direct and frequently fatal violence; marry most girls to the tribe’s alpha males right after puberty; consider anyone outside the tribe to be not really human and an entirely valid target for plunder, murder and rapine; subscribe to a suite of taboos which we would consider as bizarre as they would consider ours; and worship the spirit force of your dead ancestors with ritual and sacrifice.

Beyond that, nothing is the natural order; and abolishing, with enormous effort, most of that natural order has been the great triumph of the West.

Perhaps the closest thing to “no ideology” would be some kind of atheist liberal – by a liberal I sort of mean somebody who believes in largely keeping oneself to oneself without the dizzying ideological edifices of theory that comprise most of intellectual libertarianism, such as “natural rights” structures, anarcho-capitalist-whatever, anarchism, and so forth.

But really any of us interested in this beyond the idle nose-picking level is an ideologist, and we should be at least honest about that. I’d also add that as a libertarian (or nose-picking liberal) who is not a conservative, from my perspective, much of what conservatives take for granted as everyday and natural, I often see as very strongly ideological motives and policies, even if they are somewhat tempered by the hope that they can be achieved in civil society rather than via the State. Whether or not going to church or no sex before marriage (for instance) are good ideas, they are very clearly ideas which are not spontaneous or part of the “natural order”, but rather part of a deliberate considered rule system.

And I’m only four minutes in, haha! (Ian carries on…)

Okay, property rights. I think the answers here are poor. They are the kind that are convincing to people who are already libertarians (at least at the anarchist end) but not to non-libertarians. The problem which is not addressed here- and is frequently handwaved- is how you definitively decide who owns what.

States for most of their history have primarily been property referees and defence (war) agencies. Other functions have accrued later. The State, as it stands, has hegemonic violence. This means that in a dispute over whether party A or Party B owns the stream between their properties, the courts can impose a ruling with the threat of absolute violence to enforce it. What is more, and more important, the State stands as a final arbiter who actually owns the stream. The most fundamental requirement of a property rights system is that there is a single, universal register of land applied to everyone, whether they like it or not; because you cannot have an ongoing situation in which Party A thinks he owns the land (on his registry) and Party B thinks he does (on his registry). If we look at situations without a hegemonic authority, between nations (the nation state system is anarchist, in case nobody has noticed), disagreements are frequent and usually resolved ultimately with bloodshed, often a great deal of it. Millions of men have died fighting over who owns often trivial scraps of land. To use the most recent European example, when Hitler decided to move the border between himself and the Soviet Union – and there was no greater hegemonic violence power to dissuade him – the bloodshed was monumental.

Anarchists do not seem to grasp this, with both land and law. If a rule applies to two parties, it has to be obligatory on both parties. You cannot have two competing land registries. Neither can you have two competing legal codes. In both cases, the best way to put this is that when Party A purchases a land registry, or law he does not wish it to apply to himself, but to everybody else. If I join an agency under whose product punching in the face is illegal, it is so that other people will be punished if they punch me in the face, not to stop me punching myself in the face. Likewise, I want my border defined in order to stop other people crossing it, and I don’t give a tinker’s cuss whether they say they have a different land register that says it’s theirs.

You do need a higher power with geographic monopoly. There really isn’t any way around this. If you entirely abolish the State, who is it? Who now has the hegemonic land registry, and the hegemonic legal code that says punching me in the face is a criminal offence? I’ve never seen a good answer to this (they tend to waffle off into an imaginary infinite regress of courts of arbitration) and I don’t think there is one.

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45 comments

  • I agree that libertarianism is certainly an ideology, but a purely political one since it allows for such divergence on social and cultural matters. Libertarians who are socially and culturally ‘leftist’ will agree (largely) with libertarians who are socially and culturally ‘rightist’ on what the proper function of a minimal state is, if nothing else. Anarcho-capitalists and free-market anarchists also broadly concur, although they use different terminology to describe their positions.

    What I would agree with John Kersey on, however, is that conservatism is not strictly an ideology. It is a philosophy primarily about the way society ought to be ordered (not in the political sense) that is then carried over to politics. It has no deontology in the way libertarianism does, and can differ from country to country.

    While libertarians can certainly be socially and culturally conservative (à la Kersey, Gabb, Hoppe), I am not convinced that libertarianism is compatible with conservatism — at least English Toryism — in the full sense of the latter: libertarianism has its roots in the Enlightenment, while Anglo-conservatism predates it and opposed the French Revolution, which was formulated in terms of Enlightenment ideals; traditional Toryism stands in staunch opposition to free markets, which it regards as a liberal ideal; other issues like gay marriage and drug legalisation could never be countenanced by traditionalists, whereas I do not believe it is possible to argue in favour of the prohibition of either from libertarian principles (indeed, even libertarians who have a religious, moral, or conservative inclination against both would cease to be libertarians if they regard it proper of the state to impose here). I could go on. I have a few fervid, extremely well-read reactionaries as acquaintances, and none has much time for libertarianism for the same reasons I have mentioned. Some recognise that libertarians are allies in terms of combatting the Left-driven culture war, but that is as far as their praise goes.

    Similarities can be made of any two things juxtaposed, really, so yes, traditional England might well have had a far less hands-on approach to top-down governance, but I would not say it has anything to do with an adoption, even in part, of libertarian-rooted ideas. That is not to dismiss the value of recognising these similarities, though, and it makes informal alliance between reactionaries and conservatives in England much easier than in, say, Russia or China.

    • “It has no deontology in the way libertarianism does, and can differ from country to country.”

      This leads into a question I have been wanting to ask, can a utilitarian ever be a libertarian?

      • I think all humans are, to some degree, Utilitarians. That is, we have some idea of a society which is optimal on some scale, which amounts to happiness, and then we prefer those strategies and policies which we think will achieve it. I fear that this applies, whether we like it or not, to libertarians too. Political differences come about because of different outcome preferences, and different opinions as to what will achieve them. I am as guilty of this as anyone; I have a quite clear idea of “Ian B’s Utopia” and I’m sure it would be more desirable than anyone else’s Utopia, at least at the emotional level. I also know that most other people would consider it unattainable, undesirable, foolish, etc. So I can’t help but feel that many libertarians- whether anarchist, conservative, liberal, left, etc, really want the State out of the way so we can build our own Utopia without interference. In the private sector, of course 🙂

        For instance, some people enjoy an ordered society. They consider order virtually synonymous with happiness. For them, the best outcome is the most ordered outcome, and they are sure that a more ordered society will be a happier society; everyone knows their place, it is stable and dependable, people are not made miserable by uncertainty. Other people desire the opposite; a disordered state is to them the happiest as it is the most dynamic, individualist and creative. These two preferences cannot be reconciled. The challenge is finding a social structure that both people find bearable. Which to me is what liberty offers. But it is obviously tempting to desire a society in which everyone else is forced to be the way you want, because you’re sure that they will then realise that it is the happiest state after all. This is what most people tend to end up wanting and is of course the driving obsession of the Progressives.

        But back with what I was saying, I think we’re all Utilitarians to some degree. Some more than others. This is part of the reason I am less and less concerned with purist forms of Libertarianism. Reality is always a compromise. Just, “more libertarian” will be an improvement; or rather, just stopping things getting less libertarian every day would be a bloody good start.

        • Thanks for the response, some interesting thoughts.

          I largely agree, and stopping things getting less libertarian every day would be wonderful.

          In the abstract, I don’t see how utilitarianism and libertarianism are compatible – one takes the greatest good for the greatest many as it’s starting point, the other takes individual liberty and non-aggression. It seems unlikely that those two starting points would lead to almost identical ways of structuring society.

          However, I presume most libertarians believe that it will lead to a much better society than we have now, so there is a utilitarian justification.

          As ‘libertarian activists’ though, do we need to be careful what we emphasise? If our promotion always starts from a deontological perspective (the state has no right to impose on an individual, taxation is theft etc.) then people may be suspicious of our motives. If the outcome is emphasised (people generally can and will achieve happiness is whatever way is appropriate for them) then maybe that is more persuasive.

          ————————————————–

          Ah, I was just doing some background reading whilst typing this. ‘Consequentialist libertarianism’ vs ‘Natural rights libertarianism’ seems to be the accepted terminology. I guess I am a consequentialist, having a fairly strong aversion to a rule based system of ethics.

          • Deontological arguments tend to be pretty weak in convincing others, I think, because most people are outcomes focussed. If you propose something, whatever it is, the first thing a person wants to know is what the outcome will be. So if a deontological libertarian says, “the State has no natural right to impose nationalised healthcare”, your listener is already probably thinking “but if they don’t, granny won’t get her hip replacement” and unless you’re going to address that effectively, you’ve lost them.

  • Well there wouldn’t be an infinite regression of legal arbiters as one party would have to give up (or face defeat in a violent manner). Constantly fighting in these matters always has a cost for private groups. States, however never need to worry about costs as they can always force others to pay more through taxation.

    • That’s the problem really. I can’t see this ending up as anything other than who has the most guns. Which was the problem we started out trying to solve.

      • As a scientist, I think I could produce convincing evidence that neither the physical biology nor the social behaviour-traits of “anatomically-modern Homo sapiens” has moved an inch, inside about 100,000-150,000 years. In species evolutionary terms, this is of course an astonishingly short time interval – the merest blink of a geological eye: so we need not be surprised.

        It took Darwin’s Finches (see “Galapagos Islands”) more than twice that timescale to get even very, very marginally-slightly different beaks from each other.

        The point about “who has the most guns” takes me right back to things I was writing several years ago, when I suggested that any emergent and true “liberal” (the proper kind – let alone a “libertarian” one – ) government in any random nation would automatically find itself beset by many many powerful and foreign enemies.

  • The Hayekian point that we evolved in hunter-gatherer packs.

    It may be a bit more complicated than that – after all the “stone age” societies of New Guinea vary wildly in their view of property rights (as did the various tribes of North American), but the general Hayek point is sound.

    Social progress depends on inequality – on people being allowed to own large scale private property (for example in land) which other people do not own. Yet instincts of the hunter-gatherer pack (for example represented by Rousseau) reject this and demand “fair shares” or “Social Justice”.

    How is this problem to be solved? How is the inequality upon which progress (cultural as well as economic) to be defended against the savage instincts of the hunter gatherer pack – against “the mob”?

    Perhaps reason is not enough, perhaps (or so Hayek argues) we need to stress cultural tradition and traditional custims as the vital defence of civilisation.

    However, those traditions and customs emerged (social evolution) for reasons – and they were reasons that some people understood (at the time). Certainly they could not predict modern society – but the people who, for example, demanded that Charles the Bald formally declare in 9th century France that the ruler (the head of the pack) could NOT take land from one family and give it to another, were engaging in a conscious effort – an example of human design, not just human action.

    Ditto Cicero’s arguments against the arbitrary power of the state. Or Aristotle’s argument against the government taking money from the rich and giving it to the poor (which, he maintained, by like pouring liquid into a container with no bottom on it).

    Of course they were defending societies that already existed – how these societies originally emerged (from the hunter gatherer packs) is a difficult question.

    As for land ownership – areas of “virgin” occupation of land are rare, the settlement of (for example) Iceland, fits the John Locke idea, but most places do not.

    In most places, if one goes back far enough (it may be thousands of years – but one can normally do it) one can find dried human blood and shattered human bones.

    Both Roman Law and Common Law say that land be taken by violence, centuries ago, does NOT invalidate the ownership of the current owners – it gives no right to take the land from them.

    The “libertarian left” say that past violence, even if it was centuries ago, does invalidate present day land holding. The land was not “justly acquired” (if one goes back far enough).

    And, as the Jacobins pointed out before them, the “libertarian left” are quick to point out that many of the rich are lazy and useless – surely society can do better than……….

    In the end it comes down to “which side are you on” in such a kill-or-be-killed situation.

    My own view is the same as that of Edmund Burke in the warning he wrote to the Duke of Bedford (a warning the rather stupid radical Duke failed to understand) “Letter To A Noble Lord”.

  • This is such a farrago of nonsense it’s hard to know where to start. I prefer to start from first principles that nobody has a monopoly on violence. It then becomes a question of where you go from there. Appealing to utilarian ethics and thoroughly faulty logic – unless we enforce a land registry with state violence nobody can own anything… I thought welcoming Paul Marks as lending useful contributions to the blog was an improbably low point but I’m bemused now that he makes more sense than David Davis.

    Quite apart from anything else, the evidence of history demonstrates there’s no such thing as limited government. So long as there is government you definitely don’t own anything because for the government theft is legal and entirely arbitrary.

    • Well, the problem is that violence is the ultimate guarantor of everything, and it comes down to who wields it. It’s not about whether people can own things. It’s how you practically ensure that everyone agrees who owns things, and in the case of land that tends to be somewhat fraught, as history has shown us over and over again. Whoever makes the final decision on these things needs the ability to enforce their decision, hence Stalin’s famous quote “How many divisions has the Pope got?”.

      You see the problem isn’t what you do in situations where people agree. Those are easy. It’s when they don’t agree that the trouble arises. If you think the solution can always be found by sitting down and discussing the matter calmly, you’re not being realistic.

      • The construction of a phalanx of straw men that fails to address my comments, including implying that I said a whole bunch of things that I didn’t say.

        I might as well be commenting on Huffpo or the Daily Mail.

        • I’m asking how, in an anarchist society (or rather non-society, since there is no hegemonic collective) anyone ever gets the right to enforce some decision on somebody else, other than by greater force (“might makes right”). If I simply refuse to acknowledge your court/arbitration/etc system, what’s your next step? If I cannot refuse to acknowledge them, are they not just the State by another name?

          • You’re asking me to prove a negative. We can demonstrate that there’s no such thing as small government, the evidence of history is clear.

            What I’m saying is that a society needs to be developed that doesn’t recognise a monopoly on violence. I don’t think you can own property in the way you think because of the fact that your idea that a hegemonic state will enforce the property rights you want is demonstrably false. So asking me to provide something that works *when I’m arguing from first principles about the ethics that the system should be based on* is yet another straw man construction.

            Your solution doesn’t work – we can see that all around us and historically. What anarchists or libertarians need to do is come up with some kind of free market solution that will work. For sure, yours isn’t it!

            • You’re not quite getting the point. If you propose an anarchy, you don’t get to “come up with” its rules. All you can do is try to predict how people will behave when there is no collective ruleset. That is, you have no capacity to design. You can only predict (or speculate). And if your prediction is anarcho-capitalism, or something similar, you’re up against the problem that never in history has it arisen spontaneously before.

              • And you’re up against the problem that it is empirically verified that there is no such thing as small government. I’m arguing from first principles, you’re arguing from utility.

                The Internet and open source software had never arison spontaneously before either. I’m asking for new solutions, you’re proposing old mechanisms that are positively proven to have failed.

                • And I’m saying you don’t get to implement any “new solutions” in an anarchy. You just get to guess what will happen, so if you think that what will happen spontaneously is anarcho-capitalism or similar, you need a bloody good justification for that belief.

                  The internet is a technology. Voluntary action (like OS software) has often happened in the past, though modern technology allows it on a larger scale. Neither is applicable to anarchism, for which there have been numerous opportunities (it does not require a particular technology level) but nonetheless is has never arisen in the forms we are told it will by people like yourself. Your problem is that humans have a strong tendency to form into hierarchical territorial collectives dominated by alpha characters, so you need to explain why that won’t happen this time.

                  You’re complaining that there’s no such thing as a small government. I’m pointing out that your problem is that there’s no such thing as a “no government”. I cannot think of a single example in all of history of a group of humans living in an ungoverned state. Can you?

                  • All anarchy means is that there is no government, which I take to mean no collective with the legal monopoly on the use of force. So bad-mouthing anarcho-capitalism is just another straw man / misdirection.

                    I’m asking for new solutions, you’re proposing a solution that has been proved over and over again to not work and asserting no new directions are possible (that change is impossible). So who’s the crazy one here?

            • Stop being so bloody hostile. You do realise that Ian B is more libertarian than 99.9% of the population, right? He’s asking legitimate questions about the role of violence, property titles etc CHRIST

              • Presumably you’re American. In any case, being more libertarian then 99.9% of the population puts you slightly to left of Chairman Mao.

                • On the other hand I don’t think I have the right to punch people who annoy me, so I’m at least more Libertarian than you are.

                  • I never asserted the right to punch people who annoy me. Somebody deliberately insulting you with an implied or actual threat of violence isn’t anything to do with annoying.

                    You need to spend less time at your computer in your mum’s basement theorising and more time actually getting out into the real world and real people.

  • Julie near Chicago

    Assuming that Man did pass through a stage in which people existed in “hunter-gatherer packs” — and if so, no doubt the length of the stage varied amongst the different “packs” or the societies which grew from them — it’s far from clear to me that “Social Justice” as we seem to understand it today would have been the usual thing.

    I would think that in a true hunter-gatherer group, the best hunters and the best warriors would get the lion’s share; of food, of goods, of females. First because he could; later, perhaps, partly because of developed custom but also partly because of rational calculation, this would appear sensible to people who desired the food provided by the hunter and the safety (and perhaps excitement or entertainment) provided by the warrior. At some point in all this — and remember, human evolution is presumed to have proceeded from a pre-human animal, just as apes and monkeys have proceeded from creatures which were pre-ape and pre-monkey — the sense of “groupness” would have come into existence, and later (I believe later), as the capacity to form concepts and to reason began to appear, the humans in the “packs” would begin to form the concept of a “group,” a bunch of humans of which each was a part.

    The individual humans would have come to feel that the group had an immediate meaning and an immediate importance for them. They would now have an additional impetus to support the hunters and the warriors, so as to protect the group of which they were a part.

    Now, there would have been other factors in our evolutionary history that would have pushed us in other directions than just mere resignation to the rule of “he who is most dangerous gets the goodies, the grub and the girls”; if that were not so, we wouldn’t be having this conversation; besides, one such factor is obvious, and that is the urge to nurture that exists in most mothers. We also see what looks a lot like “caring for others” in some other animals.

    But personally, I can’t see any reason why such urges would override the capacity of the strong in a “pack” or pre-civilized group (if I may use the term) to get first dibs, nor of the tendency of those who depend upon them for food and safety to grant it.

    [“Pecking order” is real, and though the term was invented to describe the social behavior(!) of chickens, we see it in many animal groups. It is in the insect realm that “socialism” seems most usual and natural; and even there, it’s not “social justice” in the sense of some human-style “fairness,” only perhaps “social justice” in that the “just” treatment of a particular ant depends on what is his place in the machinery that is the hive. Do bees distinguish individual bees as individual bees, or rather as interchangeable instances of the “worker bee,” the “drone,” etc.? I do not know, never having had any observation of an apiary at all.)

  • “unless we enforce a land registry with state violence nobody can own anything” John Pate, but he may be attacking this statement (not supporting it).

    There was, of course, no land registry for most of English history – and people still owned things, including land (“free hold” was actually more secure, not less secure than Roman Law private ownership). It is true that there were attempts by the Crown to take land (for example the effort under George III to take land from the Duke of Portland – because the latter could not produce documents proving his family had justly acquired the land in question), but Parliament, in those days a check on the government (not part of the government – and it is now), knocked such efforts back.

    If land had been in your family for generations it was ruled that you did not have to produce documents (the common knowledge of local people was enough) – and there was no “land registry” anyway.

    As for “state violence” – how does this even apply to Sean Gabb native county of Kent. What “state violence”? When?

    Of course there is violence in all places (if one goes back in time far enough) – but that does NOT mean that it is normal or that normal property owning depends upon it.

    Some counties in England and Wales did not have police forces till 1856. An unpaid magistrate (JP) would call upon local people to help him if a criminal (or criminals) were violent.

    As for Scots Law – the principle (right up to the Act of 1845) was a public ceremony – no written documents were actually needed.

    An exchange of earth (before local witnesses) was what was needed – the local people would then accept that the land had been transferred by voluntary agreement. Not “violence”.

    Indeed in OLD Scots law even a title of nobility was not a grant of the Crown (as it was in England) – it went with the land itself. When the land was sold, the title went with it.

    Even in the 18th century Dr Johnson noted that his friend Boswell was called by the name of his estate when in Scotland – a memory of the old practice.

    Most of the time property, in a stable society, depends on OPINION (the opinion of local people) – not written documents and not force.

    If most people locally accept that your family owns a field (or a forest) then you do – even if you have no documents, and no force of armed men.

    A society where property rights are uncertain (where there are “confiscations and counter confiscations”) is more like Ireland – at least the dark history of Ireland (where people could never agree on who owned what, even before 1170 there was no general agreement, – what one generation or faction confiscated the next would counter confiscate, and on and on, and “burning out” was the standard way people tried to settle their differences). Such societies make little progress.

    “Paul stressing the importance of opinion and general agreement is siding with David Hume”.

    Have I ever said he was always wrong?

  • Were the Duke of Bedford’s family (the Russells) right to be toadies of Henry VIII? Or course not.

    Is he (the “Noble Lord” whom Edmund Burke addressed his public letter to) right to be a toady of the French Revolutionaries who are plotting against his own country? Again – of course not.

    But this does NOT give anyone the right to take away the land of the Duke of Bedford – and if he neglected the land and spent every day asleep after gambling the night away….. Still no one would have the right to take his land away – after all, if one thinks hard enough, one can always find a moral failing in someone else.

    After all they are not going to give back the land to 16th century monks – they (the “his family did not justly acquire it” crew) just want it for themselves – and they cloak vile intention under fair speech.

    Being Irish Edmund Burke knew that people can always find noble language to justify robbing and murdering other people and “his family did not justly acquire the land because….” was the standard gambit.

    That is no road for a society to be on – it just leads to ashes and dried blood.

    But the “Noble Lord” could not see it – his French (and English radical) friends told him that they were interested in taking land from bad people – and he was not a bad person……

    Rich idiots – every century has them.

    Both Common Law and Roman Law reject this “go back to the year dot and show virgin land acquisition and every transfer, from the year dot, being voluntary – or the land is invalid” stuff – and it is vital that they do. A rational legal system does not enquire into whether your distant ancestors were criminals – just whether you are. If you are not a criminal it leaves you alone – it does not say “your ancestor was a follower of William the Bastard so we can kick you off this land now” (forgetting that most present landowners are NOT in this group anyway – and the ones that are intermarried within the first couple of generations).

    This is as it should be – unless one prefers the endless ashes and dried blood.

  • None of the above should be taken to mean that, for example, County Antrim (the opposite end of the island from the Black Water Valley that Mr Burke knew) is not a wonderfully romantic place (in parts).

    With every heap of old stones telling a tale of massacre and counter massacre (going back not just hundreds – but sometimes thousands of years). Nor is attitude of “your ancestor insulted my ancestor in 1712 – you must DIE!” not without its charms (Hatfields and McCoys on steroids – by the way, the McCoys were in the right on that one).

    But, on balance, I think I would rather observe the history than take part in it.

    As the great philosopher “Shaggy” from “Scoopy Doo” put it…..

    “I am allergic to pain – it hurts me”.

    I will only kill someone if I really can not bore them so much (by talking on and on……) that they just go away.

  • When law and order are discussed by conservatives, socialists or libertarians they generally conflate distinct services. However before we get there one must recognise that the need for law and order only stems from the possibility of interpersonal disputes; if there were no disputes there would be no need for It. As such interpersonal law and order is a social construction (though not necessarily arbitrary). So our analysis should follow from the situation of an interpersonal dispute and extrapolate from there- a bottom up view as it were.

    Within Law and Order there are five different services:

    1. Prevention – from alarms to armed patrols.
    2. Investigation – your car has been stolen, you need to find out who.
    3. Mediation – we have found a suspect who is now your disputant. Through mediation it is possible one (or both) will recognise guilt and reconciliation made, possibly with restitution.
    4. Arbitration – the disputants cannot agree amongst themselves so voluntarily submit to a judge and agree to abide by their decision.
    5. Punishment – probably mainly fines but could include other sanctions.

    There is no reason why prevention in its totality (assuming it remains within prevention) cannot be provided by the market – it is clearly a voluntary exchange: I pay for £100 a week to keep a watch on my house. The same goes for investigation: I pay Dave to investigate where my car has gone and who did it.

    Mediation is essentially like marriage counselling. We have a problem, help us to resolve it. As such it can be provided purely voluntary exchange. Arbitration on the other hand is to make a decision for us and we will abide by it. Again in principle it could be provided by the market since its essence is still voluntary. It is possible that different judges will use different principles to come to decisions but so what? As long as the disputants are happy with the judge it doesn’t matter if he uses Sharia, Talmud or Atlas Shrugged. So your point about requiring a single land registry isn’t necessary in the sense you used it. The law in this case is just a pronouncement by a judge as to who is right and who is wrong.

    If both parties agreed to the results of arbitration then punishment too could be considered a purely market activity. However this assumes that a suspect won’t just resort to violence themselves or refuses to agree to any mediation or arbitration (obviously prevention and investigation don’t apply here).

    The first comment to make is the obvious, violence is expensive and unpredictable so individuals will be inherently less violent than State’s since they can devolve the costs onto the tax payer whereas individuals cannot. But it can clearly still occur so the question arises what to do with a suspect who refuses to comply. It would seem reasonable to try him in absentia by a well-respected judge within society (if the suspect was with an insurance agency it could be one of the judges of which they approve) then track down and punish him accordingly. In this case arbitration and punishment are non-market acts as they haven’t been voluntarily agreed upon although however they are justifiable based on libertarian ethics.

    However in the realm of punishment is it always the case that whoever has the most guns wins? Suppose the recalcitrant criminal controls a large private militia which is smaller than that of the legitimate authorities who will win? The first observation to make is that, if whoever has the most guns wins one would expect a centralising tendency towards those who had the most guns across the whole world to create a world state since they would threaten and enact violence until they had ultimate earthly power. This is far from obviously the case, note the large secessionist movements around Europe and the USA as well as the historical fall of empires.

    Assuming we begin in a market anarchist society, who would want to deal with a, by definition lawless, individual? Obviously his friends and family but there’d be a cost on him doing so primarily in the form of ostracism, similar to how the Law Merchant worked in the Middle Ages. He could try to enforce his will by his guns but he would need more firepower than all other punishment organisations put together. This is somewhat unlikely as the others could bandy together to oppose him as such a market anarchist society would be self-stabilising and not form a state (see this article for more detail- http://www.analyticalfreedom.com/conflict-between-firms-in-an-anarcho-capitalist-society/ Even if there was a firm which completely took over ( a monopolist) unless it had legitimacy, insurgency is almost guaranteed. If this is widespread, even in the form of hiding insurgents and refusing to pass on information, the mini-state could fall- this is essentially what has happened to the Americans on their recent foreign jaunts.

    Further we could expect the mini-state to be less competent militarily than those born of competition. From the view of consumers which is the only consistent way we can look at this economically speaking, a firm which attempts to create a legal monopoly is essentially acting as a consumer in this regard rather than one of a producer. It is imposing its will on consumers by restricting their choice. Consequently, a monopoly is by definition inferior at satisfying consumer wants than a situation of free entry. Therefore on this basis, we can expect the monopolist army to be inferior to that born of competition. So even if one mini-state arises there’s no guarantee it’ll spread that far. So in essence a state will not necessarily arise and there’s good reasons to think it won’t.

  • Paul-

    If land had been in your family for generations it was ruled that you did not have to produce documents (the common knowledge of local people was enough) – and there was no “land registry” anyway.

    The land registry in this instance simply formalises something previously held informally in peoples’ brains. The same as a marriage registry records who is married to who, but you could have relied on “everyone knows that Mary and Arthur are married” in a less formal manner. The point is that however the knowledge is stored (in brains, or on paper), the court has jurisdiction to impose a decision on disputing parties (“John owns the lower end of the south meadow, not Cedric”). The problem anarchists face is that nobody has any jurisdiction any more.

  • Dobbothegreat-

    The first comment to make is the obvious, violence is expensive and unpredictable so individuals will be inherently less violent than State’s since they can devolve the costs onto the tax payer whereas individuals cannot.

    The evidence doesn’t seem to bear this out. Violence is pretty cheap. It’s proper court systems etc that are expensive. Hence for instance gangs use a great deal of violence to settle disputes; as is sometimes pointed out when a black man is killed by a police officer in the USA, the number of blacks killed by the police is a fraction of the number of black gangstas who kill each other, and that’s because for gangs, violence is cheap and predictable.

    But it can clearly still occur so the question arises what to do with a suspect who refuses to comply. It would seem reasonable to try him in absentia by a well-respected judge within society (if the suspect was with an insurance agency it could be one of the judges of which they approve) then track down and punish him accordingly. In this case arbitration and punishment are non-market acts as they haven’t been voluntarily agreed upon although however they are justifiable based on libertarian ethics.

    The problem is you’re now back where you started. “Society” has become a State. It might be a State justified by libertarian ethics, but it’s still doing precisely what the current State does, which is to impose a collective will on individuals whether they like it or not. And you really need to remember that the person being “tracked down and punished” is a suspect, who has been tried “in absentia”; there is not even any means to ensure a fair trial, since the institutional system in which such principles are embodied (innocent until proven guilty, right to not self incriminate, right to a jury, etc etc) are all gone.

  • The evidence doesn’t seem to bear this out. Violence is pretty cheap. It’s proper court systems etc that are expensive. Hence for instance gangs use a great deal of violence to settle disputes; as is sometimes pointed out when a black man is killed by a police officer in the USA, the number of blacks killed by the police is a fraction of the number of black gangstas who kill each other, and that’s because for gangs, violence is cheap and predictable

    Clearly it’s the case that some gangs decide it is good business to be involved in violence. It still doesn’t mean it is cheap or predictable relative, of course, to a peaceful negotiated solution. A drive by can go wrong and your man killed. Local residents could in principle fight back. Drugs though is a bad example since it the absence of drugs prohibition the money wouldn’t be there to make it a good business decision. Also in a vaguely free society they’d be much more alternative lines of employment so the lines of men willing to be in the firing line would dramatically fall. Even if you do consider violence cheaper it is cheaper for the state as it can devolve the costs onto others.

    The problem is you’re now back where you started. “Society” has become a State. It might be a State justified by libertarian ethics, but it’s still doing precisely what the current State does, which is to impose a collective will on individuals whether they like it or not. And you really need to remember that the person being “tracked down and punished” is a suspect, who has been tried “in absentia”; there is not even any means to ensure a fair trial, since the institutional system in which such principles are embodied (innocent until proven guilty, right to not self incriminate, right to a jury, etc.) are all gone.

    This maybe be a semantic difference but I’d consider a state a geographical monopolist on arbitration and punishment. In this case there are competing providers of both of these and hence there is no state. The fact that the state does something doesn’t necessarily mean it is, of itself, bad.

    Clearly the example I outline is far from ideal but I don’t see how the trail will not necessarily be fair. Before saying this I do think it legitimate for a person or institution to incarcerate someone with probable cause of a crime if there’s no alternative (they suspect they’ll abscond etc.) however if they are latter to be found not guilty or that the action was dis-proportionally they would be personally, fully liable for their actions. The key point at all points must be full liability.

    Back to the case in point though- in a market arbitration system each judge/organisation would want a reputation for fairness and wisdom since their business depends on it. So in these cases some may not hear them but since there’s a profit opportunity in it some would. To ensure their reputation for in absentia trials they could pay a rival firm to defend the suspect in his absence – collect evidence, witnesses etc. This would be important as the punishment firm would wish to avoid being considered an outlaw firm so would require a fair trial in most cases. To avoid being outlaw the local society would have to be confident that all their actions were licit so they’d follow this or similar procedure to keep such a reputation. Such a system is much more likely to achieve a fair trail than any written law/constitution. Remember also in this case it isn’t that it’s one court demanding the suspects presence there could be multitudes to whom he refuses to come before.

  • My attempt at basic html failed. Try this:

    Ian B -“The evidence doesn’t seem to bear this out. Violence is pretty cheap. It’s proper court systems etc that are expensive. Hence for instance gangs use a great deal of violence to settle disputes; as is sometimes pointed out when a black man is killed by a police officer in the USA, the number of blacks killed by the police is a fraction of the number of black gangstas who kill each other, and that’s because for gangs, violence is cheap and predictable”

    Me – Clearly it’s the case that some gangs decide it is good business to be involved in violence. It still doesn’t mean it is cheap or predictable relative, of course, to a peaceful negotiated solution. A drive by can go wrong and your man killed. Local residents could in principle fight back. Drugs though is a bad example since it the absence of drugs prohibition the money wouldn’t be there to make it a good business decision. Also in a vaguely free society they’d be much more alternative lines of employment so the lines of men willing to be in the firing line would dramatically fall. Even if you do consider violence cheaper it is cheaper for the state as it can devolve the costs onto others.

    Ian B – “The problem is you’re now back where you started. “Society” has become a State. It might be a State justified by libertarian ethics, but it’s still doing precisely what the current State does, which is to impose a collective will on individuals whether they like it or not. And you really need to remember that the person being “tracked down and punished” is a suspect, who has been tried “in absentia”; there is not even any means to ensure a fair trial, since the institutional system in which such principles are embodied (innocent until proven guilty, right to not self incriminate, right to a jury, etc etc) are all gone.”

    Me -This maybe be a semantic difference but I’d consider a state a geographical monopolist on arbitration and punishment. In this case there are competing providers of both of these and hence there is no state. The fact that the state does something doesn’t necessarily mean it is, of itself, bad.

    Clearly the example I outline is far from ideal but I don’t see how the trail will not necessarily be fair. Before saying this I do think it legitimate for a person or institution to incarcerate someone with probable cause of a crime if there’s no alternative (they suspect they’ll abscond etc) however if they are latter to be found not guilty or that the action was dis-proportionally they would be personally, fully liable for their actions. The key point at all points must be full liability.

    Back to the case in point though- in a market arbitration system each judge/organisation would want a reputation for fairness and wisdom since their business depends on it. So in these cases some may not hear them but since there’s a profit opportunity in it some would. To ensure their reputation for in absentia trials they could pay a rival firm to defend the suspect in his absence – collect evidence, witnesses etc. This would be important as the punishment firm would wish to avoid being considered an outlaw firm so would require a fair trial in most cases. To avoid being outlaw the local society would have to be confident that all their actions were licit so they’d follow this or similar procedure to keep such a reputation. Such a system is much more likely to achieve a fair trail than any written law/constitution. Remember also in this case it isn’t that it’s one court demanding the suspects presence there could be multitudes to whom he refuses to come before.

    • It still doesn’t mean it is cheap or predictable relative, of course, to a peaceful negotiated solution.

      (I recommend using the <blockquote> tag for quotes 🙂

      Anyway, to the point: no, it’s not necessarily the best way of going about, if you’re logical, rational and so on. But it’s what people tend to do. I could make a perfect case for how the Romans, Persians, Germanic Tribes and later Muslims could all have prospered more in the long run by sticking to peaceful trade and arbitration instead of plunder and violent conflict resolution, but they didn’t. Human nature gets in the way of reason. And this is the problem really for me; I don’t think that in practise people will tend towards the solutions proposed by anarcho-capitalists. Instinctively, we’d all much prefer to hunt down the perceived transgressor and beat him to death with sticks. That is bad for society in the long run, but in the short run it’s cheap, predictable and, sadly, rather emotionally satisfying.

      This is particularly true when people are perceived to be not just criminals, but moral transgressors (these are different things, which many people fail to realise, and that subject deserves not so much a blog article as a book). Recently, a man who was falsely believed to be a paedophile was burned alive in public in England. What was interesting afterwards was that most of the objections were to the fact that he was wrongly believed to be a paedo, rather than against the idea itself of summary justice meted out on paedos. If he’d been a genuine kiddie-fiddler, most people would’ve clearly said he deserved it.

      Humans naturally default to a rough and violent form of justice. Legal systems- imposed by chiefs, kings, priests etc- appear to have developed as a means to keep a lid on that, to short-circuit the spiral of violence which naturally develops. I am really sceptical that anyone will pay a high insurance premiums so that somebody else can get a fair and comprehensive trial, when the cheap, predictable alternative is beating them to death with sticks.

      • Off the top of my head I can think of a bunch of people who should be beaten to death with sticks. Don’t knock it.

      • I agree that many humans default to a rough and violent form of justice. The problem is a fail to see how a monopolist of arbitration and punishment will solve anything – all it means is that the monopolist can act with impunity and pass the costs onto others whereas in a market anarchist society they cannot. As such the anarchist society will tend to be more civil than a state. The key is to look at the relative incentive structures in each system..

        I agree an individual may not pay for someone else to have a fair trial but the punishment agencies would to make sure they are considered legitimate agents. This would easily be an insurable cost – we have compelling evidence to punish Dave but he has absconded in such a case the insurance company could foot the bill. By doing so it reduces the punishment agencies costs relative to them footing the entire bill.

        A market anarchist society would have violence, rape, murder, summary justice and general unpleasantness but so does a statist one, it’s just likely given the incentives the former would be less bad.

  • I am late to the party here, but I feel many of the points IanB raises are addressed very clearly by Hoppe in his recent essay “From Aristocracy to Monarchy to Democracy” (http://mises.org/sites/default/files/From%20Aristocracy%20to%20Monarchy%20to%20Democracy_Hoppe_Text%202014.pdf) In this essay, Hoppe establishes the comparability of medieval feudalism to natural order, and since feudalism is key to my concept of traditional conservatism, this in turn is a basis for my reference to conservatism and natural order that IanB picked up on above.

    In any case, it seems to me that it is not difficult to see past and present socialism as characterized by a constant process of intervention to prevent various forms of outcome that would otherwise occur as a result of “unfettered” human interaction. Socialism has, time and again, reacted to human behaviour with the response of restrictive legislation and the assumption that social outcomes can be achieved by means of, for example, the enforced redistribution of wealth. This is a long way from the Oakshottian model of conservative governance, and from the idea that the role of government (in as much as it has any role at all) is not to implement an ideology based on change and deliberate destabilization but instead to preserve and conserve the core values of a traditional society.

    • John, I think my short answer might be that if mediaeval feudalism is the manifestation of the natural order, I’m not much of a fan of the natural order. My longer answer might be that, as I’ve intimated elsewhere, many natural human propensities are not necessarily desirable, and if I blunder into Whiggishness by suggesting that progress has involved thinking up some better things than what comes naturally, I apologise.

      To give an example, there is ample evidence from anthropology that it is very natural- if not virtually ubiquitous in primitive societies- for marriage to consist of apportioning girls shortly after puberty (or sometimes even before) to the alpha males of the tribe. I believe a strong argument can be made that the European development of a system of monogamous marriages based on affection (there is too much to go into here as to why that developed here, but I think it’s all very interesting to discuss) is preferable if you want something like civilised, liberal and individualist society. One can make a case (maybe even DJ Webb and I might find a rare agreement on this) that monogamy is, or at least was, the primary basis of Western liberal civilisation. But in terms of human societies generally, it is not very “natural”. A society that tells the most powerful male, “you’ve got one wife, you can’t have another one, sorry”, was a pretty spectacular innovation.

      So I think that appeals to natural order blunder into the naturalistic fallacy- the claim that that which is natural is automatically good- and I can’t really go with that myself.

      • …and yet you (Ian B) appeal to the “natural order” to bolster your arguments:

        “Humans naturally default to a rough and violent form of justice.”

        ” Your problem is that humans have a strong tendency to form into hierarchical territorial collectives dominated by alpha characters, so you need to explain why that won’t happen this time.”

        Do you listen to yourself when you speak or is it just stream of consciousness. (Hint, no question mark, rhetorical question.)

        • To amplify my comment, we have one side appealing to an attempt to try and structure society to accommodate human nature and the Ian B side who claim that human nature is irrelevant to the great five year plan of the proletarian collective.

          I know who is being unreasonable here but there are none so blind as cannot see.

          • I’m just pointing out that the natural state of humanity is not much like the thing libertarians and anarchists consider a “natural order” or “natural rights”. It is a state of hostile tribalism. In fact, the Nazi treatment of the Jews (plunder and murder of the outgroup) or modern behaviour of ISIL (much the same thing) are about as “natural” as it gets.

            Which is why the appeal to nature as justification (the derivation of the moral “ought” from nature’s “is”) is recognised as a fallacy called the Naturalistic Fallacy (one form of it).

            And as I keep pointing out, in an anarchy you don’t get to structure society. That’s the whole point. All you can do is predict how others might behave. You have no power to “structure” anything.

  • Until 1875, the age of consent in England and Wales was 12; from then until 1885 it was 13. We were hardly a primitive society then. The current age of consent of 16 is therefore a relatively recent development, and even more so for homosexuals.

    Certainly, marriage was largely “arranged” where significant property was involved, but just as with Asian arranged marriages, this was not a situation where the majority of such marriages were forcible or unhappy unions. There is still a strong element of social expectation among the landed classes; of course they are technically free to marry whomever they wish, but still more often than not marry within their own kind.

    The key factor in the development of “marriages based on affection” is quite simply the changed position of men and women. The economic independence of women meant that they were no longer compelled either to marry for economic security or to remain unhappily married for the same reason. The ready availability of contraception, and its social acceptability, meant that women were able to control their fertility.

    Even so, I would argue that the result of this has not been entirely one of “marriages based on affection”. It has been more visible in the rise of single parenthood, the increase in divorce (and the ease with which divorce can be obtained), in the diminution of the rights of fathers on separation or divorce, and the decreasing popularity of marriage in an environment where it has been steadily weakened by government both in its nature and in its economic standing.

    • This is why I favour leaving marriage to be regulated by the law of contract rather than the Marriage Act. Get the State out of it completely except to enforce the contract’s terms of rescission in the event of divorce.

    • The age of consent has little to do with it. I am a major critic myself. The point Is that Europe has a history of monogamy based on choice, rather than polygamy and “clan marriage” systems, though some of the latter occurred in the higher class (worried about property etc). Affectionate monogamy is the normal state of Western European marriage for the majority and has been for a very, very long time. It goes hand in glove with the high status of women and tolerance of promiscuity that also characterise European societies.

      But this is kind of tangential. The point is that the natural human state is not really much use to us, since it is basically a form of hierarchical collectivist tribalism without privacy or any concept of rights at all, and far removed from libertarian ideas. As libertarians, we need to start seeing the story of human progress as the story of progress towards liberty- individualism, rights and privacy- not as some imaginary golden age to go back to. In the natural human state, you would consider it not just acceptable but admirable to get together, raid the next tribe’s territory, kill the men and steal the women, because you don’t consider anyone but your own tribe to be quite human. The only thing I can see to learn from that is to be glad that we no longer live that way.

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