Estopping State Systems of Government


By Richard Storey

Introduction

The state, being a judicial monopolist, is an irrational system of government because of the self-contradictory violation of private property rights required to establish or maintain it.  Praxeological jurisprudence and the doctrine of dialogical estoppel provide the rational framework to show that, where there is incentive for rational consistency in the law, estopping the activities of state government and, rather, employing private judicial services is the only rationally viable option.  The state, qua adjudicator of and/or party to civil disputes, seeks to protect private property rights, yet it must violate these rights to maintain its territorial monopoly; therefore, it cannot rationally claim a right to prevent competitors providing judicial services or delegitimize any act by private courts to estop state activities.  This would necessarily result in a performative contradiction – a rights violating rights protector is a contradiction in terms.  Only private systems of governance, that is, private courts enforcing private law through voluntary interactions, can be consistent with the presuppositions of argumentation.

The conventional definition of a ‘state’ is a person or group maintaining a territorial monopoly of ultimate decision-making and, so, ultimate adjudicative power, even in disputes involving itself.  As Hans-Hermann Hoppe put it, the state ‘allows no appeal above and beyond itself. Furthermore, the state is an agency that exercises a territorial monopoly of taxation. That is, it is an agency that unilaterally fixes the price private citizens must pay for its provision of law and order.’[1]  This definition applies equally to states which exercise a separation of powers; an independent judiciary, for instance, is nevertheless an interdependent body of state government, exercising a monopoly of judicial services and receiving its funding from the same source of taxation.

This article was inspired by Frank van Dun’s example of a stereotypically crooked judge:

‘An official condemns a man to the gallows, having heard only the arguments and witnesses of the prosecution and having denied the accused the right to defend himself. There is not a whiff of dialectical contradiction there as long as the official places himself in the realm of brute force or cunning manipulation, demonstrating by words or actions that he does not intend to justify his action. However, he would dialectically contradict himself if he were to go on to say that he has rendered justice and spoken truly as required by the ethics of argumentation.’[2]

For identical reasons, the state, by definition, cannot engage in an adjudicative role without contradicting itself – the state’s aggressive imposition of judicial monopoly is inconsistent with its role as a judge in civil disputes.  Thus, the state, as a result of its irrational nature, is always a crooked judge.

Instead, Hoppe has proposed the creation of competition in the market of judicial services as a method to establish a free society, that is, a ‘private law society’.[3]  Hoppe’s social theory builds on the logical science of praxeology by applying it to human interaction in argumentation ethics; this has, in turn, been applied in the field of jurisprudence by Stephan Kinsella to develop the doctrine of dialogical estoppel.  A summation of the presuppositions of argumentation, particularly private property rights, is provided; further to this, it will be shown that the state commits a performative contradiction in the aggressive establishment of a territorial monopoly of ultimate decision-making power and, therefore, of judicial and legislative authority.  Thus, the doctrine of dialogical estoppel can theoretically be applied to estop the state’s actions in a private court.

For a full treatment of the foundations of praxeological jurisprudence and the use of praxeology to reformulate key legal concepts and the analysis of legal-theory controversies, see Konrad Graf’s article, Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice.[4]  Praxeological jurisprudence is not a theory of natural law per se, i.e. deontological ethical principles which people can discover through reason and ought to apply to their own decisions and acts.  Praxeological jurisprudence is concerned with determining a priori what the presuppositions of argumentation are.  Nevertheless, it is rationally objective and, thus, opposed to legal positivism and, as such, is described as ‘an emerging school of jurisprudence related to, but distinct from, natural law.’[5]   It is therefore important to note that praxeological jurisprudence is distinct, especially from the positivist schools of jurisprudence; these emphasize law as a social construct.  That is, rules which must be legislated by the judiciary and legislature of a state system of government.  Graf’s article also provides a fuller treatment of this and the distinction between law and morality.  In light of this key distinction between legal and ethical realms, the aim of this article is not to declare that all state systems of government should be abolished because they are irrational; states are of course feasible and are the overwhelmingly dominant form of government in human societies.

This article concludes that, by default, a restoration of private law, through competing, private systems of government (e.g. theoretical Hoppean private law societies, the medieval system of ecclesiastical courts etc.) is the only logically valid option for providing judicial services.  It is not the intention of this article to make any assertions regarding sovereignty or to show that private governance is more efficient or ‘works better’ than state governance in any utilitarian sense.  For such studies, please refer to Bruce L. Benson’s The Enterprise of Law: Justice Without the State (1990) and Edward P. Stringham’s Private Governance: Creating Order in Economic and Social Life (2015).

Praxeological Jurisprudence and the Irrationality of Judicial Monopoly

It shall now be shown that state judicial monopolies are irrational.  First, it must be shown that an individual who violates private property rights can be lawfully and incontestably estopped from claiming the right to do so by any private court.  Additionally, the representatives of the state can equally be estopped from engaging in the adjudication of legal disputes for this very reason.

Foundational to Hoppe’s social theory is Ludwig von Mises’ a priori of human action, otherwise known as the action axiom.  Mises determined a universally valid foundation for economics by stripping the concept of action down to a bare minimum: agents act purposively by choosing means and ends.  He concluded that the concept of purposeful human action is ‘like those of logic and mathematics, a priori. They are not subject to verification or falsification on the ground of experience and facts.’[6]  He therefore proposed that ‘science—at least for the time being—must adopt a dualistic approach…[taking] into account the fact that we do not know how external events—physical, chemical, and physiological—affect human thoughts, ideas, and judgments of value.’  Thus, Mises’ epistemological dualism proposed that the empirical social and natural scientific methods must be used in tandem with the logic of human thought and action – ‘praxeology’.[7]

 Hoppe has expanded praxeology into the area of ethics (human interaction) with the development of argumentation ethics.[8]  He has shown that the human act of engaging in non-aggressive disputes, with the use of discourse, presupposes certain norms, especially self-ownership and private property:

‘Argumentation does not consist of free-floating propositions but is a form of action requiring the employment of scarce means; and that the means which a person demonstrates as preferring by engaging in propositional exchanges are those of private property. For one thing, no one could possibly propose anything, and no one could become convinced of any proposition by argumentative means, if a person’s right to make exclusive use of his physical body were not already presupposed. It is this recognition of each other’s mutually exclusive control over one’s own body which explains the distinctive character of propositional exchanges that, while one may disagree about what has been said, it is still possible to agree at least on the fact that there is disagreement. It is also obvious that such a property right to one’s own body must be said to be justified a priori, for anyone who tried to justify any norm whatsoever would already have to presuppose the exclusive right of control over his body as a valid norm simply in order to say, “I propose such and such.” Anyone disputing such a right would become caught up in a practical contradiction since arguing so would already imply acceptance of the very norm which he was disputing.’[9]

The brilliance of Hoppe’s theory is that, in the very act of arguing contrary to it, one demonstrates its validity.  For example, to argue that violence is the best way to resolve a conflict is a performative contradiction.  Focusing on the justification of private property rights through argumentation ethics, Hoppe writes:

‘[I]t should be noted that if no one had the right to acquire and control anything except his own body…then we would all cease to exist and the problem of the justification of normative statements…simply would not exist. The existence of this problem is only possible because we are alive, and our existence is due to the fact that we do not, indeed cannot, accept a norm outlawing property in other scarce goods next and in addition to that of one’s physical body. Hence, the right to acquire such goods must be assumed to exist.’[10] 

Kinsella has applied these norms with the observation that the common-law equitable doctrine of estoppel is, essentially, an intuitive application of Hoppe’s theory of argumentation.  Broadly, estoppel ‘prevents or precludes someone from making a claim in a lawsuit that is inconsistent with his prior conduct’.  As Kinsella explains,

‘The basic insight behind this theory of rights is that a person cannot consistently object to being punished if he has himself initiated force. He is (dialogically) “estopped” from asserting the impropriety of the force used to punish him, because of his own coercive behavior. This theory also establishes the validity of the libertarian conception of rights as being strictly negative rights against aggression, the initiation of force.’[11]

The significance of this development is the refining of the natural law school of jurisprudence, given its history of arbitrary and sometimes contradictory notions of what ‘nature’ is, towards a praxeological approach,  What Graf characterizes more broadly as a distinct new action-based school of jurisprudence.  As Hoppe notes: ‘The praxeological approach solves this problem by recognizing that it is not the wider concept of human nature but the narrower one of propositional exchanges and argumentation which must serve as the starting point in deriving an ethic.’[12]  For this reason, a praxeological approach towards jurisprudence provides universally applicable social norms, in contrast to the dominant positivistic schools of jurisprudence, which lack rational certainty, deriving law from arbitrary and subjective legislation.  An adjudicator in a civil dispute can, therefore, make confident assertions when analysing the facts of any given case (the empirical data) in light of the incontestable private property rights which are implicitly accepted when parties engage in non-aggressive disputes.

According to the principle of dialogical estoppel, the state, as an agency which violently expropriates property, can be estopped by any private court from claiming a legal right to tax this property; only the party who is victim to such actions can claim any rights.  In this way, the second function of a state (taxing), cannot be rationally legitimated through public law.  Furthermore, a judge in disputes accepts the same presuppositions of argumentation as the disputants.  Whilst, dialogical estoppel requires a judge also come to court with ‘clean hands’, i.e. consistent prior behaviour, the state must use aggression to maintain its position as a judicial monopolist.  By aggressively ‘outlawing’ adjudicative services by other parties, the state can be rightly estopped from adjudicating in civil disputes.  Also, the state cannot claim a right to prevent competitors from providing judicial services; as the state must resort to irrational and violent means to maintain this territorial monopoly of ultimate decision making, it cannot rationally declare illegal any act by private courts to estop these state activities and claim the right to avoid similar treatment.  This necessarily results in a performative contradiction.

The conventional wisdom regarding the state is: ‘The same coercive power that allows [the state] to protect property rights and provide public safety also allows [the state] to confiscate private property and abuse the rights of their citizens.’[13]  But this is erroneous.  It is not that the state either protects or violates one’s private property rights; in Hoppean language, before the state monopoly can produce the good of judicial service, it must first produce the bad of invasive violence, inconsistent with the justice it seeks to provide.  Thus, the contradiction of the rights violating rights protector.

Conclusion

The state, defined as a coercively taxing, territorial judicial monopolist, is indeed a ‘crooked’ judge.  The state contradicts itself by seeking to aggressively maintain a monopoly of judicial services, contrary to the private property rights presupposed by the act of civil disputation.  Only private systems of governance, that is, private courts enforcing private law, can be consistent with the presuppositions of argumentation as these alone rely on non-coercive means of providing judicial services.

As to how this might be achieved, perhaps there are lessons to be learned from pre-modern Europe: Roman law was developed privately and medieval scholars of Catholic canon law were likewise influenced to develop their own comprehensive system of law and governance for the Church, an institution central to medieval culture, politics, and higher learning.  This formed the basis of Civil law and was implemented across Europe.  In the Common law tradition too, before the rise of states proper, a private system of law arose out of custom in which imperium was supposed to be the servant of dominium, sovereignty subordinate to property, the sovereign having the power to enforce, not to create the law.  Here too, the Church played the role of the spiritual sword working with and keeping in check the temporal sword of the state for the public good, ensuring Natural Law was upheld.

As our understanding of Natural Law evolves, revisiting the systems which gave rise to Western law seems ever more pertinent.  Could the irrationality of the state system of government thus be resolved through the empowerment of our national and cultural institutions, such as the Church, with the responsibility to privately develop the law sovereigns are to enforce?  Praxeological jurisprudence and the doctrine of dialogical estoppel provide the rational framework to accomplish this.  Certainly, this would make for interesting further study.

Notes

[1]     Hoppe, H. (2006) “The Idea of a Private Law Society” – https://mises.org/library/idea-private-law-society (30/02/2016)

[2]     Van Dun, F. “Argumentation Ethics and The Philosophy of Freedom” Libertarian Papers 1, 19 (2009).

[3]    Hoppe, H. (2006) “The Idea of a Private Law Society” – https://mises.org/library/idea-private-law-society (30/02/2016)

[4]    Graf, K. ‘Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice’. Libertarian Papers. 3, 19 (2011).

[5]      Ibid.

[6]     Von Mises, L. (1998) Human Action: Scholar’s Edition. Alabama: The Ludwig von Mises Institute. p.32

[7]   Von Mises, L. (1957) Theory and History. New Haven: Yale University Press. p.1

[8]   Graf, K. ‘Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice’. Libertarian Papers. 3, 19 (2011).

[9]    Hoppe, H. (1993) The Economics and Ethics Of Private Property. Boston: Kluwer Academic Publishers. p.342

[10]    Ibid. p.320

[11]         Kinsella, N. S. (1996) Libertarian theory of punishment and rights, a. Loy. LAL Rev., 30, p.607.

[12]             Hoppe, H. (1993) The Economics and Ethics Of Private Property. Boston: Kluwer Academic Publishers. p.345

[13]  Fukuyama, F. (2004) State-Building: Governance and World Order in the Twenty-First Century. London: Profile Books. p.1

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