Libertarian Law and Legal Systems Part One – What is Libertarian Law?
Libertarian Law and Legal Systems Part One – What is Libertarian Law?
By Duncan Whitmore
One of the more fascinating but less discussed areas of libertarian theory is how law and legal systems will operate in a libertarian society. To complete such a survey in its entirety would, no doubt, take a lifetime of study and authorship of one or several treatise-length works. We shall, therefore, be placing a very necessary limit to the scope of this survey by concentrating on where, why and how legal liability would arise in a libertarian society – in other words, our primary question will be what are the causative events that trigger legal liability in a libertarian society, and how will legal bodies develop and apply the law in accordance with libertarian principles? We will not be exploring in too much detail the further questions of legal responses to liability such as punishment, retribution, restitution and so on, nor will we be looking into the question of how competing police and civil or criminal court systems might operate (except, as we shall see below, to contrast them to state-based legislative law-making systems). Even though the treatment of the topic of liability alone will still contain many omissions and areas requiring expansion with more detail, we hope to lay the foundations of how libertarian law might operate.
This first part of this five-part series will examine what law is from a libertarian perspective, how different areas of the law can be categorised, and how legal principles will arise in a libertarian society. Part two will investigate how libertarian legal systems will recognise self-ownership and the original appropriation of ownerless goods. Parts three and four will explore the laws of consent and of crimes/torts respectively while part five will deal with some miscellaneous but nevertheless significant considerations.
The assumption being made throughout this survey is that parties to the legal system are trying to create, discover and apply the law in a conscious, libertarian spirit, and are reasoning as libertarians. We are fully aware, therefore, that we are representing an ideal standard against which we can judge legal systems which actually exist. The resulting system is not, however, unattainable when and where societal institutions and incentives are geared towards promoting social co-operation (as opposed to promoting violence, plunder and pillage), even if legal parties, professionals and adjudicators are not explicitly aware of a libertarian conception of law. Indeed, much of what we uncover below may well bear a resemblance to early, customary and conventional “bottom-up” forms of law that emerged prior to our modern day, state managed, “top-down” legal systems. We will not, however, have space to consider in detail what would be required in order to transition from today’s state affairs towards this libertarian ideal, and we are, instead, assuming the latter as a given.
What is Law?
The question “what is law?” has caused a fierce and unsettled debate in the history of jurisprudence.
The main bone of contention has been between a school of thought known as legal positivism on the one hand and natural law on the other. As a very crude summary, positivism states that the existence and validity of a law is dependent upon its formal characteristics while analysis of its substance or content is a separate consideration. To give a deliberately exaggerated example, for the positivist a law mandating that all ginger-haired people be shot could still be a law depending upon its source; whether that law is a just law, and whether there is an obligation to obey it is a further consideration not contingent upon the classification of the norm as a law. Natural lawyers, however, find it difficult to divorce the consideration of what a law is from the merits of that law, ultimately stating that an unjust law is either not a law or is, at least, legally deficient in some way. A third major line of thought, the “legal interpretivism” of Ronald Dworkin, appears to approach the question from an epistemological route, arguing that law and legal practice cannot be resolved without resort to moral standards and considerations, but at the same time such standards are not intrinsic to nature.
Regardless of the restricted scope of this essay, it would be futile to attempt to settle this long-standing debate here. Our preoccupation, in determining where legal liability arises in a libertarian society, is with what the law should be and we are not particularly concerned with whether, in some other society, a certain posited norm is or is not law depending on the equity of its content. However, given the important role that posited law has played in expanding the aegis of the state, we will reserve some modest, but relevant observations on this question for a postscript that appears at the end of this essay.
Nevertheless we do need to analyse precisely which aspects of law separate a legal obligation from some other obligation such as a convention, a custom, manners, or a tradition, an analysis that should be general enough to be lacking in contention in regards to the unresolved philosophical problem that we just cited. There are two aspects of law that we will explore that serve to distinguish it from other obligations.
Law and Enforceability
The first of these aspects concerns law’s enforceability. All norms are, of course, “enforceable” in one way or another. If you believe that I am behaving in breach of a moral obligation in some way then you can withdraw your association with (and funding of) me, a situation that may cause me to assess my behaviour. However, such enforcement does not compel obedience and, indeed, should I accept your withdrawal I may decide that I wish to carry on with my behaviour regardless.
The difference with a law, however, is that it is a violently enforceable rule – that is, adherence to it may be compelled by the use of force.1 The state, of course, does this in our society today. If you break a criminal law then they will lock you up in prison, and in a worst case scenario, kill you, especially if you try to defend yourself. If you break a civil law then they may confiscate some of your property.
With a mere manner or custom, however, this is not the case. If I insult my host by breaking wind at his dinner table a gang of heavies does not smash down the door before dragging me away. The host may choose to exclude me from his house, of course, and it is possible that I might then be dragged away; but this violent ejection would be because the withdrawal of the host’s invitation to stay means that I am now invading his private property, not because I displayed bad manners per se.
This characteristic of a law being a violently enforced social rule we will carry forward into our libertarian world, even though we do not necessarily know who would be the enforcer. It could be oneself where self-defence is required; or a private security agency or arbitrator; or, for minarchists, it may still be the state itself. All we need to know is that the incurrence of legal liability would result in the perpetrator being exposed to violence in order to enforce that law.
What, therefore, are the causative events that will trigger this liability, this subjection to violent enforcement, in a libertarian world? To answer this, we need to recall the fundamentals of libertarian ethics of self-ownership and private property. We will not enter an extended justification of these principles here; rather, we will simply restate them and assume that they are true.
The question of what is ethical behaviour arises from the physical scarcity of goods in the world. The products of answering this question – social rules – are designed to avoid or otherwise resolve interpersonal conflicts arising from the fact of scarcity.2 The libertarian answer to this question is that every individual human being has the exclusive right to possess his own body free from physical molestation by other human beings. Similarly, everyone has the right to control, exclusively, the goods of which he is the first user, i.e. those goods with which he has “mixed his labour”, or over those goods that he has received from another in voluntary trade. These two types of right are ownership rights – self-ownership and ownership over external things (“private property”) respectively.
Full ownership is not the only type of right over property that one may possess. A category of rights falling short of it is easements. In one instance, easement rights fall over additional goods as a result of the acquisition of and use of the primary, owned good (provided that the additional goods are also ownerless). For example, I may homestead a plot of land on which I build a fire. The smoke from the fire blows onto neighbouring, ownerless land. I thus obtain an easement to keep blowing smoke onto this latter piece of land that I have not homesteaded. Or I may walk across the neighbouring, ownerless piece of land to reach the river, and thus secure an easement to cross the land. In each of these cases a latecomer to the ownerless land is bound by these rights, and his act of homesteading this land may not supersede them.
Critically, however, these rights, in libertarian theory, are violently enforceable – that one may not only pronounce his rights to his body and property, but that he may use violence to enforce them. In a libertarian world the only the time when violence may be used legitimately is against someone physically aggresses against the property over which you have these ownership and easement rights. As laws are, as we have said, violently enforceable social norms, it follows that all libertarian laws will be concerned with enforcing these rights to oneself and one’s property. Norms that that do not protect private property and enforce the non-aggression principle should either be categorised as some other, non-violently enforced moral obligation (for example, “one should look after one’s family”); or, if the norm itself breaches the non-aggression principle (for example, “A should take a portion of B’s income”), then it should be classified as being a breach of the law, or as an anti-law.3
Is it possible for us to further categorise these norms? Peter Birks, who was an especially keen advocate of mapping and categorisation of concepts in English law, suggested that causative events of legal liability could be divided into four classes:
- Unjust enrichment;
- Miscellaneous events.4
“Wrongs”, the category that most immediately springs to mind whenever a lay person is asked to name a law, are instances where a person initiates some proscribed behaviour against another, without the parties necessarily having any prior relationship. Crimes (such as murder and assault) and torts (such as causing death or injury through a careless accident) are all wrongs, the wrongful behaviour itself being sufficient to trigger legal liability, usually coupled with an examination of whether the defendant deliberately intended the harmful outcome or whether it was just the result of negligence.
Events categorised as “consent” are those where a person has given his prior authority to be legally bound if he performs (or fails to perform) a specified action. The largest of such events are, of course, breaches of contract – behaviour that, ordinarily, would attract no attention of the law but for the fact that a person consents to be bound.5 For example, I may contract to sell you a car for an agreed price and then fail to deliver the car. The act of retaining my car and failing to deliver it to you is not, ordinarily, something that would attract legal liability, but because I consented to be legally bound by the terms of the contract then my failure triggers this liability. Another area of the law that may fall under the heading of consent is most of trusts law, where property is held “on trust” by one person for the benefit of another (although the trust itself is better categorised as a type of property arrangement that is the result of a causative event, as courts can also impose trusts following a variety of circumstances).
“Unjust enrichment”, the third major category of causative event, comprises all situations where one party receives a benefit at the expense of another that the law deems to be unjust in some way. The classic example is the mistaken payment of a non-existent debt. If, for instance, I owe you £10 – a legitimate debt – and accidentally pay you £20 in settlement, then it could be said that you have been “unjustly enriched” as you were not owed the additional £10, and may be liable to make restitution of the overpaid sum.
While this categorisation suggested by Birks provides a degree of conceptual clarity, we have to admit as libertarians that it is not sufficient. All laws in a libertarian society are proscriptions against aggression and violence against a person’s body and private property. Thus, all causative events of legal liability might be described as “wrongs” against person and property, and so aggression against property – i.e. the breach of the non-aggression principle – is the golden thread running through the fabric of legal liability in a libertarian society. As we shall see, even when a contract is breached the resulting legal liability arises as the breach is an affront to the private property of the other contracting party. Our investigation will therefore concern the circumstances in which the non-aggression principle is breached and how the law may respond to such breaches. Nevertheless, in carrying out this investigation, the distinctions in Birks’ framework certainly have their use in understanding the different types of property distribution in which the non-aggression principle is violated, and we shall proceed to follow it in our analysis.
The second major aspect of law that we need to explore is that, in contrast to other social rules, legal norms and principles cohere into a definable and discernible legal system. When we speak of “the law” we mean that there is a body of laws and we are expected to know what they are, or at least have the ability to find them out. Even in so-called hard cases where the law is not necessarily clear we can expect the subsequent judicial “discoveries” to form part of the law.
Why do we need this system of law? Other norms may, of course, be explained, codified, or tacitly understood as belonging to a body of rules to which we should adhere. But why is there this exalted and enhanced status for law? Why does the law exist as a body of meta-norms that require this systemic determination?
The reason lies in the uniquely physical aspect of law’s enforcement. As we know from “Austrian” economics the valuations of individual humans are expressed through their physical actions. A person always devotes his action to achieving his most highly valued end first. With norms such as customs, traditions or manners, where physical enforcement in unavailable, all parties are able to achieve their most highly valued ends. This is because non-physical enforcement still leaves each party intact with his person and property so that he can arrange his affairs as he pleases. In other words, there is no a priori reason to suggest that one party has lost while another has gained as a result of non-physical enforcement.
With laws, however, this is not the case. The uniquely violent enforcement of laws results in the enforced party being physically restrained from carrying out his intentions to the benefit of the enforcing party. The latter, therefore, in being able to continue to act, achieves his highest valued end whereas the former, the party restrained, cannot do so as he is prevented from acting. There is, therefore, a transfer of wealth that takes please with the enforcement of a law, a transfer which raises the moral dimension of such enforcement to a whole different level.
Coupled with this is the strong degree of power that law’s enforcement confers upon the enforcing party and the potentially devastating effects it can have upon the enforced party. It is very easy, for example, for us to physically intervene in someone else’s person or property to achieve what we want, arguably much easier than persuasion or offers of trade. Similarly, the effects upon the victim are much more profound than anything non-physical, possibly including even death if the violated norm is deemed so to permit. It is, therefore, extremely tempting for people to masquerade norms as just laws when all they really do is redistribute wealth from one party to another. Indeed, most libertarians will (at the very least) be sympathetic to the idea that this is what most modern positive laws, enacted by democratic governments, attempt to achieve.
Because these aspects do not apply to other norms it matters far less if they are only spoken, tacit, incoherent or based upon subjective appreciation. However the powerful effect of laws causes us to demand a more objective and coherent method of their determination. Indeed, one interesting question in the “what is law?” debate we mentioned earlier is whether it is possible to suggest that any system of law, which implies that there is at least some semblance of the rule of law, is not morally neutral and that certain prescriptions and procedures for determining, disseminating and enforcing the law may themselves have moral value. In short, having such a system can be a good thing in and of itself. This is remains true, residually, for even our statist legal systems which have monopolised legal decision making authority for their own ends. For instance, however much we may cry in horror at the content of some of the legislation that is passed in the UK today, it is still, for now, the case that the completely arbitrary and capricious behaviour of the present ruler is restricted. For instance, the Prime Minister of the day cannot simply click his or her fingers and have you executed. It is, in fact, the gradual erosion of the system that has inherited its structure and principles from previous, less centralised ages that is threatening this kind of restriction – for example, the removal of the double jeopardy rule, selective suspension of habeas corpus, civil asset forfeiture, retrospective criminal laws, and the implementation of “secret courts” and adjudicators not subject to the usual rules of due process.
The necessity for the existence of coherent a legal system points also to the need for specialists in the administration of justice as opposed to any kind of unilateral, “vigilante” actions between victim and perpetrator. In other words, legal procedure – the investigation and deliberation of aggressive acts, as well as the execution of an appropriate response – must be subject to the division of labour in just the same way as the production of food, clothing, shoes etc.
The typical justification for this is that an alleged aggressor should have a right to due process, encompassing specific rights such a presumption of innocence, right to a defence, a fair trial, etc. While these are always likely to form part of a sound legal procedure, the reasons for this are actually practical and epistemic rather than conceptual. From a wholly theoretical perspective, if A really does steal from B then B is justified in taking unilateral action to recover the stolen item (plus extract a proportionate degree of compensation) from A. A public trial is not necessary in order for us to state that B is entitled to enforce his rights against A.6 Indeed, in obvious, minor cases unilateral action may be most appropriate. If an adolescent , in plain view of witnesses, pinches a packet of crisps from a shop, one’s own apprehension of the errant youth before relieving him of the stolen item and banning him from the premises is probably sufficient to deal with the matter without any contention. The problem comes, however, in more difficult cases where the task of apprehending and extracting compensation from the perpetrator would be unduly burdensome for a lone individual, or where the questions of fact (what actually happened) or the questions of law (whether what happened was an aggressive act) are unclear. It is at this point when the need for specialists arises. To give an analogy, we might be content to self-medicate with paracetamol to cure a headache; but we are unlikely to treat ourselves for cancer or perform open heart surgery on our own bodies.
The first problem – apprehending a perpetrator and extracting compensation from him – is not limited to the fact that he might be physically stronger. Such endeavours also require the co-operation of members of the public to, say, inform on the whereabouts of the perpetrator or to hinder his progress in evading detection or avoiding justice. A bank, for instance, is not likely to, say, freeze A’s assets on the mere demands of B, a (to them) random member of the public. If, however, there has been a documented trial by a reputable adjudicative service in which A’s guilt has been demonstrated objectively through stringent procedures then the bank may be willing to co-operate in extracting compensation from A. With such assuredness the bank now knows that it will not simply be frustrating a loyal customer or itself become an aggressor. In fact, it may even lose custom from regular patrons if it fails to co-operate in punishing A following a sound legal judgment.
Second, if the questions of fact are difficult to determine, then B’s limits to his own investigative abilities (not to mention the flaws in his subjective recollection of events) may lead him to wrongly identify C, rather than A, as the perpetrator, and/or to assess, incorrectly, the extent of the aggressive act inflicted by A. There is, therefore, a risk that both B (and any other people whom he recruits to assist him) become aggressors themselves if they attempt to take responsive action against C or to forcibly extract too much compensation from A than is justified by A’s initial, aggressive act. Given that nearly all criminals wish to evade detection and/or downplay the extent of their crimes, these risks are likely to be the norm rather than the exception, and the result may be an escalating spiral of tit-for-tat retaliations which eventually destroy any ability to work out who is now the aggressor and who is the victim.7 It is, therefore, clearly in the interests of both the accuser and the accused to recruit specialists so that all of these risks are reduced and are, indeed, borne by the investigative/adjudicative service. In fact, in order to execute its judgments, it is likely that the latter will agree to bear the risk undertaken by all parties (such as banks) who co-operate in doing so. Thus, if a judgment should later turn out to be wrong then the adjudicator would bear full responsibility for compensating a wrongly convicted defendant for the actions not only of itself but also of all parties who co-operated in enforcing the wrongful conviction. Thus, investigative and adjudicative bodies that adopt lax and sloppy legal procedures that are the least conducive to determining the truth will themselves become aggressors and be bankrupted through compensation claims and lost custom in favour of more competent practitioners. In other words, the burden of risk and the production of quality are placed in the hands of entrepreneurs in the field of justice in exactly the same way as in the pursuit of any other valuable end.
Finally, difficulties in determining the questions of law may be even more critical, and will usually arise in novel situations or in cases where A’s act is close to the boundary between aggressive or non-aggressive behaviour. In other words, we may not know whether A’s act should be regarded as aggressive in the first place, and A may believe, quite sincerely, that his action was lawful while B may feel genuinely aggrieved by what A did. Resolution of such an impasse cannot simply be a matter between A and B, for A and B act not only vis-à-vis each other but also within a community, and the precise boundaries between aggressive and non-aggressive behaviour are determined by community standards. (And, of course, they will probably get to the point where they realise that deference to a third party’s judgment is the only reasonable solution.) This will become clearer in the section below.
It is worth reiterating that the requirement for law to cohere into some kind of system in no way implies that it must be overseen by a monopoly agency in order to avoid “conflicts” or “inconsistencies” – quite the opposite. The adjudication and application of law by decentralised and competing bodies is more likely to result in fidelity to a firm foundation of widely accepted principles than the monopolisation of law by the state, which has simply resulted in reams of arbitrary and unprincipled legislation. Indeed, we can see this also in other endeavours. Sciences such as chemistry, biology and medicine also cohere into respective “systems”, and yet state monopoly control over scientific discovery and promulgation has often led to its corruption and the servicing of malevolent ends.
In fact, equating legal understanding with scientific understanding is particularly apt, as objectivity is an extremely important element of the law. It is this aspect that we shall now explore in more detail.
Law and Objectivity
We know from “Austrian” economics that all valuation is subjective, and that all action in relation to property ultimately concerns ends that are held by an individual human that reside only in that particular human’s mind. All conflicts between these ends, therefore, are also products of people’s minds, and they sit wholly within the mind. There is no value to any good unless a person thinks that there is, and there is no conflict over that good unless one person’s valuation interferes with someone’s else’s.
This realisation helps us to address the question of precisely which actions are aggressive and which are not. For the sake of argument we would say that any uninvited physical interference in one’s property by another is aggressive, but many of such interjections are simply innocuous. If I was to light up my house like Piccadilly Circus the resulting light pollution would surely give the neighbours grounds for complaint. Yet if I just live a normal lifestyle the lamp from my living room in the evening may also beam light waves from my property on to theirs. Both are the same kind of act, just to different degrees. Where is the cut-off point of light beam intensity where peaceful behaviour stops and aggression warranting legal liability begins?
The answer is that a physical collision attracts no legal liability unless it is perceived by the invaded party as an interference in his ability to use his property for his own ends. As we said in a previous essay on Misesian praxeology:
Aggression occurs at the point at which a physical interference in another person’s body or property hampers that person’s ability to fulfil his ends with that property as viewed by him. Where this point lies is dependent upon human perception, which occurs in whole, concrete steps. It is not dependent upon the detection of some minute, physical incursion traceable only with scientific instruments.
In other words, the reason why the light from your living room lamp shining out of your window onto neighbouring property is not aggressive (and, thus, not illegal) is because the neighbours do not perceive such light as an interference with their ability to enjoy their property, whereas if you were to coat your house in neon lights they probably would.
However, laws are social rules – they arise in order to govern interpersonal behaviour. The purpose of self-ownership, private property, and any legal system that is based upon those institutions is to publicly broadcast these subjective intentions and valuations so that other people know how to behave and avoid any physical contest. Avoiding conflicts over property would be futile if I did not know which property is yours and you do not know which property is mine. In the words of Hans-Hermann Hoppe:
[H]uman actors must be able to determine ex ante, at any moment in time, what they are and are not permitted to do. In order to determine this, there need be some “objective” borders, signs, and indicators of ownership and property as well as of wrongful invasion of said ownership and property. Similarly, when considering a case ex post, judges must have “objective” criteria of property and aggression to make a determination for or against a plaintiff.8
Here, then, we have something of a problem, for the content of a person’s mind – where all valuations and conflicts exist – cannot be demonstrated in such a public way. I cannot know, for instance, if you think that you have ownership over a car or a piece of land and any speculation on my part would be fruitless. From the point of view of purely theoretical ethics, if A wants to sell a widget to B in exchange for money, it may be sufficient for them only to think in their minds that they have so consented to this transfer of property. Theoretical ethics may conclude that the money now belongs to A and the widget may belong to B. But such a situation is woefully inadequate to create objectively identifiable legal liability. For how are other people, in the absence of telepathy, supposed to know that these relations have been created? How do either A or B expect to persuade an adjudicator that the other party is liable in the event that the latter breaches the alleged contract?
Rather, what matters in any situation is not what is thought subjectively but, the concrete action that is objectively interpretable. As we said above, we know that a person’s valuations are always demonstrated by his actions, and actions are publicly viewable. A person carries out a certain action because that action is devoted to means that will bring about valuable ends. From this it is possible for other humans to interpret the action and hypothesise upon the subjective valuation. Therefore, any event giving rise to legal liability needs to consist of concrete action that can be evidenced and then interpreted according to publicly acknowledged standards in order to determine where the legal rights and obligations lie. In other words, how your objectively viewable actions demonstrate your intentions is the element that lies within the realm of legal interpretation and regulation, not those intentions themselves.
What kind of problems will a libertarian legal system face in this regard?
First of all we have the concept of self-ownership itself, the heart of libertarian ethics – when does this ownership begin? Is it at birth, at conception or somewhere in between such as at the point of foetal viability? Or do sperm and egg cells have the right to self-ownership too? What do these entities need to do or possess in order to demonstrate that they have self-ownership?
With external goods, which acts of mine are necessary in order to determine when a good becomes legally owned by me? Is touching it enough or do I need to do something more concrete? If I subsequently abandon my owned good, which acts of mine are sufficient to bring about abandonment and return the good to the realm of the ownerless? Obviously just walking off my property to go to the shops would be a ridiculously low threshold but where should this threshold be set? Perhaps after a year or so? Five years? And, if any of these, why?
Some of these problems we can attempt to tackle theoretically. We can, for example, theorise that sperm cells, devoid of any rational consciousness, will not be accorded the right to self-ownership. But for many more of these questions it will not be possible to derive their answer by deduction. Rather, legal systems will be tasked with interpreting behaviour from the point of view of custom, behavioural conventions, traditions and, indeed, economic expedience.
For example, if A wishes to sell a widget to B, how should they conclude this transfer so that it is subject to legal enforcement? Do they have to say something? Do they have to make some bodily signal (such as putting one’s hand up at an auction) that is customarily taken as an intention to make a transfer? Can B just give the money to A and then A the widget to B with no conversation whatsoever? Or do they have to draw up a telephone-directory length contract spelling out clearly all of the rights and obligations that each of the parties holds?
Compounding this difficulty is the fact that different cultures will have different customs and conventions that call for different legal interpretations of an action – the same action meaning something entirely different in one country from what it does in another. But so too will different situations within the same culture have different requirements. The sale or lease of a large property, for instance, may require weeks of negotiations and drawing up a specific contract, whereas such a necessity would clearly be wasteful if you just want to buy a chocolate bar. Indeed we are used to some of these customs and conventions generating legal liability in our own experience. If I go to a petrol station and fill my car with fuel it is assumed that I have the obligation to pay for it and that the garage owner is not making a gift of the fuel to me, even though we have not exchanged any words. Similarly if I sit down at a restaurant and order from the menu it is assumed that I will pay for the food after I finished my meal. If, on the other hand, the proprietor says “on the house” then this social custom would be sufficient to indicate that a gift is being made to the guest and it would be unjust for the proprietor to attempt to charge me upon leaving. However we can quite easily imagine in another culture that the situation would be entirely different. Ruritanian tradition might state that if you sit down as a guest in an establishment and food and drink is served at your table with no mention of payment then the host is considering you as his guest rather than his customer, and so you are not burdening yourself with any legal obligation to make payment. The same actions in different cultures and traditions are, therefore sufficient to generate different legal outcomes.9
What will happen is that, over time, courts will build up a body of jurisprudence that defines the kinds of behaviour that will be viewed as prima facie aggressive, or the type of behaviour that prima facie grant rights over property in contracts. In cases brought before the court, what will matter from a legal point of view is not what you subjectively intend from or think about any situation in which you find yourself; rather it is how your behaviour demonstrates your intentions, or how you held yourself out as intending and how that behaviour can be interpreted, an interpretation that will not only be based upon the physical motions of the action itself but in its customary, traditional and conventional context.10 In some cases, people may find themselves liable for outcomes they did not intend, but by their behaviour they demonstrated a contrary intention. And in other cases they may not be able to enforce that which they did intend because their evidenced action gave no indication of that intention. This may be very unfortunate for the individual concerned but legal demarcation of rights and obligations has to be publicly evidenced and interpretable and this, ultimately, is all that matters. Putting up your hand at an auction may not unbind you from making a bid simply because you were trying to wave at someone.
This fact – that we do not know precisely which behaviour will give rise to legal liability – may frustrate “Austrian” economists and libertarians who so are accustomed to reaching conclusions a priori. Suddenly, here, we find ourselves in the position of having to hold our hands up and say “I don’t know!” what the legal outcome may be to a particular situation. It is, however, something we have to accept, just as we do not know who will build the roads in a libertarian society or how the sick will be cared for. “I don’t know” is a viable answer to a question when that question is not strictly theoretical.
However we do not necessarily have to worry that legal systems will outlandishly interpret behaviour that is manifestly one thing as being something else (at least not any more so than our contemporary legal processes, given that they bear the same burden). No legal system, even one bent on enforcing statist tyranny, can succeed in its purpose if it cannot, for the most part, correctly interpret objectively viewable behaviour. A brutal dictatorship needs to correctly sift out its enthusiastic supporters from its political dissenters just as much as libertarian legal order needs to ensure that your intention to buy a sandwich doesn’t lead you to being legally liable for a house. This is before we even consider the relative superiority of decentralised and competing adjudicative bodies who would gradually weed out the least competent from among their number.
Legislation or Judge Made Law?
Although we are not examining specifically the likely composition of legal bodies and adjudicators in a libertarian legal order, it is worthwhile looking at the difference between legislation and adjudicated cases as sources of law.
In today’s society we are used to the generation of the system of law through the enactment, administration and enforcement of laws by state entities, in particular legislatures. In addition to our willingness today to acquiesce to the normative validity of positive law (indeed, simply stating that a rule is “the law” seems to be enough to require subservient obedience), we have come to view legislation as being synonymous with law at the expense of law and legal principles discovered through adjudicated cases.
As libertarians, however, we must view the primacy of legislation – laws enacted by the state, the very entity that is a threat to freedom – with suspicion. Stephan Kinsella has written a compelling case for why legislation is incompatible with freedom and that only a system of decentralised law determination can adhere to libertarian principles.11 To the very valuable points that Kinsella makes we will add one more here.
Law, being a subset of social rules, arises, as we said above, in response to conflicts born out of the situation of scarcity. These conflicts, however, are a product of the human mind and do not exist otherwise. Only when two people recognise a conflict is there any need for a social rule to determine who has the right to the scarce good. If there is no conflict then social rules are simply superfluous (for instance, there are no laws governing the apportionment of breathable air because no one perceives any conflict over the supply of breathable air). With judge-made or decentralised law-making that is born out of real cases the resulting law is a product of just that – real conflicts between real people.
Legislation, however, is not a product of these conflicts between individuals but a product of conflicts between individuals and the state. The state decides unilaterally that there is a conflict and then possesses the means – legislation – to resolve the conflict in its favour. In front of a court or arbitrator individuals have to prove the substance of their rights, whereas the state can simply enact them at will. Hence, in a decentralised law-making system the volume of law will remain relatively restricted and, while determined by heterogeneous bodies, will be united by the threads of common and recurring principles. This will be compounded by the discipline imposed on private courts and arbitrators to keep costs low and certainty of outcomes in like cases high, the ignorance of which will simply cause them to lose custom to those providers who do not.
Legislation, on the other hand, grows with the metastasising state, a state unbound by the discipline of cost and competition, overwhelming the citizenry not only by its size but its lack of coherence and its technicality – a lack of coherence resulting from its basis on the whim of the governing parties rather than any sound body of principle. Indeed, we are now in the position where it is possible for each person to technically break several laws each and every day. Not only this, but laws can change from enforcing one end to enforcing the precise opposite with the result that nobody knows precisely where their rights and obligations lie.12 Only the modest blessing that state mechanisms tend to be slow and unwieldy in enacting and enforcing its desires offers any comforting respite. As Kinsella also recognises, the aura of uncertainty that is created by such a situation has profound economic effects, raising the rate of time of preference, lowering the rate of saving and investment and retarding economic prosperity.
The most that we could possibly say for the role of legislation in a free society is that it would be enacted to remove from decentralised law some inconsistency, lack of clarity, or heinous and obvious injustice. However, one even has to question whether this would be necessary. Most of the occasions on which such problems have arisen in the English common law resulted from the monopoly privilege enjoyed by that system and the consequent artificial restrictions and rules it was able to impose upon itself.
For example, the doctrine of binding precedent, or stare decisis – the rule that later courts are bound by the previous decisions of at least a higher court – has served to preserve bad principles in the common law for decades simply because they formed part of the ratio decidendi of some earlier case. Even though the House of Lords, then England’s highest court, removed this restriction from themselves in 196613, the further belief, on the part of the judiciary, that they are subordinate to the legislature and should not attempt to “legislate from the bench” only invites the necessity of legislation to overrule well entrenched but bad doctrine.
One example was the rule, part of the doctrine of privity, that only parties to a contract could enforce the terms of that contract whereas third party beneficiaries of the same contract could not. So if A contracts with B to pay C, B can enforce the contract whereas C, as a third party, cannot. The effect of this was to render C unable to enforce his title to property that he had gained, a fact that was not lost on even the non-libertarian minds of the English judiciary and academia. But so well entrenched was this doctrine that judges in successive cases refused to overrule it, and the manifest injustice was only finally removed when Parliament reformed the doctrine of privity in the Contracts (Rights of Third Parties) Act in 1999.14
Clearly these restrictions would not exist in a decentralised system of law-making. No court is absolutely bound by what another has ruled and none would shy away from overruling the bad decisions of other courts because of some illusion of having to defer to legislative supremacy. In any case, in a decentralised system, the ultimate judges of the good law will be the “consumers” of law themselves – those who have conflicts to resolve. Those courts and jurisdictions that practise false and outlandish law will simply lose custom to those that rule justly, prudently and with a high degree of certainty and adherence to well-established principles.
One shrewd objection to the proposition that competing courts and jurisdictions should determine the precise behaviour that generates legal liability is that the justification for libertarian ethics must be circular, for example:
Q: Who determines when private property is violated?
A: Competing law courts
Q: Why are these courts allowed to compete?”
A: Because to outlaw them with violence them would be an invasion of private property
Q: Who determines when private property is violated?
Such reasoning, however, misunderstands the purpose of competing courts and jurisdictions, which is not to determine the ethical validity of self-ownership, private property and the non-aggression principle but is, rather, to determine precisely which actions will give rise to fulfil these principles. It is perfectly consistent to state that aggression against private property is theoretically unethical while stating that competing courts and jurisdictions are the best means in order to flesh out these concepts by determining the precise actions of individuals that cause them to arise in governing interpersonal behaviour – particularly if these rules need to vary according to the customary, social and conventional context.15
Having therefore laid the foundation for law and legal systems in a libertarian society, in the remaining parts of this series we shall proceed to examine the precise causative events that would give rise to legal liability.
POSTSCRIPT – Observations on the Question “What is Law?”
Concerning the primary issue of legal philosophy – whether the validity of a law depends upon its sources or its merits – the question is an unusual one in that it effectively defines the nature and scope of its own field. If the validity of a law depends upon its merits then it would seem that legal philosophy is simply an extension of political philosophy (itself a subset of ethics). Law would be merely the real and concrete embodiment of norms that we derive from our political values. If, on the other hand, the validity of a law depends not upon its merits but upon certain descriptive qualities then it seems that legal philosophy is more of a branch of sociology, looking to patterns of human behaviour – the creation of legislatures, judiciaries, and people’s recognition of the legitimacy of the resulting norms – in order to determine whether there is law.
Although there is doubtless a great deal of knowledge and understanding to be gained from purely descriptive aspects of law (and where or how they appear in different societies), we cannot, as libertarians, avoid recognising the contribution that legal positivism has made to the impression that the legal validity of positive law is a reason for its obedience. To the question why a person should or should not do a certain act, the answer that it is “the law” is taken as sufficient justification for that action or non-action without further enquiry. Even though positivists may claim that the question of whether a law is just is as important as, but separate from, the question of legal validity, if they had hoped to achieve a measure of clarity by maintaining a gulf between those questions then they must at least find it perplexing that the world today appears to languish in hopeless confusion of the two.
This does not mean to say that positivism is the only or sufficient cause of this problem, and, to some extent, positivism may be a victim of the circumstances under which law has developed by simply reacting to what it has been able to observe.
The first factor in this regard is the ambiguity – or rather, the strength – of the term “law” in the English language. In the natural sciences the term is understood to mean a fixed and (barring the possibility of falsification) immutable fact of the universe that is unalterable by human will. Indeed, the etymology of the word reveals its original meaning to be associated with nouns such as “fixed,” “set,” or “established”. The application of this same term to social rules and positive law confers upon these rules the same impression of rigidity and immovability and – in all likeliness – the requirement of compulsion and obedience. Just as people understand that they are not free to violate the law of gravity so too, as a consequence, do they feel that they may not contravene a social rule for the simple reason that it is a “law”.
This is all well and good when law is based upon ancient and seemingly immovable principles of justice. After all, the law that one should not commit murder should be immovable and rigid. However, there is also the possibility that the use of the term “law” may have granted the purely formal qualities of law a kind of force or mystique that has, in and of itself, caused people to come to regard these formal qualities alone as sufficient to categorise a norm as a law (even if the question of whether or not that law is a good one can still be answered separately). Were it the case that some other term was used to denote positive law, such qualities may have been insufficient to endow a norm as being a law in the absence of the requirement of justice. It is perhaps not coincidental that many of the significant post-war scholars in jurisprudence – such as H L A Hart, Ronald Dworkin, John Finnis and Joseph Raz – who are either promoters or critics of legal positivism, made their arguments in the English language. It would certainly be interesting to investigate the possibility in order to draw a more firm conclusion upon this point.
A more likely factor, however, is that in contrast to its early formation along customary and conventional lines, the adjudication and dispensation of law has, over the course of the centuries, come to be dominated by centralised, monopoly agencies – i.e. kings, princes, religious authorities and, today, the modern nation state. The result is that people in the modern era have not had a great deal of choice as to the sources of their law and, for the most part, have been stuck with the dispensations of whichever despot they happen to languish under. If, however, legal adjudication and discovery had been a more open and competitive process then it is very likely that any agency dispensing bad or unjust laws would come to be disrespected, distrusted, and eventually ignored. In other words the characterisation of an agency as a source of a law (and, hence, its pronouncements as laws) would depend upon the quality of the justice that the agency dispenses, and so the apparent antagonism between sources and merits would, at least to some extent, disappear.16 Moreover, all of this has now been compounded by the fact that the foundation of states upon a democratic order has served to disseminate the impression that all rules and edicts that originate from that order are just for that very reason.
The modest conclusion that we can make, then, is that any attempt to proceed upon a positivist line of thinking without greatly emphasising the importance – nay, the precedence – of the question of which norms are just and which are not will simply cause that question to recede into the background, and for the simple facts of institutions, legislatures, judiciaries and legal processes etc. to deliver a feeling of compulsion in the average citizen. It would be naive, even dangerous, for libertarians who sympathise with positivism to be inert to this aspect. As always, Murray N Rothbard provides some suitable, closing comments:
Since the law is ultimately a set of normative commands, the true jurist or legal philosopher has not completed his task until he sets forth what the law should be, difficult though that might be. If he does not, then he necessarily abdicates his task in favor of individuals or groups untrained in legal principles, who may lay down their commands by sheer fiat or arbitrary caprice.17
Part Two is now available.
1By this we mean only that the proposition that a norm classified as law may be violently enforced is generally accepted. We are not (yet) suggesting that a norm’s classification as a law depends upon either the ability to enforce it or on the legitimacy of doing so. Interestingly, much legal philosophy, while recognising the need for “social institutions” such as courts and police to “enforce the law”, do not state or examine explicitly this uniquely violent aspect of law’s enforcement.
2Every political philosophy, whether it advocates anything from a socialist tyranny to individualist anarchy, is ultimately a theory of who may have exclusive rights to physical goods.
3Because of this overlap between the status of law as violently enforceable social rules and libertarian’s sole concern with the permissible use of violence, it is often stated that libertarianism is “merely” a theory of just law. See, for instance, Williamson, Ken and Walter E Block, Is Libertarianism Thick or Thin? Thin!, The Italian Law Journal, Volume 2, No.1 (2017). While this is true, it understates the case, for libertarianism also serves as an admittedly “thin”, but nevertheless firm foundation for wider interpersonal moral theory by preserving the moral agency of each individual.
4Peter Birks, Unjust Enrichment, Second Edition, Oxford University Press (2005), Part I.
5Or the contracting party has otherwise made some kind of indication of being bound. Theories of contract have often been based on anything but consent. See Randy E Barnett, A Consent Theory of Contract, Columbia Law Review (March 1986) 269.
6Cf. Randy E Barnett, Whither Anarchy – Has Robert Nozick Justified the State?, Journal of Libertarian Studies, Vol. 1 No. 1, 15-21 at 17-18.
7There is also the possibility that third parties, who are entitled to intervene to defend an innocent victim, may confuse B’s attempt to extract compensation from A as an original act of aggression if the situation itself provides no immediate clue as to who is the aggressor and who is a victim. For an excellent discussion of the problem of third parties when it comes to seeking justice, see George H Smith, Justice Entrepreneurship in a Free Market, Journal of Libertarian Studies 3, No.4 (1979): 405-426.
8Hans-Hermann Hoppe, Property, Causality, and Liability, The Quarterly Journal of Austrian Economics, Vol. 7, No. 4 (Winter 2004), 87-95, at p. 87.
9The author is reminded of an anecdote told to him by a colleague. Entertaining a prospective client from Africa, my colleague served her tea and coffee with a selection of biscuits. Expecting his guest to have only one or two biscuits with her drink, to my colleague’s surprise she proceeded to eat all of the biscuits. It was only after the meeting was concluded that my colleague realised that what would be taken as an indication of greed and rudeness in the UK might be a sign of politeness and courtesy in the culture of his client – that, where she came from, to be served a plate full of food and to not eat all of it would be a grave insult to one’s host. Of course no legal liability was generated in this scenario but it goes to show how the same actions can have different meanings and demonstrate different intentions in different cultures.
10At the very least we might say there is a presumption that an interpretation of objective intention is valid unless it is rebutted by evidence of differing subjective intention.
11N Stephan Kinsella, Legislation and the Discovery of Law in a Free Society, Journal of Libertarian Studies 11:2 (Summer 1995), 132-181.
12The old adage “ignorance of the law is no defence” was applicable when the law was understood to be restricted to well understood principles that were based on common morality, ignorance of which would indicate such an anti-social and anti-human character on the part of the perpetrator that an acquittal on such grounds would be unthinkable. This clearly does not apply when government writes legislation faster than a person can read and the maxim, these days, is simply touted as a motto of self-justification by the state and its enforcers.
13Practice Statement,  3 All ER 77.
14Part of the original problem and, indeed, of the dissent to the 1999 Act is a misconception that contracts are binding promises, something w e shall explore in part two. See R Stevens, The Contracts (Rights of Third Parties Act 1999), (2004) 120 Law Quarterly Review 292.
15Cf. Robert Murphy, Chaos Theory, Second Edition, Ludwig von Mises Institute (2010), pp. 27-9.
16This resonates somewhat with Ronald Dworkin’s notion of “law as integrity”: “[P]ropositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice.” Ronald Dworkin, Law’s Empire, Hart Publishing (2003), p. 225.
17Murray N Rothbard, Law, Property Rights, and Air Pollution, Cato Journal 2, no. 1 (Spring 1982), 55-99, reprinted in Id., Economic Controversies, Ludwig von Mises Institute (2011), p. 168.