“Freedom”

I am debating the issue of, as K.M. frames it, “Is a monopoly on the use of force the logical outcome of applying the ethics of egoism to the functioning of a society?” Plainly speaking, is the existence of the State justified? It started over my response to a comment by Pravin here. I was responding to K.M.’s question last night, but stopped myself. I thought this would be the right time to finish reading Leoni’s “Freedom and the Law,” something I started in Dec-Jan. Instead of adding unrelated, tangential stuff to the forthcoming response, I thought I could quote some interesting bits in some posts of mine.

I had started my response with these paragraphs-

What is an “unfree” market? Let me ask the question the other way round – what is a “free” market? It is a market in which the State does not interfere (the only “interference” would be of the enforcement of contracts kind). Political/ economic freedom is always defined in terms of the State, not in terms of non-State actors. The latter don’t lay any claim to morality when they engage in fraud, theft, murder, confinement etc. It is the State which does that. So, an “unfree” market would be one with State interference.

Sometimes, I do use the terms “market” and “free market” differently. That’s because a “market” can be anything. Markets other than the free market, gray market and black market exist. Such other markets can work beyond even “proper” laws. There can be a market in stolen goods, in women, in children – anything. But when I am talking about politics, and specifically laws, I am surely referring to the free market. Even assuming a “market” where the State is a participant, or controller, why would I claim that a market controlled by the State is better than the State? It makes no sense.

The above won’t make much sense unless you follow the debate. I quote this because of something Leoni says. Part of it should be a warning to those who believe in any kind of paternalism. From the chapter “‘Freedom’ and ‘Constraint'”-

“Freedom,” by the way, is a word with favorable connotations. Perhaps it may be useful to add that the word “freedom” sounds good because people use it to point to their positive attitude toward what they call “being free.” As Maurice Cranston has observed in his essay on Freedom (London, 1953) quoted above, people never use expressions such as “I am free” to mean that they are without something they consider to be good for them. None says, at least in speaking of day-to-day affairs, “I am free from money” or “I am free from good health.” Other words are used to express the attitude of people toward the absence of good things: they say that they lack something; and this applies, so far as I know, to all the European languages at present as well as in the past. In other words, to be “free” from something means “to be without something that is not good for us,” while, on the other hand, to lack something means to be without something that is good.

Of course, freedom has little meaning when it is complemented only by the expression “from something,” and we expect people to tell us also what it is that they are free to do. But the presence of a negative implication in the word “freedom” and in certain related words like “free” seems unquestionable. This negative implication is also present in derivative words connected with the term “liberty,” which is simply the Latin counterpart of “freedom” and not a word with a different meaning. For instance, “liberal” is a word that designates both in Europe and in America a negative attitude toward “constraint,” regardless of the nature of the “constraint” itself, which in its turn is conceived of very differently by American and by European “liberals.”

Thus, “freedom” and “constraint” in ordinary language are antithetical terms. Of course, one can like “constraint” or some kind of “constraint,” like the Russian army officers of whom Tolstoy said that they liked military life because it turned out to be a sort of “commanded idleness.” Many more people in the world like “constraint” than we probably imagine. Aristotle made a penetrating remark when he said at the beginning of his treatise on politics that people are divided into two broad categories, those who were born to rule and those who were born to obey rulers. But even if one likes “constraint,” it would be an abuse of words to say that “constraint” is freedom. Nevertheless, the idea that “constraint” is something very closely connected with freedom is at least as old as the history of political theories in the Western world.

I think that the main reason for this is that no one can be said to be “free from” other people if the latter are “free” to constrain him in some way. In other words, everyone is “free” if he can constrain in some way other people to refrain from constraining him in some respect. In this sense, “freedom” and “constraint” are inevitably linked, and this is probably too often forgotten when people speak of “freedom.” But “freedom” itself in ordinary language is never constraint, and the constraint that is linked inevitably with freedom is only a negative constraint; that is, a constraint imposed solely in order to make other people renounce constraining in their turn. All this is not merely a play on words. It is a very abridged description of the meaning of words in the ordinary language of political societies whenever individuals have any power whatever to be respected or, as one might say, whenever they have any power of a negative kind entitling them to be called “free.”

In this sense, we can say that the “free market” also inevitably implies the idea of a “constraint” in that all the members of a market society have the power to exercise restraint against people like robbers or thieves. There is no such thing as a “free market” with some constraining power superadded. A free market is rooted in a situation in which those engaged in market transactions have some power to constrain the enemies of a free market. This point probably is not emphasized sufficiently by those authors who, in focusing their attention on the “free market,” end by treating it as the very antithesis of governmental constraint.

Thus, for instance, Professor Mises, an author whom I admire greatly for his adamant defense of the “free market” on the basis of lucid and compelling reasoning and a superb mastery of all the issues involved, says that “liberty and freedom are terms employed for the description of the social conditions of the individual members of a market society in which the power of the indispensable hegemonic bond, the state, is curbed lest the operation of the market be endangered.” We notice here that he has qualified as “indispensable” the hegemonic bond of the state, but he means by liberty, as he also says, “restraint imposed upon the exercise of the police power” without adding exactly, as I would consider it reasonable to add from the point of view of a free-trader, that liberty means also restraint imposed on the exercise of the power of anyone else to interfere with the free market. As soon as we admit this meaning of liberty, the hegemonic bond of the state is not only something to be curbed, but also, and I would say first of all, something we make use of to curb other people’s actions.

Note, in the last two paragraphs, the difference between Leoni’s and Mises’ views of the “free market.” I believe that Mises implicitly states what Leoni is explicit about. It is a “given” that normal people have the right to “constrain” people like thieves, robbers and fraudsters, people whom Leoni later refers to as those indulging in “‘misproductive’ work—i.e., work that is useful for the worker, but not for those for whom, or against whom, he works.” I am with Mises here. The free market must be treated as the very “antithesis of governmental constraint.”

There are lots of people who do not like the conclusions of natural rights-based ethics and politics. They try to “disprove” it. Like Mr. LaFollette. He writes

The problem with libertarianism can be seen once we recognize the limitations that negative rights (libertarian constraints) themselves place on individual liberty. Suppose, for example, that I am the biggest and strongest guy on the block. My size is a natural asset, a physical trait I inherited and then developed. But can I use my strength and size any way I please? No! At least not morally. Though I am physically capable of pummeling the peasants, pillaging property, and ravishing women, I am not morally justified in doing so. My freedom is restricted without my consent. I didn’t make a contract with the property owners or the women; I didn’t promise not to rap, rob, or rape. Just the same, morally I cannot perform these actions and others can justifiably prohibit me from performing them.

Consequently, everyone’s life is not, given the presence of negative general rights and negative general duties, free from the interference of others. The “mere” presence of others imposes duties on each of us, it limits everyone’s freedom. In fact, these restrictions are frequently extensive. For example, in the previously described case I could have all of the goods I wanted; I could take what I wanted, when I wanted. To say that such actions are morally or legally impermissible significantly limits my freedom, and my “happiness,” without my consent. Of course I am not saying these restrictions are bad. Obviously they aren’t. But it does show that the libertarian fails to achieve his major objective, namely, to insure that an individual’s freedom cannot be limited without his consent. The libertarian’s own moral constraints limit each person’s freedom without consent.

This is even more vividly seen when we look at an actual historical occurrence. In the nineteenth century American slaveholders were finally legally coerced into doing what they were already morally required to do: free their slaves. In many cases this led to the slave owners’ financial and social ruin: they lost their farms, their money, and their power. Of course they didn’t agree to their personal ruin; they didn’t agree to this restriction on their freedom. Morally they didn’t have to consent; it was a remedy long overdue. Even the libertarian would agree. The slave holders’ freedom was justifiably restricted by the presence of other people; the fact that there were other persons limited their acceptable alter natives. But that is exactly what the libertarian denies. Freedom, he claims, cannot be justifiably restricted without consent. In short, the difficulty in this: the libertarian talks as if there can be no legitimate non-consensual limitations on freedom, yet his very theory involves just such limitations. Not only does this appear to be blatantly inconsistent, but even if he could avoid this inconsistency, there appears to be no principled way in which he can justify only his theory’s non-consensual limitations on freedom.

[…]

We have uncovered a very telling incoherence. We have taken the main libertarian weapon against welfare statism and turned it on itself. The once so-sharp sword is seen to have two sides. Instead of menacing the enemy, the sword only frustrates its wielder. As everyone knows, two edged swords cut both ways. The libertarian is unable to support his conception of the minimal state. At least some redistribution of tax monies is justified.

In other words, under “negative liberty,” I don’t have the moral right to restrict others’ physical freedom (freedom from interference – harm) without their consent. Therefore “negative liberty” restricts my physical freedom (freedom to interfere – harm). Therefore “negative liberty” is disproved. This is what Leoni talks about in the above chapter. People fail to understand the relationship between “freedom” and “constraint.” The words freedom and constraint are not mutually exclusive. “Freedom” is defined in terms of “constraint.” The freedom to restrict someone else’s freedom is a contradiction in terms. Its like dividing both sides of a mathematical equation by zero. One ends up with gibberish.

Leoni writes about such kind of confusion-

[T]he very fact that constraint is in some way inevitably linked with “freedom” in all political societies gave rise to or at least favored the idea that “increasing freedom” could be somehow compatible in those societies with “increasing constraint.” This idea was, in its turn, connected with a confusion about the meaning of the terms “constraint” and “freedom” which is chiefly due, not to propaganda, but to the uncertainties that can arise about the meaning of these words in ordinary usage.

Professor Mises says that “freedom” is a human concept. We must add that it is human in so far as some preference on the part of men is always implied when we use that term in ordinary language. But this does not mean that a man can be said to be “free” only from the power of other men. A man also can be said to be “free” from a disease, from fear, from want, as these phrases are employed in ordinary language. This has encouraged some people to consider “freedom from other men’s constraint” on a par with, say, “freedom from want,” without observing that the latter kind of “freedom” may have nothing to do with the former. An explorer may be starving in the desert where he wanted to go alone without being constrained by anybody else. Now, he is not “free from hunger,” but he is, as he was before, completely “free from coercion or constraint” on the part of other people.

[…]

You do not “constrain” someone if you merely refrain from doing on his behalf something you have not agreed to do.

Also, note the parasitic nature of the argument – the freedom to kill, pillage etc. When we build a political philosophy on top of ethics, we are not indulging in bootstrapping. Politics isn’t divorced from ethics. Crusoe, alone on his island, can try to survive on the basis of such an ethic, but he can’t succeed. And its this feature that is carried forward in politics when Friday enters the picture. All this reminds me of a poignant passage from The Fountainhead

Once, in Wynand’s office, [Alvah Scarret] ventured to say:

“Gail, why don’t you negotiate? Why don’t you meet with them at least?”

“Shut up.”

“But, Gail, there might be a bit of truth on their side, too. They’re newspapermen. You know what they say, the freedom of the press . . .”

Then he saw the fit of fury he had expected for days and had thought safely sidetracked—the blue irises vanishing in a white smear, the blind, luminous eyeballs in a face that was all cavities, the trembling hands. But in a moment, he saw what he had never witnessed before: he saw Wynand break the fit, without sound, without relief. He saw the sweat of the effort on the hollow temples, and the fists on the edge of the desk.

“Alvah . . . if I had not sat on the stairs of the Gazette for a week . . . where would be the press for them to be free on?”

What follows is David King’s thoughts on freedom. “There is no such thing as freedom,” he says. Read it. Carefully.

There are three aspects to the idea of freedom: Physical, Psychological and Social.

In physical terms, freedom–or the lack of it–refers to the constraints imposed by the laws of nature. For example: you are not free to flap your arms and fly through the sky. You are not free to breathe water, like a fish. This is not the sort of freedom I am going to talk about.

In psychological terms freedom refers to the constraints you may impose upon yourself because of your state of mind. For example: you may not be free to get a broken tooth fixed, simply because you dread going to a dentist. You may not be free to learn how to ski, simply because of your lack of self-confidence. This too, is not the sort of freedom I will deal with in this essay.

It is freedom in the context of interacting with other people that is my concern. I will try to make a precise statement of just what that kind of freedom is.

Consider these pairs of terms:

Light – Darkness
Sound – Silence
Heat – Cold
Slavery – Freedom

Let us examine the first of these pairs, light – darkness. Light is defined as electromagnetic radiation in a certain range of wavelengths. As such, we can easily understand and deal with the characteristics of light. We can measure stronger or weaker lights in terms of candlepower or lumens. We can identify different wavelengths of light and call them colors. We can produce light by means of light bulbs and torches. Light is a real existing thing. What then is darkness? Darkness is not a real existing thing. It is merely a term of convenience which we apply to a situation from which light is absent. You will observe that there are no units of measurement for darkness. There are not greater or lesser darknesses (what is greater or lesser in this situation is the amount of light present) nor are there different characteristics of darkness–there is only one kind of darkness and that is the complete absence of light. So long as there is any light at all present we cannot truthfully say that we have darkness but rather that we have a greater or lesser degree of illumination.

Now consider the second pair, sound – silence. Sound is defined as a certain sort of motion of the air. Sound comes in various degrees, namely louder and softer. It comes also in various types, namely of a higher or lower pitch. As with light, you can see (or rather, hear) that sound is a real existing thing. Silence, however, is not. It is merely a term of convenience which we apply to a situation from which sound is absent. And as with darkness, there is only one degree of silence, the complete absence of sound. So long as there is any sound present at all we cannot speak of silence but rather of more or less noise.

Now on to the third pair, heat – cold. Heat is a manifestation of the molecular energy in an object. We can make a measurement of heat by means of a thermometer and we can see (or feel) that heat comes in various degrees of temperature, and thereby we know that this energy content is a real existing thing. So what is cold? Cold is the absence of heat. Cold is not a real thing. You might now be tempted to say: “Humbug! I know cold is real. My refrigerator makes my milk cold. I know this because I drink the cold milk.” Well, your refrigerator does not put cold into the milk. What it does is to take heat out of the milk. The refrigerator is a “heat pump” which pumps the heat from the inside of the box to the outside. (You can feel the heat coming off of the radiator on the back of the refrigerator.) You will note that we have thermometers for measuring heat, but there is no device for measuring cold. You will note that heat is measured in degrees (fahrenheit or centigrade), but there is no unit of measurement which indicates coldness. Strictly speaking, there is only one degree of cold, and that is absolute zero, the point at which all the heat has been removed from an object. So you can see that it is not cold that is a real existing thing, but rather heat.

Now consider the fourth pair of terms, slavery – freedom. Keeping in mind the previous three distinctions I made, let us see what, in this context, is the real existing thing and what is merely a term used to indicate an absence. Consider that we can take a man and by the application of physical force we can compel him to submit to our will. We can also compel him to submit by threatening him with force. We can bind a man in chains; we can lock him in a cage; we can threaten to deprive him of his property, his liberty, or even his life. And thus we can force him to submit to our will. Surely you recognize this as the imposition of slavery. And you can see that slavery is a real existing state of affairs. There are degrees of slavery: some men are completely enslaved, such as negroes in the pre-civil-war South. Other men are more or less enslaved according to the amount of force or threat of force to which they are subjected. So, if slavery is a real existing thing, what then is freedom? Is it not a real thing? After all, men have been willing to fight for it and to die for it all through history. Do they fight and even die for a nothing? For a notion that does not exist in reality? Is it not true that a man will go out and fight against tyranny, and when he has destroyed the tyrant does he not smile and say, “Now I have freedom!”? Doesn’t he have something that he did not have before? Namely freedom? Well, let us see what he does have and what he does not have. Before, when he was living under the tyranny, there was imposed upon him a force or a threat of force, to which he was compelled to submit. Then, when he fought, his objective was to destroy the tyrant. When he fought he did not take some thing away from the tyrant; rather, he destroyed the thing that the tyrant had used against him. The thing destroyed was the tyrant’s ability to compel. And then, after his success, when he said, “Now I have freedom!” did he possess any real thing as a result of his fight? Obviously not. No real existing thing has come into his possession which he did not previously possess. What has changed is that he is now living in a different social situation. Whereas before there was force now there is not. And this situation is what he calls freedom. Freedom is the absence of slavery. Freedom is not a real existing thing, it is rather the term we apply to a situation from which compulsion is absent.

I want now to make the most critically important point of my essay. I have maintained that darkness, silence, cold and freedom are not real existing things. What I have said is true. But what I have said, if not properly understood, can be fatally misleading. Consider one more example of the same nature as those I have illustrated: You can pluck a rock out of the ground, leaving a hole, and you can say that it is the rock that is the real thing and that the hole is merely the absence of the rock, and therefore not real. That is the frame of reference I have used throughout this essay, and it is correct, as far as it goes. But it is certainly not complete. Just as you might stumble over the rock and break your leg, so you might fall into the hole and break your leg. Your relationship to the hole, you see, is a rather important situation. Even though we may consider the hole as being merely the absence of the rock, it certainly does have relevance to your life. And although I have said that darkness, silence, cold and freedom are merely absences, I do not mean to deny their relevance to life. The absence of light which is a blind man’s darkness is crucially important. The absence of sound which is a deaf man’s silence is very relevant. The absence of heat which is a dead man’s cold is undeniably significant. And the absence of slavery which means the freedom of Man is the basis of all human progress.

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Comments

  • K. M.  On July 4, 2009 at 2:22 am

    What is a free market?
    What is a State? Think about it. It is not easy to define – like all collectives. Do you really want to define freedom in terms of the state? Look at the contrast King writes about. Slavery vs freedom. Slavery is much easier to define and it is not a collective.

    I don’t have a satisfactory answer to “What is a State?” yet. I will write about it when I develop one.

    The latter don’t lay any claim to morality when they engage in fraud, theft, murder, confinement etc. It is the State which does that.
    What does a claim to morality have to do with what a free market is?

    • Aristotle The Geek  On July 4, 2009 at 1:18 pm

      # “What is a State?”
      A State, I would define it as an entity that claims to have a “legitimate” monopoly over the use of force over a particular area. The legitimacy of the use of force itself – the circumstances under which it is used – is a different question. For example, even if you grant the legitimacy of the existence of the Burmese State, you cannot grant legitimacy to the brutalization of pro-democracy protesters.

      # Do you really want to define freedom in terms of the state?
      I don’t define freedom per se in terms of the state. I completely agree with Bruno Leoni, and hence “negative liberty.” Liberty is the absence of constraint – interference. But I do define the “free market” that way, in terms of the state. The problem with the state is, like I said, it claims to have a legitimate monopoly over certain actions. The reason I refer to morality here is because of the question of legitimacy, of right-ness and wrong-ness. Thieves, robbers etc don’t claim that they are right when they act. The state does. That is why freedom from “misproductive” people is a “given” when we refer to “interference.”

      The “free” in “free market” is not descriptive in nature-it does not merely describe a state of affairs-it is normative. Without some one claiming they have a legitimate right to interfere in the market, like many States do, the adjective “free” would be redundant. Then we would be left with just “market” (again, the “given” is presumed here). Like we use man, and not “free man.” It is because of the attempt to somehow allocate a role to the State in the market, a role more than “protection” from “misproductive” elements, that the term “free market” exists. I don’t think it would otherwise. Without the State, robbers, thieves and murderers would still exist. And so would people who would fight them. But we wouldn’t need to refer to the “market” as “free market.”

      The difference is because of the concept of “legitimate interference.”

      • K. M.  On July 5, 2009 at 1:16 pm

        claims to have a “legitimate” monopoly
        That is the problem. Any group may claim that it has a legitimate monopoly and that anyone else making the same claim is illegitimate. That, in itself does not make that group a State, does it? There are plenty of such groups to be found in history or even today.
        Consider Rand’s (very similar) definition
        A government is an institution that holds the exclusive power to enforce certain rules of social conduct in a given geographical area.
        She does not say ‘claims to hold’, just ‘holds’. To use that definition, one has to judge which claimant’s claims are backed up by ability.

        I would say (making explicit what is implicit in Rand’s definition):
        A state is that entity whose claim to legitimacy over the monopoly of force in a given area is generally accepted.
        Messy!

        The “free” in “free market” is not descriptive in nature-it does not merely describe a state of affairs-it is normative.

        It is because of the attempt to somehow allocate a role to the State in the market, a role more than “protection” from “misproductive” elements, that the term “free market” exists.

        Quite so. But in view of our debate, the normative component is not in question. We both agree that the state should not have any role more than protection from aggressors. It is the role of (exclusive) protection that is in question. Let us then understand the “free” in free market to be merely descriptive. Let it refer to actual freedom. Let the free market mean a market as free of aggression as it is possible to achieve, given the fact that robbers, thieves and murderers will always exist (even among the agents of the state where they would be far more dangerous).

        The goal of a proper political system is to protect (individual) rights. This is the same as establishing a free market – keeping individuals actually free of aggression to the extent possible.

        Note the “to the extent possible”. That indicates that the precise nature of a political system will be a “scientific” question. The moral position has already been established in the recognition of rights. This is as far as morality can take us (we still have metaphysics (human nature) and epistemology to guide us). Beyond this point we have to get into collectives. Morality does not apply to collectives, only to individuals. The anarchist conception of a free market is a market free from all interference of a state including any monopoly over force. It is a moral challenge to the state. But as I indicated the state is a messy collective. Challenging its moral legitimacy is a mistake.

        Further, once you take an anarchist view of what a free market is, you have already assumed the ideal political system – one in which there is no state. The anarchist conception of a free market begs the question – and in an ugly way, by making use of a messy concept like the state.

        Modern democracy is as close to anarchism as I hope we will ever get. I will clarify what I mean in a separate post though. This is getting much longer than I intended.

        • Aristotle The Geek  On July 6, 2009 at 2:20 am

          The question is, are you referring to the state in the abstract (idea) or the concrete (regime)?

          My definition is an abstract one. The idea of North Korea, and Kim Jong Il’s regime are not one and the same. The State of NK is a legitimate entity. North Koreans would generally accept it. But Kim’s regime is not generally accepted. The only reason he is in power is because he can “hold” it.

          Based on how things work in practice, I would say that only “legitimacy” (basically territory) and “hold” matter. In theory, it would also require general acceptance. Think this works?

          # “The anarchist conception of a free market begs the question – and in an ugly way, by making use of a messy concept like the state.”
          About the free market and anarchy, I don’t think it is a case of question begging. What I said was, etymologically, “free market” makes sense only because of political philosophies that see a role for the State in the market. Otherwise, we are simply left with a market.

          We always start with anarchy, and a market. The market can be a “market” even after the State comes into being. But when the State interferes in the market, we have to create the concept of a “free market” just so that we can differentiate between the two. Otherwise the term is meaningless normatively. Descriptively, I don’t think there is much to gain by using the term when market would do just fine.

          # “It is a moral challenge to the state. But as I indicated the state is a messy collective. Challenging its moral legitimacy is a mistake.”
          # “Further, once you take an anarchist view of what a free market is, you have already assumed the ideal political system – one in which there is no state.”
          I don’t think I assume an ideal political system when I define the market the way I do. Anarchy precedes the State, always. The question that needs to be answered is why is a State better than anarchy? And here, we make a value judgment. If it is not a moral judgment, what kind of judgment is it? I recollect this post of yours where you talk of “scientific” judgments. The way I see it, unlike moral judgments – right or wrong, the judgments you refer to, including state vs. anarchy, are utilitarian ones – judgments based on usefulness – benefit (Note that I am not raising this to the level of ethics – utilitarian ethics). With utilitarian judgments, I can always choose “otherwise” – the choice is subjective. Not the case with moral judgments.

          A moral position can be challenged on the basis of morality; a utilitarian position on the basis proving the utility of other systems (this challenge can always be ignored because, as I said, the position is subjective in nature).

          The principled minarchist’s position is that the State is a necessity—it cannot be otherwise. The question is why?

  • K. M.  On July 7, 2009 at 1:44 am

    Hmmm… We haven’t made much headway in this debate yet. I would like to stop, frame our agreements and disagreements and then resume. But I am not sure of them all yet. So let’s continue for the moment.

    First, I am assuming a culture of egoism, responsibility and respect for liberty. Without those aspects, politics is pretty much irrelevant and anarchy is certainly impossible.

    What I said was, etymologically, “free market” makes sense only because …
    Right, that is what ‘free market’ means in today’s context. But given a proper culture, “legitimate interference” political theories would not be prevalent. Free would then be a merely descriptive term – free from aggression. A market with defense agencies that do not cooperate with each other would be less free than one where the agencies do cooperate.

    We always start with anarchy, and a market.
    In what sense do we start with anarchy and a market? Certainly not historically. If we are able to establish a culture that might sustain an anarchy, the establishing will be done in the presence of a state. Perhaps you mean it logically. Imagine one man on an island. Then another joins him… … … Then they form a state etc. That is a good formulation for thinking of concepts such as property rights and homesteading. But does it give any insights about a state? It tells us that there would be no such thing as a state in a group of 10 men or 20 men. But by the time one reaches these numbers, the formulation loses its value.

    The question is, are you referring to the state in the abstract (idea) or the concrete (regime)?
    Since individuals are the only moral agents, one cannot talk of the morality of a collective in the abstract. One can talk of the morality of individual actions or of the morality of particular principles (by implying that a particular principle when applied to a given situation would always be good or bad, regardless of the individuals involved). If a state is bound (theoretically) by the non aggression principle encoded into law in a reasonable way, there can be no moral argument against it.

    The principled minarchist’s position is that the State is a necessity—it cannot be otherwise. The question is why?
    Because there is no alternative to it. From the post I wrote yesterday,
    Anarcho-capitalists such as Rothbard (based on some quotes by ATG) write of competing (while also cooperating with each other) private defence agencies. If these competing-yet-cooperating private agencies bind themselves by fundamental principles and refuse to allow other private agencies that do not accept those principles, then they together form an entity which is remarkably similar to a state. If they do not bind themselves by any fundamental principles but still cooperate among themselves, then they are remarkably similar to a modern democracy – a disparate set of power wielders that manages to avoid open warfare.

    • Aristotle The Geek  On July 8, 2009 at 4:07 am

      # “I would like to stop, frame our agreements and disagreements and then resume.”
      I think much of our debate is taking place over peripheral issues, like the definition of the free market and the state. Let me see if I can state the essentials and then proceed.

      Under natural rights theory (you could derive it from egoism, or Rothbard’s self-ownership axiom), man has certain rights. And such rights exist regardless of the nature of the enforcer, and regardless of people’s knowledge of such rights. A cannibal, or a government, could claim that they do not recognize the right to life, or property, but their opinions, or their actions have no bearing on the fact that such rights do exist. They are criminals if they engage in a violation. Further, law is not positivist in nature. It does not emerge from the edicts of a particular entity, be it a legislature, or a king, or a tribal chieftain. Natural law is objective in nature. Given a problem, there is always one right answer and a wrong one – a “right,” and its violation. Unlike what many might claim, the non-aggression principle is not a primary, it is the necessary conclusion that one arrives at through the theory of natural rights.

      I am not sure how nuisances – sound, pollution etc – can be dealt with under this theory, but the problem of nuisance is common to both anarcho-capitalism as well as limited government. So I will let it slide for the time being.

      Once this is agreed to, the anarcho-capitalism vs. limited government debate is technical one — one related to the how‘s and who‘s of enforcement — though not a simple one.

      This (technical, rather than moral) is why most minarchists, including Mises, make utilitarian arguments based on chaos. But Rand, and those who agree with her, also add morality to the mix, first by casting aspersions on those who don’t agree with the limited government thesis, with statements like

      The real target of the anarchist’s attack is objectivity. Objectivity requires one to prove that one is acting within one’s rights; they do not want to be held accountable to anyone for anything—not even regarding their use of physical force. They damn governmental retaliation because it is objective; they demand to be “free” to use force on whim.

      In the philosophical battle for a free society, the one crucial connection to be upheld is that between capitalism and reason. The religious conservatives are seeking to tie capitalism to mysticism; the “libertarians” are tying capitalism to the whim-worshipping subjectivism and chaos of anarchy.

      To cooperate with either group is to betray capitalism, reason, and one’s own future.

      or your own – “The desire for anarchism is not a desire for freedom from aggression – it is a desire for freedom from responsibility,” and second, by declaring that a “proper government” is morally justified so long as it bars the use of physical force-

      The retaliatory use of force requires objective rules of evidence to establish that a crime has been committed and to prove who committed it, as well as objective rules to define punishments and enforcement procedures. Men who attempt to prosecute crimes, without such rules, are a lynch mob. If a society left the retaliatory use of force in the hands of individual citizens, it would degenerate into mob rule, lynch law and an endless series of bloody private feuds or vendettas.

      If physical force is to be barred from social relationships, men need an institution charged with the task of protecting their rights under an objective code of rules.

      This is the task of a government—of a proper government—its basic task, its only moral justification and the reason why men do need a government.

      A government is the means of placing the retaliatory use of physical force under objective controli.e., under objectively defined laws.

      At the outset, the chaos argument is a strawman, if one is talking about rational people that is. For example, Mises’ case of every person being at the mercy of his strongest neighbor, or Rand’s case of defense agencies fighting on the streets, or Binswanger’s-

      The attempt to invoke individual rights to justify “competing” with the government collapses at the first attempt to concretize what it would mean in reality. Picture a band of strangers marching down Main Street, submachine guns at the ready. When confronted by the police, the leader of the band announces: “Me and the boys are only here to see that justice is done, so you have no right to interfere with us.” According to the “libertarian” anarchists, in such a confrontation the police are morally bound to withdraw, on pain of betraying the rights of self-defense and free trade.

      (the pertinent questions are – who owns Main Street, who hired the police and what do these strangers want). The existence of rogue gangs is just as feasible as the existence of rogue states, rogue cops and rogue armies. What seems to be forgotten in all this is – there is something called Society, which is not equal to the State.

      A “state of nature” exists on Crusoe’s island inhabited by Crusoe and Friday. This is what I call plain anarchy, a society without entities claiming and holding a “legitimate” monopoly on force. And a market exists wherever people exchange goods voluntarily. This is Society at the basic level. And this won’t change regardless of the number of people living in such a Society. But societies need protection – humans are neither uniformly good, nor infallible. And thus Societies, whatever their size, institute governments to protect them. That’s how the government comes into being. The village chieftain and others whom villagers trust to keep them safe – on some Pacific Island – are the government. This is minarchy.

      Let’s consider the minarchist case, and since I haven’t read much of Mises, that would mean Rand’s case. I agree with nearly everything she says about force and relationships, except that the government is the only way to keep things safe, and the only objective way to do it.
      If a “proper government” based on the “consent of the governed” could ever come into existence, well, I don’t think there is a case for a complaint because people are voluntarily signing up to the contract which might specify laws, the tax to be paid etc etc etc. Those who don’t agree wth the government asserting a monopoly are free to fight it, but they might not succeed. Such a possibility also exists in anarcho-capitalism where a few people find their properties within an area dominated by people subscribing to a single protection agency, court etc.

      But minarchy surely isn’t the “only” way to run things objectively.

      Once you move beyond small groups/ societies of 5-10 people, one needs institutions. The problem is not the use of force, but justifying it. What happens if Crusoe steals Friday’s coconuts? Friday will retaliate. There are no moral issues here – Crusoe is wrong, Friday is right. The practical problems in Society lie in proving that Crusoe stole something, and hence deserved what he got. This is why objectivity is required. And objectivity is what defense agencies and courts competing with each other provide. Sure, Friday could go and bash Crusoe. But Society would be suspicious of such action. Courts offer a sanity check.

      Of course, all kinds of technical problems can be raised. What if defense agencies fight over their clients? What if they subscribe to different arbitration services? What if some one doesn’t accept the verdict of a court? What if some agencies turn predators? What if some courts become corrupt? But all these can be answered (and Rothbard has answered them all) as long as the following is kept in mind – we are talking about societies where most people would be rational. If we want to debate the fate of irrational societies, neither anarcho-capitalism nor “proper government” will be of much use. And the debate would serve no purpose.

      Let me answer some of the issues you raised here.

      # “And on occasions, it looks like just a decentralized state but a state nevertheless.”
      There are differences between a State and private arrangements that fulfill its role. States have sovereignity. They can go to war. They rule over a “territory.” They are ruled by a government “recognized” by everyone. The government could be that of a king, or of the people, or of a despot. Private arrangements do not equal this. The difference is the same as the one between a monopoly held by a private company, and that held by a state owned one, the most important one being the entry barrier. Microsoft cannot prevent another vendor from selling operating systems on the market, or offer it for free. But if a few people come together and create an offshore “state” just outside the US border, and allow people to do everything that the US government bans, they will find themselves under attack – overt or covert by the US government.

      # “If, for example all the “competing” defence agencies have the same arbiters and agree to follow the same laws and even cooperate with each other…”
      Why do competing companies come together to form consortiums? The Unicode consortium, for example? Standards help. Not all people are unreasonable. They recognize the need for a broad agreement. The presence of competing enforcement agencies does not mean they have to enforce different laws. They could. Even States do. But because it is a free market, a defense agency that subscribes to a law code which punishes people for speaking out their mind won’t find a market among liberal people. Maybe among conservatives. In such cases a fight could ensue. But unlike a monopoly government, such laws would not be “applicable” to all. People are free to defend themselves against cranks.

      An armed force is required to combat armed suspects. If some one accuses me of stealing his watch, our defense agencies won’t resort to a blood bath on the street. All non-violent aggression will be sorted out in courts. Its possible that different agencies will subscribe to different courts. But then, everyone is aware that one cannot go on appealing without no end in sight. The defense agencies, and courts will have arrangements in place which will provide for conflict resolution. If you want to purchase protection from agency A, the contract will specify the terms of the contract – what happens if you are accused by a customer of a different agency, what happens if you refuse the judgment of the court (the case might go to some “tie breaker” court and so on). If you refuse, you don’t get protection. You have to protect and defend yourself, and justify yourself. I cannot quote all of Rothbard here. He has tackled all such practical problems. The part where he quotes Bruno Leoni (Freedom and the Law) though-

      Finally, Professor Leoni was able to use his knowledge of the operations of ancient and common law to answer the vital question: In a libertarian society, “who will appoint the judges . . . to let them perform the task of defining the law?” His answer is: the people themselves, people who would go to the judges with the greatest reputation of expertise and wisdom in knowing and applying the basic common legal principles of the society:

      In fact, it is rather immaterial to establish in advance who will appoint the judges, for, in a sense, everybody could do so, as happens to a certain extent when people resort to private arbiters to settle their own quarrels. . . . For the appointment of judges is not such a special problem as would be, for example, that of “appointing” physicists or doctors or other kinds of learned and experienced people. The emergence of good professional people in any society is only apparently due to official appointments, if any. It is, in fact, based on a widespread consent on the part of clients, colleagues, and the public at large—a consent without which no appointment is really effective. Of course, people can be wrong about the true value chosen as being worthy, but these difficulties in their choice are inescapable in any kind of choice.

      Of course, in the future libertarian society, the basic legal code would not rely on blind custom, much of which could well be antilibertarian. The code would have to be established on the basis of acknowledged libertarian principle, of nonaggression against the person or property of others; in short, on the basis of reason rather than on mere tradition, however sound its general outlines. Since we have a body of common law principles to draw on, however, the task of reason in correcting and amending the common law would be far easier than trying to construct a body of systematic legal principles de novo out of the thin air.

      # “Now, consider an example. A and B voluntarily choose a private arbitrator X to settle a dispute where A claims that B owes him something. The arbitrator rules in favor of A. If B accepts the ruling, end of story. What if B rejects it? Is this aggression?”
      Depends on B’s reasons. If X was bribed by A, and B can prove it, then it isn’t. Otherwise it is. See, there are only two real options here. Either A and B already have contracts with various agencies beforehand wherein they agree to how the law will be enforced (here, any party who breaks the contract would have aggressed), or one or both of them do not have any such contracts and hence voluntarily visit an arbitrator. And have to abide by the ruling, or risk punishment for aggression.

      # “Most importantly, consider a C who is a neighbour to A and B and never agreed to have X as an arbitrator or Y as a defence agency. Is A’s use of force near C’s property an aggression against C (in the form of a threat to his property)?”
      Use of force in what manner? If C considers something to be an aggression, and can prove it in court, he can claim compensation. If he doesn’t want to spend money on protection or arbitration, he doesn’t have any alternative other than defnd himself, does he? If his “defense” is no defense, then he is now in the wrong.

      # “Group P agrees that none of its members may have more that 2 firearms. Group Q places has a much bigger limit. Some of the members of group P suspect that Q is planning a coup and decide to investigate. One of its members however is convinced that Q has no such intentions and refuses to cooperate. Shouldn’t P treat him as a conspirator and aggressor?”
      I don’t udnerstand this. I assume the groups are defense agencies, and members are employees of such agencies. In that case, it would be a breach of contract, nothing more. Same would be the case if the members were customers. And the coup, what coup?

      # “If everyone agrees about where the line is to be drawn, there is no difference between ‘private arrangements’ and a government.”
      # “To sum up, it looks like even Rothbard accepts that there needs to be a common ‘Law’ – I am not sure I understand why the L needs to be capitalized. If the private competing defense agencies agree to cooperate, they are not really competing and there is no essential difference between a state and this diluted brand of anarchism. If they don’t cooperate, it can only mean chaos.”
      Everyone can agree with something, and still compete on service delivery. I wouldn’t want to live near some one who doesn’t believe murder is a crime. Agreements are good as long as competition exists. If this is how government is to be defined, you are widening the definition beyond monopoly over force. Further, the important difference between the State and competing agencies is that the State has no incentive to provide a good service. The private sector does – their livelihood depends on it.

      Anarcho-capitalism is not about “might is right,” or “whatever you decide is right.” The law still exists. Judges will still “discover” law. Agencies who want to compete might want to pay heed to the pronouncements of courts, and courts might want to take note of precedents if they are concerned with rights. All the questions that you raise, about aggression, have to be decided by the courts whether in minarchy, or anarcho-capitalism.

      # “Existentially, a state is merely a dominant group. If it is not founded on wrong philosophical principles, I don’t see how you can make a moral claim that no group should become dominant.”
      The claim is against the State that exists based on the premise that it has a monopoly over the use of force, and will target anyone who challenges it regardless of the merit of the challenge. This is how thugs and dictators behave. And most modern States. This is immoral.

      ———–

      Some additional reading material-
      * Roy Childs letter to Rand.
      * Prof. Kroy argues that the Rand vs. Rothbard debate must be solved at a metaphysical level. (He gets some things wrong, including giving an example where a promise to sell one self into slavery would be a binding one as per Rand. Childs responds.)
      * Machan on anarchy and government. (He says Rand didn’t advocate a state, only a government. Some people differentiate between the two).

      • K. M.  On July 8, 2009 at 8:36 pm

        Thanks for your detailed response. I also read Kroy’s arguement, Childs’ response and the initial part of Machan’s paper. Childs’ letter I had read earlier and did not reread.

        I was initially of the opinion that the difference in our positions was merely a procedural difference. Primarily because I didn’t (and still don’t) see any fundamental difference between cooperating private agencies and a state. To take just one example, if there is a court of final appeal of some kind (as you wrote), there is exactly one legal system and exactly one police force. Once the court of final appeal makes its decision, if all the private agencies are going to enforce it regardless of the wishes of the individuals involved, the private agencies and law courts together constitute a state.

        After reading Kroy, it looks like there might be more fundamental differences between our positions. We already have a different position on the nature of values (which Kroy also mentioned). Kroy also wrote about a difference in the scope or extent of free will. I agree with the positions that Kroy ascribes to Randists on these two issues. While I will have to do some more thinking to understand how exactly these differences are relevant to anarchism, I suggest that we resolve them first before continuing this debate.

        Do you agree to the position on free will that Kroy ascribes to Rothbard (I have read no Rothbard – apart from the many quotes on your blog) – namely that free will includes the ability to make decisions independently of one’s values, knowledge and state of mind? If so, I will write a post on that and we can debate it.

        If not, I will resume the posts on egoism that I intended to write after reading Heumer but have not got around to.

        Politics is highly derivative and so it would be futile to debate it without an agreement on fundamentals in metaphysics and ethics.

        • Aristotle The Geek  On July 8, 2009 at 11:55 pm

          #“I was initially of the opinion that the difference in our positions was merely a procedural difference.”
          Kroy notes-

          For Rand, the contract which makes individual rights defensible is a contract with a government. Hence, for her, libertarianism is impossible without a government: it presupposes a government, albeit a minimal government. For Rothbard, individual rights are independent of any contract, they are natural, and the fundamental defense of them is by the individual himself. The marketing of defense services through defense agencies is not in any way a necessary ingredient in the implementation of rights. Rather, it is a special case of the principle of specialization of services on the market, and has nothing to do with the moral validity of individual rights, or with their implementability.

          I don’t think Kroy states it correctly. Even in Rand’s case rights exist [edit: and are defensible regardless of the existence of government. Its only objectivity” which necessitates government, and thus surrender of the right to self-defense.] The difference is somewhere else. For Rothbard, verifiability or objectivity is secondary, rights are primary. For Rand, even if man has inviolable rights, if anyone violates those rights, the man whose rights are being violated cannot retaliate unless he objectively proves his case, which can only be done under a proper government. Therefore objectivity is primary, truth is secondary.

          The Randian (political) case primarily rests on the need to avoid chaos – her answer if the number of people in society were 2 would be different than if the number would be 200. The Rothbardian case primarily rests on man’s absolute right to his mind, body and property. The size of society makes no difference to him.

          # “I didn’t (and still don’t) see any fundamental difference…together constitute a state.”
          There would be no single court of appeal. And the only private agencies involved would be A’s and B’s. I will give a very simple example. A has some problem with B, and calls his Agency A to fix it. B calls his own Agency B. The agencies talk among themselves and are unable to resolve the situation. Unfortunately both subscribe to different courts – Court A and Court B. As Rothbard points out, the case is generally tried because the plaintiff has a problem. So following the convention, the case is tried in Court A. If Court A declares B to be guilty, B could go to his own Court B and say he’s not satisfied with the verdict. If even Court B declares him to be guilty, the agencies will have to act against B. If Court B reaches another verdict, both courts will agree to be bound by some another court (not necessarily one court which all other courts have to obey) which they both have faith in. And this verdict would probably be the final one.

          Of course B could refuse to be bound by any verdict, or refuse to hire any agency, or court and so on. But then no one would do business with B if he is so antisocial and if he cannot be relied upon to stick to a contract. Further, if B doesn’t subscribe to any services, A would still be doing that, and in that case Court A’s decision would be final. B can either agree with it, or fight Agency A on the streets. There is no other alternative.

          A simple question. What happens if an American, after robbing a few banks runs of to Brazil, or Mexico or some other country with which the US doesn’t have an extradition treaty? Also what happens when a criminal from UK is accused of committing a crime in the US? Of course the US and UK are separate countries. But surely their armies don’t face off in such cases. Generally the suspect is extradited. Surely the US and UK are not part of a single World Government or a singe State. That’s how reasonable agencies would operate. Cooperation does not mean there is a single police force or a single state.

          Further, unlike a State, the agencies would be funded by revenues from customers. They cannot work like States do. Or mobs for that matter. If you are willing to extend the definition of State to include such cooperation, I don’t mind it calling it a State. The label is irrelevant. Conceptually there is a world of a difference.

          On values, let me think about it a bit [I will say this though – his ethics seems to be “negative” or social in nature. Rand’s includes the “positive” or personal parts as well). You can read this article by Rothbard though where he explains his views on free will.

          • K. M.  On July 10, 2009 at 1:53 am

            Yes, I too think Kroy misrepresents Rand there. I agree with your characterization – objectivity is primary – if by objectivity you mean verifiability. Verifiability is primary because rights only exist in a social context. In a social context, men can rationally establish only those facts that are verifiable.

            Regarding your arguements about the difference between state and anarchy:
            I am still not convinced that there is a world of difference.
            From the “private law enforcement” article:

            “In such a society there might be many courts and even many legal systems. Each pair of protection agencies agree in advance on which court they will use in case of conflict. Thus the laws under which a particular case is decided are determined implicitly by advance agreement between the protection agencies whose customers are involved. In principle, there could be a different court and a different set of laws for every pair of protection agencies. In practice, many agencies would probably find it convenient to patronize the same courts, and many courts might find it convenient to adopt identical, or nearly identical, systems of law in order to simplify matters for their customers.
            Before labelling a society in which different people are under different laws chaotic and unjust, remember that in our society the law under which you are judged depends on the country, state, and even city in which you happen to be. Under the arrangements I am describing, it depends instead on your protective agency and the agency of the person you accuse of a crime or who accuses you of a crime.”

            The emphasized parts are why I see no fundamental difference between cooperating private agencies and one or more states. Even as of today, in an existential sense, there is no unique final court of appeal. A “criminal” can always run off to another country as you wrote. Perhaps he will be extradited. If there is sufficient support for him in the other country, perhaps he won’t. Yes, the armies won’t face off. Same is the case with your private agencies. That is exactly my point. Where is the fundamental difference between private agencies and one or more states?

          • K. M.  On July 10, 2009 at 2:00 am

            his ethics seems to be “negative” or social in nature.
            That is an immediate consequence of his position on free will – if Kroy does not misrepresent it.

            • Aristotle The Geek  On July 11, 2009 at 12:27 am

              I believe Kroy’s thesis is wrong. I haven’t found, yet, Rothbard claiming “free will” at various levels. He only says that “free will” is inalienable.

              So, slavery cannot be enforced. Someone who consents to it can snap out of it the moment he feels like it. Further, performance contracts cannot be enforced. Only damages can be claimed, if previously agreed to. Finally, promises are not enforceable. Under his title transfer theory of contract, only a contract where actual value has been transferred, or is agreed to be transferred, can be enforced. That’s what I think Kroy means about changing one’s mind.

              Further, when I wrote Rothbard’s ethic is social in nature, I meant that unlike Rand, he only concentrates on what society cannot do to someone. He defines everything “negatively.” Unlike Rand, he isn’t too interested in the development of an individual (he does tackle the subject briefly). Like I said somewhere, I consider Rand to be a moral philosopher. Rothbard, is a political philosopher.

              I will elaborate on all this later by providing specific quotes; there are a few more chapters that I have to read before I can be certain. Meanwhile, read this paper by Walter Block (replying to Machan) on why the gap between anarcho-capitalism and minarchy cannot be bridged.

        • Aristotle The Geek  On July 9, 2009 at 1:31 am

          On free will and values, I think I know Rothbard’s position – it is something similar to what I said – personal vs. social, and then moves on from there. But I would like to make an exact statement. And I can only do that after I reread the relevant parts of his books.

          I think you should continue with your posts on egoism. We can always continue this debate later on.

    • Aristotle The Geek  On July 8, 2009 at 1:08 pm

      An addendum. [You can quote my entire comment/s on your blog if you want to, if it makes things easier.]

      Rand talks about the importance of the philosophy of law, rules of evidence and the like. She is right. When it comes to disagreements, or crimes, its not enough for the truth to be on your side. Without justification, social life becomes impossible. Therefore wikipedia’s policy of verifiability, not truth makes eminent sense.

      About legitimacy, Rothbard’s theory should be noted. Its people who grant legitimacy to anything. As Mises says, socialism exists because a majority of people want it. And the entire altruist-collectivist morality exists for similar reasons. The same goes for statism, Rothbard says-

      There is another vital consideration that would make it almost impossible for an outlaw police force to commit anything like the banditry that modern governments practice. One of the crucial factors that permits governments to do the monstrous things they habitually do is the sense of legitimacy on the part of the stupefied public. The average citizen may not like—may even strongly object to—the policies and exactions of his government. But he has been imbued with the idea—carefully indoctrinated by centuries of governmental propaganda—that the government is his legitimate sovereign, and that it would be wicked or mad to refuse to obey its dictates. It is this sense of legitimacy that the State’s intellectuals have fostered over the ages, aided and abetted by all the trappings of legitimacy: flags, rituals, ceremonies, awards, constitutions, etc. A bandit gang—even if all the police forces conspired together into one vast gang—could never command such legitimacy. The public would consider them purely bandits; their extortions and tributes would never be considered legitimate though onerous “taxes,” to be paid automatically. The public would quickly resist these illegitimate demands and the bandits would be resisted and overthrown. Once the public had tasted the joys, prosperity, freedom, and efficiency of a libertarian, State-less society, it would be almost impossible for a State to fasten itself upon them once again. Once freedom has been fully enjoyed, it is no easy task to force people to give it up.

      But suppose—just suppose—that despite all these handicaps and obstacles, despite the love for their new-found freedom, despite the inherent checks and balances of the free market, suppose anyway that the State manages to reestablish itself. What then? Well, then, all that would have happened is that we would have a State once again. We would be no worse off than we are now, with our current State. And, as one libertarian philosopher has put it, “at least the world will have had a glorious holiday.” Karl Marx’s ringing promise applies far more to a libertarian society than to communism: In trying freedom, in abolishing the State, we have nothing to lose and everything to gain.

      Another argument, this one by Binswanger goes like this-

      Behind the puerile fantasies of “market solutions” to political and legal disputes lies the collectivist notion that the ideas of the individual are determined by social institutions, so that once the “proper” social institutions have been established, “the people” will automatically agree on political and legal issues, and government will no longer be necessary. In the Marxist version of anarchism, once a socialist economy has “conditioned” men to altruism, they will automatically act according to the principle “from each according to his ability, to each according to his need.” In the “libertarian” version, once a capitalist economy has been established, rational selfishness will become automatic, and “the market” will act to resolve whatever short-lived disputes still arise. In the words of one of the “libertarians”: “Legislation forcing the parties [in a dispute] to submit to binding arbitration would be unnecessary, since each party would find arbitration to be in his own self-interest. Nor would it be necessary to have legal protection for the rights of all involved, because the structure of the market situation would protect them.”

      Its interesting that he attacks the weakest argument he can find. Because Rothbard wrote-

      We have saved for the last this problem: What if police or judges and courts should be venal and biased—what if they should bias their decisions, for example, in favor of particularly wealthy clients? We have shown how a libertarian legal and judicial system could work on the purely free market, assuming honest differences of opinion—but what if one or more police or courts should become, in effect, outlaws? What then?

      In the first place, libertarians do not flinch from such a question. In contrast to such utopians as Marxists or left-wing anarchists (anarchocommunists or anarchosyndicalists), libertarians do not assume that the ushering in of the purely free society of their dreams will also bring with it a new, magically transformed Libertarian Man. We do not assume that the lion will lie down with the lamb, or that no one will have criminal or fraudulent designs upon his neighbor. The “better” that people will be, of course, the better any social system will work, in particular the less work any police or courts will have to do. But no such assumption is made by libertarians. What we assert is that, given any particular degree of “goodness” or “badness” among men, the purely libertarian society will be at once the most moral and the most efficient, the least criminal and the most secure of person or property.

      I am not charitable as Rothbard though. Unless a majority of the people in a particular society are rational, there is no hope for institutions that can enforce “good” law. The best jurists and the best philosophy of law will be of no use in a society of cannibals, or kooks.

  • Aristotle The Geek  On July 9, 2009 at 11:22 pm

    On the objectivity of law, one might need to consider David Friedman’s views. He’s a utilitarian, and an anarcho-capitalist, who doesn’t believe natural rights give us specific answers. Consider this

    In order to define coercion, we need a concept of property, as I pointed out at the beginning of this book–some way of saying what is mine and what is yours. The usual libertarian solution includes property rights in land. I have the absolute right to do what I want on my land, provided that I refrain from interfering with your similar right on your land.

    But what counts as interfering? If I fire a thousand megawatt laser beam at your front door I am surely violating your property rights, just as much as if I used a machine gun. But what if I reduce the intensity of the beam–say to the brightness of a flashlight?…

    A similar problem arises if we consider effects that are small not in size but in probability. Suppose I decide to play Russian roulette, with one small innovation; after putting one cartridge in my revolver and spinning the cylinder, I point it at your head instead of at mine before pulling the trigger….

    But what if the revolver has not six chambers but a thousand or a million?…

    I take off from an airport in a private plane with a cruising radius of a thousand miles. There is some (small) probability that my instruments will fail, or I will fall asleep, or for some other reason I will go wildly off course. There is some probability that the plane, having gone off course, will crash. There are things I can do which will reduce these probabilities, but not to zero. It follows that by taking off I impose some (small) probability of death and destruction on everyone through whose roof I might crash. It seems to follow from libertarian principles that before taking off I must get permission from everyone living within a thousand miles of my starting point.

    I am not claiming that libertarians who argue from rights rather than from consequences believe that you cannot light a match on your own property, or fly an airplane, or breathe out; obviously they do not. My point is that simple statements of libertarian rights taken literally lead to problems of this sort.

    One can avoid such results by qualifying the statements: saying that they apply only to “significant” violations of my rights, or violations that “really injure” me, or that by breathing and turning on lights and doing other things that impose tiny costs on others I am implicitly giving them permission to do the same to me. But once one starts playing this game one can no longer use rights arguments to draw clear conclusions about what should or should not happen.

    The longer I have thought about these issues, the more convinced I have become that arguments about fundamental moral principles do not provide answers to enough important questions. In particular, they provide no answer, and no way of getting an answer, to a whole range of questions about where to draw lines. It seems obvious that we want property rules that prohibit trespass by thousand megawatt laser beams and machine-gun bullets but not by flashlights and individual carbon dioxide molecules. But how, in principle, do you decide where along that continuum the rights of the property owner stop? We want rules that prohibit me from demonstrating my marksmanship by shooting a rifle at flies hovering around your head but do not prohibit all airplane flights. We want rules that prohibit trespass by elephants but not by satellites orbiting three thousand miles over my roof.

    Also, his views on private law enforcement, and homogeneity.

    • K. M.  On July 10, 2009 at 1:35 am

      I agree with David Friedman that natural rights* cannot provide us with specific answers. I hold that on any issue of where to draw a line, any “reasonable” answer is good enough provided the answer is known in advance. The answer can and should (when possible) be improved if a utilitarian or statistical analysis can support a change.
      “Reasonable” simply means not contradicting any philosophical principle.

      *I dont like the term natural rights. I don’t even like the word natural for that matter.

      • Aristotle The Geek  On July 10, 2009 at 7:41 pm

        Even so, “reasonable” equals subjective. Unlike the choice between red and blue, if one assert the primacy of rights, there has to be a right answer and a wrong one. One cannot arbitrarily pick a point in the continuum and say – “this is the law. Now you know it, don’t break it.” This is what forces Friedman to adopt a pragmatic position of an analysis of law based on economics. And as he says, pick up any case book on torts, and you will finds thousands of strange cases. The only alternative is to declare that we know what lies at the ends – flashlight yes, laser beam no, but the middle is a gray area, and the grayness will reduce as more facts come to the fore.

        On natural rights (or law), Rothbard asks what’s so strange about the idea. And he quotes various philosophers and jurists.

        Professor Patterson, in Jurispdence: Men and Ideas of the Law (Brooklyn: Foundation Press, 1953), p. 333, defines the natural law cogently and concisely as:
        Principles of human conduct that are discoverable by “reason” from the basic inclinations of human nature, and that are absolute, immutable and of universal validity for all times and places. This is the basic conception of scholastic natural law . . . and most natural law philosophers.

        and

        Dutch Protestant jurist Hugo Grotius declared, in his De Iure Belli ac Pacis (1625):
        What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God.

        And again:
        Measureless as is the power of God, nevertheless it can be said that there are certain things over which that power does not extend. . . . Just as even God cannot cause that two times two should not make four, so He cannot cause that which is intrinsically evil be not evil.

        This entry in IEP is an interesting one. It differentiates between natural law moral theory, and natural law legal theory. But natural law is “natural law” for a very simple reason-

        The second thesis constituting the core of natural law moral theory is the claim that standards of morality are in some sense derived from, or entailed by, the nature of the world and the nature of human beings. St. Thomas Aquinas, for example, identifies the rational nature of human beings as that which defines moral law: “the rule and measure of human acts is the reason, which is the first principle of human acts”. On this common view, since human beings are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. Thus, Aquinas derives the moral law from the nature of human beings (thus, “natural law”).

        • K. M.  On July 11, 2009 at 1:06 am

          The only alternative is to declare that we know what lies at the ends… but the middle is a gray area, and the grayness will reduce as more facts come to the fore.
          Perhaps, but by the time that happens, there will be plenty more such issues. And what in the meanwhile?
          Just take the example of a speed limit on a road. How does one decide the number? What new facts could come to light that will fix a number or even shrink the “reasonable” range? You might call it a subjective choice. I prefer to call it objective but optional. It is still objective because it is based on facts of reality such as an economic analysis that only provides a range.

          Rights are still primary. An “economic” analysis cannot override rights – primarily because economics implicitly assumes a theory of rights. But why does the primacy of rights mean that they should provide a specific answer in every concrete case?

          Note that the fact that the road should have a private owner is not relevant to the issue. Even a private owner needs to have a method to fix a number. Any number that he fixes should be legal, but that does not exempt him from the moral responsibility to fix an objective number. So the question of how to draw a line remains.

          On natural rights, take a look at this dictionary entry for natural. So many meanings listed for one word! That is why I dislike the word natural. It is too ambiguous.

          But there is more. I don’t have a problem with law that is “discoverable through the use of reason based on human nature” (I would call that objective). I have a problem when anarchists say that anarchy is natural and also claim that an anarchist society is based on natural rights or natural law. That is an equivocation on the word natural. Anarchy is natural in the sense that it exists when people have not made active efforts to establish a state. Natural law is not natural in that sense. Discovering and implementing it requires a lot of active effort (not at all natural if one looks at human history)

          [I have continued to write on what you called peripheral issues because I am getting the feeling that our seemingly minor difference on the issue of anarchy is actually made up of a lot of subtle differences in a lot of concepts.]

          • Aristotle The Geek  On July 11, 2009 at 1:37 pm

            # “It is still objective because it is based on facts of reality such as an economic analysis that only provides a range.”
            All economic analysis/ transactions rely on subjective values. That does not mean that if investment A provides me with a 10% return and investment B with 3% , I am not in a position to decide. Only that all transactions are ultimately reducible to subjective valuations wherein all parties benefit – the 10% and 3% were derived from some subjective criteria. I don’t think you will dispute this.

            Thus when a private owner sets his rules, he is able to rationally calculate cost vs. benefit. Can he stop all deaths? Probably not. But the amount he can charge his customers, his insurance premiums, the perceived loss in reputation etc will force him to adopt a standard based on some empirical observation. He can do this because he is a party to the “road transaction,” the vehicle driver/ owner and the insurance company being the others. But on a road owned by the government, such calculation would be impossible, unless the cost is somehow determined on the market (insurance premium maybe). What should it minimize – death, or cost? This is [similar to] the problem of economic calculation that Mises wrote on when it came to a socialist economy and it applies to all “public goods.”

            In an arbitration case, the judge is not a party to the case. He does not necessarily know what values are at stake. The only laws he can rely on are objective ones. If he knows that sound beyond a particular range can cause physical damage, he can place restrictions on that basis. Even here, as Rothbard as written in one of his papers, homesteading is allowed. If an airport, or a factory making a tremendous amount of noise existed at a particular place, it has already homesteaded the noise it makes. If people move there later on, and claim that the noise is affecting them, the judge cannot tell the airport or factory to stop. The people will have to make other arrangements, like sound proofing their house. Thus, these are objective decisions based on facts of nature. But the moment he is faced with a valuation “fog,” the judge will find himself helpless. This is what I am referring to.

            This is in some ways related to the Rand and Rothbard, objectivity vs. rights discussion. The fact is humans have inviolable rights in theory. Also, in theory, humans are not infallible or omniscient. In the Crusoe, Friday and coconuts case, if Friday sees Crusoe walking away with some of his coconuts, Friday can take action. How in a larger society does the standard change? How does “permission” enter the picture? Even more important is a question that actually belongs in the philosophy of law, what punishment is objectively justified? As Friedman asks,

            The problems I have discussed so far are all associated with the definition of property rights to land. A host of similar problems arise in specifying the rules of a legal system designed to enforce libertarian rights in a libertarian way. A criminal trial rarely if ever produces a certainty of guilt. If you jail (or fine) someone after concluding that there is a ninety-eight percent chance that he has committed a crime, there remains a two percent chance that you are violating the rights of someone who is innocent. Does that mean that you can never punish anyone unless you are a hundred percent certain he is guilty? If not, how in principle do libertarian moral principles tell you what degree of proof should be necessary for conviction and punishment?

            Once someone is convicted, the next question is what you can legitimately do to him. Suppose I have stolen a hundred dollars from you. If all you are allowed to do is take your money back, then theft is an attractive profession. Sometimes I am caught and give the money back, sometimes I am not caught and keep it. Heads I win, tails I break even.

            In order to prevent theft, you must be able to take back more than was stolen. But how much more? When I raised that question once in a talk to a libertarian audience, I was told that it had already been answered by a prominent libertarian–you are entitled to take back exactly twice what is stolen. That was many years ago, but nobody yet has given me a reason why it should be twice. Two is a nice number, but so is three, and there may be much to be said for four, or ten, or a hundred. The problem is not to invent answers but to find some way of deriving them.

            What is the point starting out with “rights are inviolable” and then coming down to “your rights are at the mercy of the state.” I have some disagreements with both anarcho-capitalism as well as minarchism, but the only (partial) answer to the question that I can think of is the one I started this section with – humans are not infallible. Thus rights cannot be violated consciously – like nationalizing property and so on, but since 100% knowledge (of the crime) is in most cases a metaphysical impossibility, one can only rely on what is known.

            (On economic analysis of law, or the problems with natural rights, to know what Friedman is referring to read this, and this, and this.)

            # “I have a problem when anarchists say that anarchy is natural and also claim that an anarchist society is based on natural rights or natural law.”
            I don’t think I am using it in the same sense. Anarchy is natural because man is originally in a “state of nature.” But neither anarcho-capitalism nor minarchism are what can be called a “state of nature.” Both claim that their system is the only one which can be rationally justified on the basis of “natural law.” The anarcho-capitalists don’t claim that they are fighting for the “state of nature,” for “anarchy.”

            # “[O]ur seemingly minor difference on the issue of anarchy is actually made up of a lot of subtle differences in a lot of concepts.”
            True. But the larger minarchy vs. anarcho-capitalism debate has been raging on for four decades now, with no apparent conclusion. The interesting part is both Rothbard and Rand think that values are objective in nature, that a rational ethic is possible. But both derive their systems in different ways. Rothbard seems to rely on axioms to prove self-ownership and the fact that life is a value, and death a negation. Rand uses a different method.

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