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Danny Shahar
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Can law be legitimately commoditized?
« Thread Started on Dec 17, 2008, 11:27pm »
In his book, Egalitarianism as a Revolt Against Nature, Murray Rothbard wrote:

In my view, law is a valuable good that is no more necessarily produced by the State than is postal or defense service; the State can be separated from lawmaking just as it can be separated from the religious or the economic spheres of life. Specifically, it would not be a very difficult task for Libertarian lawyers and jurists to arrive at a rational and objective code of libertarian legal principles and procedures based on the axiom of defense of person and property, and consequently of no coercion to be used against anyone who is not a proven and convicted invader of such person and property. This code would then be followed and applied to specific cases by privately-competitive and free-market courts and judges, all of whom would be pledged to abide by the code, and who would be employed on the market proportionately as the quality of their service satisfies the customers of their product.


But in his essay, "The Results of Human Action but not of Human Design," F.A. Hayek wrote:

...the natural law concept against which modern jurisprudence reacted was the perverted rationalist conception which interpreted the law of nature as the deductive constructions of 'natural reason' rather than as the undesigned outcome of a process of growth in which the test of what is justice was not anybody's arbitrary will but compatibility with a whole system of inherited but partly inarticulated rules.


Is Hayek right? If so, would this undermine Rothbard's view of a commoditized legitimate legal system? Does a competitive court system rely on a uniform legal system, or could decentralized provision of legal services exist without a uniformly accepted set of laws and procedures?
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morty
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Re: Can law be legitimately commoditized
« Reply #1 on Dec 18, 2008, 12:47am »
This is one area where I side with David Friedman over Rothbard.
It is absolutely unlibertarian to demand that courts abide by some mystical "libertarian code" in order to be allowed to function in the free society. Like Rothbard himself points out, law is nothing but a commodity like any other, and therefore, it should arise in the marketplace, not from the whims of would-be central planners.
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Danny Shahar
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Re: Can law be legitimately commoditized
« Reply #2 on Dec 18, 2008, 8:40pm »
Rothbard's response, though, would be that a court enforcing an unjust legal code would itself be guilty of injustice. No?
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rjmii
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Re: Can law be legitimately commoditized
« Reply #3 on Dec 18, 2008, 8:55pm »
What sense does it even mean to say that a legal code is 'unjust'? Justice is defined by what legal standards people actually operate upon. Some of those standards may be destructive to wealth or liberties of action, or may be internally self-defeating, but I find it hard to make the case that justice can be unjust.
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Re: Can law be legitimately commoditized
« Reply #4 on Dec 18, 2008, 10:09pm »
So long as the courts are voluntary, there is absolutely nothing which is objectionable about any law code, no matter how ridiculous we may think it is.
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Re: Can law be legitimately commoditized
« Reply #5 on Dec 18, 2008, 10:17pm »

Dec 18, 2008, 10:09pm, morty wrote:
So long as the courts are voluntary, there is absolutely nothing which is objectionable about any law code, no matter how ridiculous we may think it is.

But on what basis do you make this claim? What do you even define 'justice' or 'voluntary' as?
I can certainly gauge what most libertarians have in mind, IE property and contract, but these are just emergent features of a completely amoral problem-resolution strategies. Why does something stemming from a non-specific non-principle, a totally pragmatic development based on the sanctity of violence (under certain conditions) turn something suddenly 'non-objectionable'? How is something 'voluntary' when some convention of property is kept, yet 'involuntary' when conflicting theories of property entitlement is used?

Libertarians have a tendency to 'hand wave' these problems away, but without a coherent answer to these issues libertarianism rests upon no firmer foundation than Democratic Socialism.

Economics is well justified, but that has no relationship whatsoever (at least as far as I can see) to questions of propriety and what social norms 'should' be in place.
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Re: Can law be legitimately commoditized
« Reply #6 on Dec 18, 2008, 10:57pm »
We have a nice discussion of what I think "justice" is going on in a different thread, so I won't bring that here. As to "voluntary," I define that as most any libertarian would - devoid of initiatory violence.

I think it is incorrect to claim that property and contract are amoral and merely a problem resolution strategy. Robert LeFevre in his wonderful little book The Philosophy of Ownership makes a very convincing case for property being a natural and inescapable concept of all rational beings, and incorporates the strength of a moral demand in favor of proper respect of property rights. It is because we have a unique connection to our property, which no other person can claim to have, that property is legitimate. This is the basic tenant of the first-use principle of ownership. Other libertarians have approached this problem in a similar way, and most rely on this very basic Lockean insight as the ultimate justification for property rights.

Hans Hoppe (among others) would certainly disagree with your position that economics has no valid connection to the questions of property and law. The study of Law and Economics, a self-explanatory name, is the examination of this connection. See: Praxeology as Law and Economics and Quarterly Journal of Austrian Economics, Volume 7, no. 4
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Danny Shahar
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Re: Can law be legitimately commoditized
« Reply #7 on Dec 18, 2008, 11:23pm »

Dec 18, 2008, 10:57pm, morty wrote:
We have a nice discussion of what I think "justice" is going on in a different thread, so I won't bring that here.


Just for anyone reading this thread later, Morty is referring to this discussion.
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Re: Can law be legitimately commoditized
« Reply #8 on Dec 19, 2008, 12:37am »

Dec 18, 2008, 10:57pm, morty wrote:
We have a nice discussion of what I think "justice" is going on in a different thread, so I won't bring that here. As to "voluntary," I define that as most any libertarian would - devoid of initiatory violence.

I think it is incorrect to claim that property and contract are amoral and merely a problem resolution strategy. Robert LeFevre in his wonderful little book The Philosophy of Ownership makes a very convincing case for property being a natural and inescapable concept of all rational beings, and incorporates the strength of a =moral demand in favor of proper respect of property rights. It is because we have a unique connection to our property, which no other person can claim to have, that property is legitimate. This is the basic tenant of the first-use principle of ownership. Other libertarians have approached this problem in a similar way, and most rely on this very basic Lockean insight as the ultimate justification for property rights.

Hans Hoppe (among others) would certainly disagree with your position that economics has no valid connection to the questions of property and law. The study of Law and Economics, a self-explanatory name, is the examination of this connection. See: Praxeology as Law and Economics and Quarterly Journal of Austrian Economics, Volume 7, no. 4

I've had the opportunity to read Hoppe and several critiques can be found, at Mises among other places.
http://www.google.com/url?sa=t&source=we....HLTPcdBDVaamT0Q
http://www.praxeology.com/files/Praxeolo....,Oct.6.2008.pdf
I believe Anthony de Jasay has published a critique, also, but I can not find a link to it. There are plenty of critiques in the libertarian journals archived at Mises.org. Consider me unconvinced. I don't even believe that an external reference of 'ought' is meaningful, so any attempt in that direction is pretty much doomed to failure.

A 'lack of initiation of force' by what definition? You have to define force and what constitutes 'initiation' before this is meaningful. A definition of 'coercion' as 'initiation of force' seems almost a meaningless tautology.

Edit: Here is a critique of Knott's theory of praxeologic ethics.
http://polycentricorder.blogspot.com/2008/10/praxeological-ethics.html
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Re: Can law be legitimately commoditized?
« Reply #9 on Dec 19, 2008, 11:45am »
Just two points here.

First, I was not trying to claim that Hoppe, et. al. have given a rock solid praxeological deduction that leads to a particular order of property rights and so on. I was merely commenting that the connection between economics and property rights is something which is being studied fairly intensely by many well-respected philosophers, economists, and legal theorists.

Second, at some point, we're going to have to define words with other words (i.e., use a "meaningless tautology"). A dictionary does this, for example. You have to know the meaning of some words to be able to understand any given word. It would be ludicrous for me to ask you to define every single word in your previous post, then when you gave me definitions, ask for the definitions of the words used in the definitions. We'd lead ourselves to infinite regress.

So, spare me the definition game. I'll humor you and define these words you asked for in the last post, but I'm not going to continue this forever.

"Force" may be defined as that action which infringes upon property (the objects which have a unique connection to their owner as a result of the first-use principle) rights (attained due to the aforementioned unique connection).

"Initiation," in this context, is the use of force not in self-defense, but rather against someone who is not violating your property rights.
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Re: Can law be legitimately commoditized?
« Reply #10 on Dec 19, 2008, 6:09pm »
I was merely commenting that the connection between economics and property rights is something which is being studied fairly intensely by many well-respected philosophers, economists, and legal theorists.

I do not disagree with this fact, although I think it is usually a mistaken endeavour.

Second, at some point, we're going to have to define words with other words (i.e., use a "meaningless tautology"). A dictionary does this, for example. You have to know the meaning of some words to be able to understand any given word.

Agreed, but the definition of justice as having some specific content and moral significance (as opposed to being a positivistic fact of human 'game' solutions) requires demonstration as to why such a definition of justice is superior to the demonstrable fact of justice, IE why anyone ought to care about your 'justice' as opposed to justice-as-it-exists.
The difference may be drawn akin to the difference reformist and descriptive metaphysics. The Platonist attempts to define and develop his 'more perfect' metaphysics, while the Aristotelean deduces what metaphysical system could and does exist. The clear advantage the Descriptive 'jurisprudence' is that it refers to real facts about present, historical and logical developments. Reformist justice demands, rather, that 'justice' be remade in his image.

Since there are no 'values' or 'reasons' outside practical reasons, and no facts or meaning outside of our naturalistic Universe, there can be little reason for anyone to suddenly add unrelated and potentially meaningless qualifying elements to 'justice'. Libertarians passing moral or legal judgement on slavery, for example, are from my point being simply anachronistic.



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Re: Can law be legitimately commoditized?
« Reply #11 on Dec 19, 2008, 9:38pm »

Dec 19, 2008, 6:09pm, rjmii wrote:

Agreed, but the definition of justice as having some specific content and moral significance (as opposed to being a positivistic fact of human 'game' solutions) requires demonstration as to why such a definition of justice is superior to the demonstrable fact of justice, IE why anyone ought to care about your 'justice' as opposed to justice-as-it-exists.


It requires no such demonstration. I'm making no ethical claims upon people with this definition of justice, I'm merely defining justice. Just as an epistemologist defines "knowledge" as a justified true belief, because that's what most people really mean when they talk about knowledge.

My claim regarding justice is wholly a definitional one - when people talk about justice, they mean it in an objective and exact sense. Whether or not this is how courts work in reality, or even should work in reality, has nothing to do with my claim whatsoever, just as the fact that people will say things like, "I know the coin will land heads" has nothing to do with the epistemological claim that knowledge means a justified true belief.


Quote:
Since there are no 'values' or 'reasons' outside practical reasons, and no facts or meaning outside of our naturalistic Universe


Ipse dixit.


Quote:
Libertarians passing moral or legal judgement on slavery, for example, are from my point being simply anachronistic.


Your moral skepticism is opposed by more than libertarians, of that I can assure you.
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Re: Can law be legitimately commoditized?
« Reply #12 on Dec 19, 2008, 9:53pm »
My claim regarding justice is wholly a definitional one - when people talk about justice, they mean it in an objective and exact sense.

At least as often people make claims about justice which derive from the practice or former practice of institutions. The objectivity of 'real' justice is that anyone living in such a society knows the rules, it is not thereby objectively what 'ought' to be justice.

Your moral skepticism is opposed by more than libertarians, of that I can assure you.

I'm not a moral skeptic, I'm a moral realist. Morality is an emotional judgement brought on by the same sort of system that makes us see procreation as 'good'. It has no objective truth, and certainly is not uniform or necessary in any sense. It is an accident of historical development.
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Re: Can law be legitimately commoditized?
« Reply #13 on Dec 19, 2008, 11:14pm »

Dec 19, 2008, 9:53pm, rjmii wrote:

At least as often people make claims about justice which derive from the practice or former practice of institutions. The objectivity of 'real' justice is that anyone living in such a society knows the rules, it is not thereby objectively what 'ought' to be justice.

What the objectivity derives from is not of my concern when I'm making this claim. My definition does not include any sort of particulars, merely that when we talk about justice, we speak of something that is objective.


Quote:
I'm not a moral skeptic, I'm a moral realist. Morality is an emotional judgement brought on by the same sort of system that makes us see procreation as 'good'. It has no objective truth, and certainly is not uniform or necessary in any sense. It is an accident of historical development.

You are not a moral realist, unless you are just playing with terms.

http://en.wikipedia.org/wiki/Moral_realism
Moral realism is the meta-ethical view which claims that:

1. Ethical sentences express propositions.
2. Some such propositions are true.
3. Those propositions are made true by objective features of the world, independent of human opinion.


Contrarily, the term "moral skeptic" applies much more readily to your position.

http://en.wikipedia.org/wiki/Moral_skepticism
Moral skepticism divides into three subclasses: moral error theory (or moral nihilism), epistemological moral skepticism, and noncognitivism [1]. All three of these theories share the same conclusions, which are: (a) we are never justified in believing that moral claims (claims of the form "state of affairs x is good," "action y is morally obligatory," etc.) are true and, even more so (b) we never know that any moral claim is true.


Perhaps you would prefer what Wikipedia calls "Individualist ethical subjectivism."

http://en.wikipedia.org/wiki/Individualist_ethical_subjectivism
Individualist ethical subjectivism (sometimes simply ethical subjectivism or moral subjectivism) is the meta-ethical view which claims that:

1. Ethical sentences express propositions.
2. Some such propositions are true.
3. Those propositions are about the attitudes of individual people.
[...]
This view, as put forward by Protagoras, holds that there are as many distinct scales of good and evil as there are subjects in the world.
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Re: Can law be legitimately commoditized?
« Reply #14 on Dec 19, 2008, 11:20pm »
My definition does not include any sort of particulars, merely that when we talk about justice, we speak of something that is objective.

But there is a distinct difference between participatory objectivity (objective to those within a system) and monopolistic objectivity (objective to third parties). These two concepts of 'objectivity' are not necessarily the same.

And yes, my position essentially combined moral non-cognitivism and moral fictionalism, so in that sense I am a moral skeptic. What I mean is that I do not discount the existence of 'morality', I simply reject the metaphysical notions that most people have about morality.

I don't think anyone has ever had a meaningful definition of 'good' or 'evil'.
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