Legal breakdown

Sorry I haven't posted for a while. Too busy getting a Ph.D. ... and stuff.

A re-post from Facebook:

Supreme Court Rules Drug Companies Exempt from Lawsuits in 5-4 Vote - Waking Times

Of course, free markets and capitalism are to blame for this, not the corrupt legal system of this country.

This is the same situation as with the environmental pollution 100-150 years ago, when the courts sided with large companies (owners of industrial plants, railroads, etc.) in lawsuits brought against the latter by their smaller neighbors. Fast-forward 100 years, and suddenly everyone is environment-conscious and blaming capitalism, free markets, deregulation, profit, and freedom for the environment being messed up... and of course calling for more government!

But what happened then and what is happening now is not "market failure", but a dysfunction within the state-operated monopolized legal system. One single function that the government is theoretically supposed to do — protect people's rights — it has failed at again and again. And everyone, from the right and from the left, is calling for more government in those areas where it's not supposed to be involved at all, when the only solution is more privatization: including that of the legal system!

And, unsurprisingly, the neocon "justices" voted for the corporatist outcome. The two parties in this country are not liberals vs. conservatives. These terms made some sense in the 19th-century UK, but not the US today (Hayek discusses this quite well in his essay "Why I Am Not a Conservative".) Today it's socialists vs. fascists. Pick your poison.

What does aggression mean?

Spreading peace and unity serves as a catalyst for the Redemption. This is also reflected in Parshas Mishpatim, for the purpose of the laws placed in the category of mishpatim is to increase peace.

-- The Rebbe's sicho on Parshas Mishpotim

Recently, I have been trying to make sense of the basic axiom of libertarian creed: the Non-Aggression Principle (NAP). The Principle states that it is wrong to initiate aggression. But, as my rabbi has once noted, it is not aggression if the force was used not against your property.

Thus, seemingly, reliance on NAP forces one to have a good definition of property a priori. I have been trying to find and justify one recently and make sense of the popular libertarian justifications for property according to different logical systems, but so far, the most straightforward a priori concept of property for me remains intuitive. Which is not straightforward at all.

But, I had an epiphany tonight that I may have been going about it the wrong way. Or not the only possible way. What follows is a portion of an e-mail I wrote to my rabbi. I am not fully convinced this is the right approach, but I suppose it doesn't hurt to think out loud.


Imagine we play a game called "Don't Be an Aggressor". The rules of the game are:

1. We have a resource about which we are in conflict (both of us claim it as our own).

2. One of us gets labeled as an aggressor (and loses the game) if he does one of the following:

a) he initiates violence (or threat thereof) to force his claim 

b) he uses deception (e.g., fraud) or cover of ignorance (e.g., nighttime) to take hold of the resource and run away 

c) he doesn't seem willing to come to a resolution of the claim in a reasonable time (e.g., he holds on to the resource indefinitely and never shows up to court and just hides behind his armed walls, or he uses the above rules to prevent the other disputant from taking control of the resource under the threat of being labeled an aggressor) — there may be an arbitrary time limit imposed by a local custom or some other factor 

d) in one variation of the game, if the time ran out, per c), both of us have lost (the situation deteriorates into "might makes right", and both are labeled aggressors, or the one who gets the resource is labeled an aggressor; he gets the resource at the price of social and/or ethical disapproval).

3. Once someone has become an aggressor (in a-c), the other disputant can use either violence or deception to take control of the resource, and he is not labeled an aggressor. So, for instance, if someone tries to take the resource from me by trickery or cover of the night, or pulls out a gun, I can pull out my gun and shoot him — and I am not an aggressor.

Also, people in the society can help me. (This assumes that the society watches the situation from the outside and sees clearly who initiated violence or deception or dilly-dallied until the time ran out. And that people in the society agree to play this game.)


This means that we are forced both to agree whom the resource belongs to. It doesn't matter how we do it. We can both actually agree after discussing it with each other. We can each hire a third-party arbitrator or each get our own rav, with both rabbonim picking a third one (it was also done this way, lehavdil, in the "Wild West"). We can flip a coin. We can divide the resource. But the point is that we have to come to resolution peacefully (and, remember, time is ticking as per 2c).

The point of the game (and of NAP) is not to assign property "justly", but to assign it b'darkei sholom -- peacefully. It assumes that initiation of violence is the wrong way to prove the justice of your claim. The game doesn't mean you can't have an a priori conception of property or justice based on whatever convictions, but you have to convince your opponent of it peacefully, or come to some sort of negotiated compromise, or leave it to a third party to arbitrate between you. But you just can't force your claim through aggression.

By the way, the government loses because: 1) it proves the justice of its own claims with threats of violence, 2) it is its own arbitrator according to its own rules.


I am not saying that this approach does not have holes and there aren't things to be worked out here. We may need to create more rules, etc. But I think I may be onto something here... I am also not saying I agree with the above. I am just trying to make sense of the different views to see whether I agree or disagree with them.

Also, this may be just one aspect of aggression and NAP. The other may be making claims on resources that have already been claimed (without having other claims beforehand). Or claiming resources unjustly (according to universal intuitive concepts of justice). Etc.


Another point is that one might think that libertarians hold freedom as the highest value. And that's foolish because it's not the only or the highest value. But the above analysis shows that libertarians (at least anarcho-capitalists) hold darkei sholom (peace) and justice to be the highest values. Freedom is the extension of those principles.

And I don't think that's quite so foolish.

Liberty throughout history

Many critics of libertarianism argue that there have never been an anarchic society or purely free markets. I am not completely sure what they are trying to say by that (most arguments they make using those two facts are fallacious non sequiturs), but here is why the whole approach is wrong. (This is ignoring the fact that there have been societies like medieval Ireland or Iceland, where law, for example, was anarchic. I.e., the government was not in charge of law production or enforcement. There were still kings, but they didn't write the laws.)

One can analyze carefully what made societies prosper and/or fail, both legally (i.e., what promoted or reduced justice) and economically (i.e., what promoted or reduced prosperity). I think such an analysis reveals that specifically freedom-promoting principles that specific societies adhered to allowed them to prosper, while adherence to anti-libertarian principles acted detrimentally and was eventually the cause of the societies' downfall and/or transformation.

There are multiple reasons for this, but the basic one is that freedom promotes competition and exploration, and those promote the best adaptation of a society to its conditions and realization of its goals. If one centralized organization is trying to find a solution, it will always do so worse than ten organization (or individuals) doing the same and competing/comparing notes with each other. This is why increased freedom leads to increased prosperity.

(Incidentally, this is true about all natural systems. Greater freedom leads to greater adaptability. When a bird learns a song, its brain creates many semi-randomized patterns of motor commands (the notes for the song, if you will) of which the bird picks the best variation; this repeats until the bird, through such neurological experimentation, finally learns the song.)

What about legal freedom? The whole concept of law is to promote peace and cooperation. It is the alternative to violence, by definition. (That is why law produced by the government is oxymoronic unless it happens to coincide with the "natural law", the natural ways to peacefully resolve conflicts.) When and where violence was embedded in a society's legal system, it led to arbitrariness of justice system, increased conflict, stifling of cooperation, and increased tyranny. Those led to decreased economic freedom and decreased prosperity. When freedom and respect for peaceful, non-violent resolution of the conflicts (which is the basis of natural law) were favored, there was increased cooperation, decreased violence and tyranny, and increased prosperity.

I won't prove this principle on one foot. There are many examples, from Roman Empire to modern Europe and US. (I don't know much about the history of East Asia, but I believe the same must be true about it too.) In every society, "pockets" of freedom within its legal and financial framework allowed it to prosper, while "pockets" of tyranny led to stagnation and eventual death.

Unfortunately, British society, where the great respect for freedom was cultivated for centuries, has turned its back on freedom in the 20th century. No wonder that it is at the same time a police state and a European hub of criminal activity. No wonder London is called "the most expensive third-world capital".

We are yet to see what direction the American society will take. That direction will determine its fate.

* * *

For analysis from legal perspective (that inspired the above thoughts), see this quote by Roderick Long analyzing Lysander Spooner's legal views:

Apparently, then, the immanent presence of natural-law maxims in the legal tradition is not confined to America but stretches back through the English Common Law to Roman law and beyond. 

But just why is it the case that all these different historical legal systems have enshrined libertarian natural-law principles in their maxims? After all, it’s not as though Spooner supposes that most of these systems have been especially libertarian in practice; on the contrary, he assures us that “[a]ll the great governments of the world – those now existing, as well as those that have passed away – have been .... mere bands of robbers, who have associated for purposes of plunder, conquest, and the enslavement of their fellow men.” (Natural Law I.3.2, p. 18.) 

His answer, it seems, is that some degree of reliance on libertarian principles is necessary in order to have a workable social order: the conditions on which “mankind can live in peace, or ought to live in peace,” are “first, that each man shall do, towards every other, all that justice requires him to do; as, for example, that he shall pay his debts, that he shall return borrowed or stolen property to its owner, and that he shall make reparation for any injury he may have done to the person or property of another, and “second … that each man shall abstain from doing to another, anything which justice forbids him to do” such as “theft, robbery, arson, murder, or any other crime against the person or property of another.” 

So long as these conditions are fulfilled, men are at peace, and ought to remain at peace, with each other. But when either of these conditions is violated, men are at war. And they must necessarily remain at war until justice is re-established. 

Through all time, so far as history informs us, wherever mankind have attempted to live in peace with each other, both the natural instincts, and the collective wisdom of the human race, have acknowledged and prescribed, as an indispensable condition, obedience to this one only universal obligation: viz., that each should live honestly towards every other. (Natural Law I. 1. 1, pp. 5-6.) 

In short, libertarianism is simply the consistent application of those norms whose approximate application is a universal precondition of peaceful coexistence. Even a sadistic tyrant needs most of his subjects to be cooperating peacefully with one another most of the time if he wishes to retain any power. It is thus no wonder – and no accident – that legal systems have historically appealed, at least to some extent, to libertarian principles – which is why they are there in the legal record for Spooner to find and invoke them.

Women have no right to vote

I love Lysander Spooner (1808–1887). A great champion for equal rights of all humans, he once wrote an essay in which he claimed that women have no right to vote.

Then he explained: nobody has a right to vote. By "voting in" a particular government, we support the concept that one elite group of people (albeit of our choosing) may rule over the rest of the populace and create so-called "laws" to compel the populace to its will (or, perhaps, compel the minority to the will of the majority).

Instead, argued Spooner, legal laws (rules for peaceful coexistence between human beings) must be naturally discovered. I might add: just like laws of proper spelling are "discovered" to facilitate exchange of linguistic information.

As one of my favorite modern libertarian philosophers, Roderick Long, writes:

In the provocatively titled “Against Woman Suffrage” (New Age, 24 February 1877), the feminist Spooner argued that as human beings, women have “all the natural rights that any human beings can have,” and so have “just as good a right to make laws as men have, and no better; AND THAT IS JUST NO RIGHT AT ALL,” since “[n]o human being, nor any number of human beings, have any right to make laws, and compel other human beings to obey them,” and to claim such a right is “to say that they are the masters and owners of those of whom they require such obedience.”

While not wishing to cast “any special odium … on the woman suffragists,” whom he regards as “undoubtedly among the best and most honest of all those foolish people who believe that laws should be made,” Spooner declared that “[i]f the women, instead of petitioning to be admitted to a participation in the power of making more laws, will but give notice to the present lawmakers that they (the women) are going up to the State House, and are going to throw all the existing statute books in the fire, they will do a very sensible thing.”

I echoed the same sentiment in one of my former posts: I Believe It's the Law.

See also: Democracy and the Illusion of Public Ownership.

Essential

Normally I don't like to post FB memes on this blog, but I love this one:

Democracy and the illusion of public ownership

Today, in a shower, I put a finger on what I subconsciously understood to be wrong with democracy. And so I hurry to share it with my (potential) faithful audience.

What's wrong with democracy is that it is an actualization of the legal fiction of public ownership. Let me explain what I mean.

Imagine that 500 people presumably own some public property: let's say, a central square. That's our premise.

Now, by 'ownership' I mean 'legitimate control'. When I own something I can control it (and we agree that I am doing so legitimately): I can decide what its fate is: I can use it, leave it alone, allow others to use, or forbid others from using it (even if I am not using it at the moment myself). A funny counter-example is a story of Ludwig Wittgenstein who once told him that he would give me some trees growing nearby as a present, as long as the student agrees never to use or alter them in any way or prevent the previous owners from using them in whatever way they wish. The point was to illustrate what ownership is: it's legitimate ability to exercise control over something and prevent others from doing so. If you don't have that, then your "owning" of something is merely academic.

Next comes democracy.

People elect a mayor of the village who will decide what happens to the public square. 251 people vote for Bob, while 249 vote for Bill. Bob becomes the mayor and decides to plant a tree in the public square, against the wishes of 400 people. But, they can't do anything about it, because Bob was elected through a democratic process. 'Next time we will be wiser', say the 400 people (or, at least those that voted for Bob) and walk home.

Let's see what happened here. There were two acts of aggression:

1. When 251 people imposed Bob as the village mayor on the 249. The argument that had it been the reverse (with Bill becoming the mayor), it would be worse, may be true, but it doesn't refute that electing Bob was an act of violence.

2. When Bob decided to plant a tree against the people's wishes.

So, first we had an act of oppression of the minority at the hands of a majority (249 vs. 251), which in itself created the oppression of majority at the hands of a minority (the villagers vs. Bob). But since the first act is meaningless in and of itself (if by the village's constitution, Bob couldn't do anything, then his election would not be a meaningful act of any sort), the essence of representative democracy, as we have discovered, is the same old oppression of majorities at the hands of minorities, which we had back when we had monarchy.

The difference is that the majority of the people get to decide who the jerk on the throne is going to be*. The difference between monarchy and representative democracy is, therefore, what I call 'economic'. It's not a principled difference, it's a difference of the expected practical outcome. Sometimes the 'economic' expectation works out, sometimes it doesn't. (Certainly, publicly elected officials have done more damage than the kings, but perhaps that's because they had better technology and more people at their hands.)

The same goes for constitutional democracy: the basis for preferring it (an expectation that it would somehow curb the abuses of the elected 'jerk') is economic. Sometimes it proves to be true; sometimes it doesn't. Certainly American constitutional democracy has proven to be a failure to a large extent. Today, most people don't even understand what constitutionality means.

So what then? Direct democracy? Well, first of all, as all of you thought the moment you read these words, it's economically unfeasible for a large number of reasons. Second, it creates the same oppression of the minority at the hands of the majority (although, true, it doesn't create the second step of the new oppression of a new majority at the hands of elected minority).

So, at least under absolute monarchy, there are no illusions: the king owns the land, and he decides what happens on his property. End of story.

Of course, economically, it's better if there are many small private owners (each deciding what's going on on his property, and private competing judicial 'authorities' arbitrating arising disputes), but that's another discussion.


But this is what I thought about in the shower: what's particularly funny about the above situation with the villagers and the central square is that the whole time they are being oppressed (by either majorities or minorities) the people live under an illusion that they somehow own the public property. In reality, however, the elected official owns it, at least to the extent that the tolerance of the people will allow him (directly or through some constitutional mechanism).

Imagine the following scenario: a family of five decide to buy a dinner. They vote for milchiks vs. fleishigs, and four out five decide to get a pizza. The fifth person has to go along, and when they are eating the pie, he complains about the taste. One of the four looks at him and says: "Well, don't complain now -- you bought it!"
__________
* A more sophisticated reader may point to the idea of government with consent. So, the difference between a democracy and a monarchy is that in the first case, people in charge govern with the consent of the majority. But that again is fallacious: how do you know that every decision is made with the public's consent? We don't make an argument that the king rules with the consent of the governed: we check it, through elections (and the elections show that it's difficult to predict, without actual verification through voting, whom the majority supports). But if we are going to verify through voting that the president and Congress have the consent of the majority for every law they pass, then we might as well have a direct democracy!

Otherwise, we are back to the situation where every time the government passes a law, it goes against public wishes (or at least without any evidence of public agreement) regarding what should be done with the public's presumed property.

Begging consent

(sculpture depicting the famous duel between samurai Miyamoto Musashi and Sasaki Kojirō)

"My sword is longer than yours; hence, you have to obey my will"

— what most arguments in favor of the government's legitimacy amount to

Oftentimes, one hears the "consent" argument as a justification for the necessity and moral imperative of keeping the government's laws.

For instance: "You live in America (Canada, New York, Hicksville, etc.); therefore, you have to obey the laws. If you don't like the laws here, go live somewhere else." (A tangential note: the "laws" in this case means "whatever the government said", not "what people's custom is". The distinction is important, as will be seen below.)

Or: "People must obey the ruler's laws, because by living on his land, they showed that they accepted his authority over them." (This argument is used by some halachic authorities regarding dina d'malchusa dina.)

It seems to me that this argument has a gaping hole in its logic. The argument assumes (and in no way attempts to prove) that the government a priori has legitimacy — hence, one must either obey its laws or go live somewhere else, since the government has authority either to enforce the laws or expel the law-breakers. But this argument cannot be used to prove that the government's laws are legitimate, since that would be a classical case of begging the question!

Why do people fall for this argument? Because they mistake positive law for natural law. They assume that "whatever the government said" is equivalent to "how most people behave". In many cases, as I previously explained at length, it is true: the positive law (although illegitimate to begin with) eventually creates patterns of behavior. For instance, if someone wants to drive on the left side of the street, he should go live somewhere else, since most people drive on the right side of the street in this country. Out of respect for the majority of the people (whose custom "was there first"), one must obey the local natural laws (whether or not they arose spontaneously or resulted from oppressive positive law).

But this in no way means that, for instance, tinting your car windows more than 35% (which is illegal in some states) is being disrespectful to local people, just because some local bureaucrat decided to forbid it.

Hence, if I claim that some bully (whether he is an elected politician or a local mafia boss) is illegitimate and, therefore, his laws are illegitimate, telling me that "I live on his turf, therefore, I have to listen to him" is illogical. I live on what he claims to be his turf (with support of some people), but that in no way makes his claim legitimate, unless the "turf" actually is his property which he can prove to have homesteaded.

Which brings me back to dina d'malchusa dina: the above analysis shows that the "tacit consent" argument and "king the landowner" argument are in fact one and the same. Without the second, the first one falls through. But, it seems to me, that if the consent argument is presented as some sort of chiddush, or at least as a shitta standing aside from the "king the landowner" argument, then the consent argument is simply fallacious.

Pray for the welfare of electricity monopolies

The government in the US grants monopolies to electric companies. Thankfully, it's not one company per country, but oftentimes, it is one company per state, or per region, or at least per city.

Recently, the electric monopoly of Boston area, NStar, has received a good share of criticism. Most of it has to do with outages resulting from old or badly maintained equipment, personal errors, long response times to electric line damages (thousands of families were without electricity for weeks as a result of a "hurricane" last year — part of the time, during freezing weather), drastically rising costs of service and operation, and environmental mishaps. Basically, every problem that can happen to an electric company has happened to NStar.

I am sure the same is the case with almost every monopoly out there. I remember, when I was living in the South, the same things were said about the local energy company, Entergy.

Some of these things may not be the companies' fault. For instance, rising service costs have to do with rising gas prices, which the companies are hardly responsible for. On the other hand, we simply do not know what the "right" price for electricity in a given region should be, because there is no competition, and a company can charge higher than it would had the energy business existed in a free-market condition. The same goes for response times, equipment maintenance, etc.: all these problems which are blamed by NPR hosts on "greed" have to do with the government creating a monopoly. And also, probably, with greed. And mismanagement. But greed and mismanagement are allowed to flourish and give fruit when there is no competition. Free markets punish for them. Customers punish for them.


All this is beside the point, however. We do all use electricity. Every day, people use it. Hospitals use it. Police and firefighters use it. Businesses use it. Synagogues use it. We use it during the week, on Shabbos (passively) and on Yom Tov. Electricity has greatly transformed our existence, has benefited us immensely. It has allowed us to live more comfortable, more fulfilled, more meaningful, and longer lives. It has allowed us to be (with all other things being equal) better human beings and better Jews. Just today, without electricity I may have suffered great health problems (G-d forbid) as a result of the heat wave.

Therefore, I wish to propose the following two statements:

1. Pray for the welfare of local electricity monopolies. For without them, we would all sit in the dark. We would be cold in the winter and hot in the summer.
2. Even a worst electricity monopoly is better than lack of electricity monopolies, when a man has to sit in the dark and live in the Middle Ages.


Clearly, the two statements are ridiculous. Right?

Without NStar, there would be a different company. If it's a bad electric company, it must fail and be replaced by a better one. Better yet: why not allow electric companies to compete and see which one does a better job or gets a greater share of the market? In fact, let two or more companies co-exist and cater to different customers' preferences. I am currently trying to decide whether to stay with my current Internet service provider (which charges cheaper rates and gives better speed of connection, but whose service outages are more frequent) or switch to a different one. The same kind of choice should exist for electric companies.

And the second statement is silly too. It seems to imply that there are only two choices: NStar or sitting in the dark. But that is clearly not true. There is a middle ground.

(Also, it's not really true that without electricity we would be cold in the winter or hot in the summer. People would come up with some of the obvious alternatives.)


So, why, when the same two statements are said regarding the government (first one is modeled on a Mishna, second — on a rishon's comment to the Mishna), we just gulp them up? I am not saying that we should just discard something that Chazal say, G-d forbid, but perhaps when the statement is strange, we can use a little common sense and logic to try to figure out its meaning and applicability, as opposed to doing Bible-thumping.

Perhaps what Mishna said was that we should value electricity... I mean, law and order — not the actual organization of the government, but the service that it provides. Just like we should value medicine. Without it, people would surely die in many cases. Does this mean there has to be a monopoly on medical decisions in a given geographic area (and, for that matter, as wide an area as possible)?

Perhaps in Mishna's times and the place where it was written, there was no societal concept of anarcho-capitalism (many independent and passively competing sources of law and order coexisting within the same territory). We know that such a thing has existed in the past, but it doesn't mean this concept was available to the specific society of Mishna's times and place (or those of the rishon commenting on the Mishna, even though he was a relative contemporary to medieval Ireland and Iceland).

Political concepts are not much different from technology or medicine or economics. All of them are just ideas about how to do things. Their accumulation and development require research, passage of information down the generations, ability to improvise and experiment, and flexibility to accept change. We shouldn't blame Chazal for working within the political realities of their times any more than we should blame them for working within technological, economic, or medical realities of their times.

But then again: we should be cautious to accept blindly the statements that are so strongly intertwined with the state of the contemporary knowledge as binding to our times, and, worse yet, as some sort of eternal instruction of how to view certain phenomena. That may refer to bleeding or leeching; that may also refer to cornering the markets or the government.

Social contract, majority rule, and chazakah

I have just seen the following justification for the concept of the government in a book on Jewish ethics. I am paraphrasing (since I don't have the book in front of me), but the idea is common enough. It went something like this:

All civilized societies recognize the need for law and order. The individuals living in the societies recognize that they need to give up some of their freedoms and rights in exchange for protection of others -- in particular, freedom from danger and right to safety of one's person and possessions. 

To achieve this goal, the societies form governments which represent the people of the individual societies. Since no government can enjoy a unanimous support, the majority rule is evoked: the fact that majority of people support a particular government creates a custom of acceptance of this government's rule. Just like any custom supported by the majority, this custom is binding on the minority.

Let's break it up in parts and see if they make sense:

All civilized societies recognize the need for law and order.

So far, so good. Agreed.

The individuals living in the societies recognize that they need to give up some of their freedoms and rights in exchange for protection of others -- in particular, freedom from danger and right to safety of one's person and possessions.

And we started off so nicely... The purpose of the law is to protect one's rights, correct. But it does not follow that to have law you need to give up some of your other rights (for instance, a right to pick your own rights protector out of the list).

For instance, you can have a society built like any anarchic societies throughout history: for instance, medieval Ireland or Iceland. You choose your own law-enforcement (or rights-protection) agency, become its voluntary client, and enjoy the protection of your rights. As long as the majority of people agrees in the society that such a state of affairs is good and that peaceful arbitration between private "government" agencies is preferable to violent wars between them, such a society will have law and order without a need to give up one's rights.

Since no government can enjoy a unanimous support, the majority rule is evoked: the fact that majority of people support a particular government creates a custom of acceptance of this government's rule. Just like any custom supported by the majority, this custom is binding on the minority.

Note that here there are two arguments for the defense of a government monopoly:

1. We need a monopoly, because otherwise we wouldn't have law and order. (Disproved above.)

2. Because most people choose a particular government, this choice creates a custom. This custom, just like all other customs, is binding on the citizens of the community.

I want to address the latter argument. It is an argument similar to one present in the discussions of some poskim (both Rishoinim and Achroinim) in justificaiton of dina demalchusa dina. Some of the modern commentaries invoke this precise argument, attributing it to the Razal.

Let's try to rephrase the argument giving an example:

In most cities, people enjoy being able to travel to other cities quickly by buses. For that reason they sometimes endure sitting in an uncomfortable seat for a few hours. In a particular community, the majority prefers to travel by Greyhound. The minority prefers Bolt Bus which has more comfortable seats but more expensive tickets.

Because everyone recognizes the need to have buses, the majority may compel the minority to choose Greyhound. First, because you can't have two bus lines operating within the same city (the buses will be unable to negotiate the right of way on the road and run into each other, causing casualties). Second, because by choosing Greyhound, the majority created a custom, and just like any other custom, this one is binding on the whole of the community.

 The absurdity of both arguments is self-evident.

But what about the Razal? I think what they are saying (and I base this on the article about dina demalchusa dina in Encyclopedia Talmudis) is the following:

When people interact, they do so within certain customs. Customs are implicit understandings between people that need not be negotiated explicitly. That is why the majority's custom may be binding upon a minority (as long as the minority interacts with the majority in the area that the custom applies to). For instance, if in some locale, upon hiring a worker to paint your house, it is customary to pay him for a half-an-hour lunch break, then the workers have a right to demand the break. If you did not pay them for the break time, you stole from them (or committed a form of stealing, called neshek, "withholding a debt").

Customs may arise spontaneously. Customs may also be set up by the authorities. For instance, in the US people drive on the right side of the road. In the UK -- on the left. It could be that these customs arose spontaneously. It might also be that they were set up top-down, by some authority. It doesn't matter. As long as the majority abide by this custom, it becomes binding on the minorities and individuals (as long as they share the same commonly used road with the majority).

Because the laws of the government practically speaking create such customs (whether government coercion is ideal or moral doesn't matter; the fact is that it creates patterns of human behavior), dina demalchusa dina -- the law of the land is binding.

Note, first of all, that this refers only to the laws which create patterns of behavior. Not arbitrary positive regulations or restriction (such as "it's illegal to sell used mattresses in Massachusetts"). Second, the chazakah (custom) mentioned here is not regarding the acceptance of the government, but regarding  the acceptance (or tolerance, or obedience under threat of punishment) of its laws as customs. Hence the popular translation of dina demalchusa dina: "the law of the land is the law". The law of the land: meaning, its people's customs.

Livestockholm Syndrome

From Wikipedia's article:

In psychology, Stockholm Syndrome is an apparently paradoxical psychological phenomenon in which hostages express empathy and have positive feelings towards their captors, sometimes to the point of defending them. These feelings are generally considered irrational in light of the danger or risk endured by the victims, who essentially mistake a lack of abuse from their captors for an act of kindness.

Citizens of many countries suffer from Livestockholm Syndrome — a paradoxical psychological phenomenon in which citizens express empathy and have positive feelings towards the governments that have enslaved them, sometimes to the point of defending them.

These feelings are generally considered irrational by libertarians in light of the danger, risk, abuse of rights, and financial damage endured by the victims, who essentially mistake a lack of a greater abuse from their captors for an act of kindness and excuse the abuse by arguing that their captors do some good things and that without their captors, such good things would be impossible (despite contemporary and historic evidence).

Interestingly, the victims of the governments are not oblivious to the damage they incur from their captors. But they always manage to attribute the damage to other factors (e.g., too much free market — in the cases when the damage was done by too much regulation or central management), oftentimes calling for more involvement of the government, one way or another.

The syndrome is a particularly dangerous meme in that it is very contagious and self-reinforcing. Seeing other victims' livestock-like behavior reinforces a citizen's conviction that without the kind shepherd, the herd would not survive.

Three answers to the vast majority of liberal arguments

I think if there was a way to answer in one sentence to the vast majority of liberal arguments of why the government should do X or Y, this would be the best answer from constitutional point of view:


(source)

In the famous case of United States vs. Lopez, it was argued whether the government has powers, under the Interstate Commerce Clause, to make it illegal to carry concealed firearms on school campuses. The argument that the General Solicitor (the government's lawyer) presented was that carrying guns on school campuses disrupts education, which eventually has an effect on commerce of the nation. Therefore, in an effort to preserve the national commerce, the government has a power to ban guns on the campuses.

The defense lawyer argued that the Congress has to make findings explicitly linking the banned activity to the interstate commerce, not a hypothetical that might affect interstate commerce. Furthermore, he argued, it is not within jurisdiction of the Federal Government to fight crime on campuses or protect education — that remains a State's prerogative, and when the Government tries to interfere, it is crossing into the State's jurisdiction.

Justice Kennedy asked whether the Federal Government can make it illegal to throw a firebomb into a school house.

Before the lawyer had a chance to answer, Justice Scalia said the text quoted above. Sometimes the concept of the limit on the government's powers means a limit on the government's powers to do good things as well.

Or what one considers to be a good thing.

This, then, is another argument that one can throw at the liberals. The reasons why the government should not regulate people's private lives in an effort to improve the society are:

1. It is pragmatically bad, because the government is plagued by all the problems of a central planner and cannot predict (as nobody can) how to distribute resources most effectively, how to regulate without creating perverse incentives and unintended consequences, etc. In short, when the government interferes, it makes things worse. Opposite from what it was trying to do. Therefore, distribution of resources and improvement of society is best left to private entities competing on a free market. This is an economist's argument.

2. It is a violation of people's natural rights. Even if something is a good thing, you can't violate natural law, in the form of people's natural rights, to achieve this good thing. It is naturally illegal. The function of the law is not to improve society, but to resolve conflicts. When the government attempts to do the former by interfering with people's private lives, it is not only misusing the function of the law but is in fact going against it. This is a libertarian legal philosopher's argument.

3. It is unconstitutional. The people simply have not given the government such powers in the Constitution when it was written. If people wish to do so later, they can do so by ratifying an Amendment. But until that has been done, the Constitution must be interpreted according to the original intent, because the original intent shows which powers the people and the states have clearly ceded to the government.

For instance, imagine I give you a job of cleaning my house under the arrangement that you only clean in the specific places that I told you to. Then, if you want to enter room A, you have to make sure I have given you explicit instructions to do so. If "situation has changed" and, say, there was a spill that went under the door into room A, you can try to call me and obtain my permission to enter the room A. But until I have given you an explicit permission to do so, it is unlawful for you to enter my property without a permission. The same way, under the Constitution, the government has been given a limited list of enumerated powers that the individuals and the States have delegated to it. If the government tries to do something that it was not delegated to, it is infringing the States' and the individuals' rights. This is a conservative constitutionalist's approach.

This is a good video about Justice Scalia:

Tricky thing called "democracy"

Before I start, I’d like to note that this argument does not touch the morality of government in general or the religious appropriateness of having an Israeli (secular) state. It simply touches the question of peace and preserving Jewish lives, prosperity, and tranquility in the region.

Yungerman in Lubavitch posted the following video on Facebook:

So, it’s nice that Rick Santorum recognizes Israel’s rights to keep its "honestly" conquered lands, right? Let’s say that I don’t have a problem with that (within the realm of something called "international law", something whose legitimacy I am not sure I recognize fully, but that’s another issue). I am not actually sure, because I haven’t really thought about it for a long time. The logical nature of this principle evades me (why shouldn’t the defending state give the attacking state’s land back, with the attacking state paying reparations for the attack?.. of course, if the attacking state refuses, the defending state can keep whatever portion of the land is equivalent to the reparations). But then, most logical arguments about "states’ rights" evade me. So, as I said, let’s say I don’t have a problem with the concept of keeping the territory conquered in self-defense.

The problem is that, as everyone knows, Israel is not interested in making the presumed "Israelis" (as Santorum called them) that live in Gaza and West Bank into Israeli citizens because of a tricky thing called "democracy" and "abuse of minority at the hands of majority" — something which, incidentally, Rick Santorum is a fan of himself. That is why many Israelis themselves claim that they support the idea of a two-state solution to the crisis.

Also, the problem with what he is saying is that while US should not have to give Texas back to Mexico, if Texans wanted to have their own country (or go back to being Mexicans), US should allow it to happen, since whatever presumed "implicit contract" might have existed between the people and the government is broken as soon as the people want to be rid of the government. Therefore, after the contract is broken, the government is no longer "representing", but is simply occupying the land and its people in a state of tyrannic aggression. Americans did fight a War of Independence against a country which they were presumably citizens of, didn’t they?.

I think West Bank/Gaza, as well as Northern Ireland, as well as many other places on Earth are good examples of how a region could benefit from anarcho-capitalist (or voluntarist) society. A "No-State" solution: a lot of private companies, paid for by private citizens, ensuring safety and law in the land. The companies can have only Jews, Jews and Arabs, only Arabs, etc., as their clients and can negotiate between each other a state of peaceful coexistence. This would also require the land to be privatized — something that would solve many other problems. Jews could still have their "government" — i.e., a set of private protection and legislative companies that favored Jewish interests in the area (and had a lot of guns, a lot of money coming from Jews in the region and throughout the world, and a lot of negotiating power).

In this case, negotiation between companies may be quite tricky, and I do not think that a military conflict could always be avoided, at least at first. But the region is already in a semi-constant state of military conflict! How much worse could it get?

Plus, the companies would compete with each other for quality of service. Today you have a monopoly in the form of Israeli Army, which, frankly, we have no idea how effective it is. It’s more effective than its Arab colleagues, but so what? It’s also more effective than Eskimos. We are talking about the effectiveness using the same people, same technology, same place and time. Different managers, different business strategies (which, in war today, include things like effectiveness of defense, best management of resources, human and material, and as little as possible casualty to non-combatant civilians for humanitarian and PC purposes).

The same goes for Israeli legislature. Or, basically, any other monopoly in Israeli society. I would say most ills of the Israeli society today that I know of (besides rudeness) come from the existence of the state and a monopolizing government.

Note that I am not saying that Jews would be better off living under another state. It might be that Israeli State is the best slave-master/overseer that Jews in the region can expect under the current conditions. But why have a slave-master at all?

Does being able to vote make us free?

Very nice video.



More on the topic:

Thomas Jefferson's Nightmare 

Critique of Benign Democracy

Medieval Iceland as an example of private law creation and enforcement

Fascinating article on private law in Iceland: Private Creation and Enforcement of Law: A Historical Case.

Legal conflicts were of great interest to the medieval Icelanders: Njal, the eponymous hero of the most famous of the sagas, is not a warrior but a lawyer: "so skilled in law that no one was considered his equal." In the action of the sagas, law cases play as central a role as battles. 

Second, medieval Icelandic institutions have several peculiar and interesting characteristics; they might almost have been invented by a mad economist to test the lengths to which market systems could supplant government in its most fundamental functions. Killing was a civil offense resulting in a fine paid to the survivors of the victim. Laws were made by a "parliament," seats in which were a marketable commodity. Enforcement of law was entirely a private affair. 

And yet these extraordinary institutions survived for over three hundred years, and the society in which they survived appears to have been in many ways an attractive one. Its citizens were, by medieval standards, free; differences in status based on rank or sex were relatively small; and its literary, output in relation to its size has been compared, with some justice, to that of Athens. 

While the characteristics of the Icelandic legal system may seem peculiar, they are not unique to medieval Iceland. The wergeld -- the fine for killing a man -- was an essential part of the legal system of Anglo-Saxon England, and still exists in New Guinea. The sale of legislative seats has been alleged in many societies and existed openly in some. Private enforcement existed both in the American West and in pre-nineteenth-century Britain: a famous character of eighteenth-century fiction, Mr. Peachum in Gay's "Beggar's Opera," was based on Jonathan Wild, self-titled 'Thief-Taker General," who profitably combined the professions of thief-taker, recoverer of stolen property, and large-scale employer of thieves for eleven years, until he was finally hanged in l725. The idea that law is primarily private, that most offenses are offenses against specific individuals or families, and that punishment of the crime is primarily the business of the injured party seems to be common to many early systems of law and has been discussed at some length by Maine with special reference to the early history of Roman law. 

Medieval Iceland, however, presents institutions of private enforcement of law in a purer form than any other well-recorded society of which I am aware. Even early Roman law recognized the existence of crimes, offenses against society rather than against any individual, and dealt with them, in effect, by using the legislature as a special court. Under Anglo-Saxon law killing was an offense against the victim's family, his lord, and the lord of the place whose peace had been broken; wergeld was paid to the family, manbote to the crown, and fightwite to the respective lords. British thief-takers in the eighteenth century were motivated by a public reward of 40 [pounds sterling] per thief. 

All of these systems involved some combination of private and public enforcement. The Icelandic system developed without any central authority comparable to the Anglo-Saxon king; as a result, even where the Icelandic legal system recognized an essentially "public" offense, it dealt with it by giving some individual (in some cases chosen by lot from those affected) the right to pursue the case and collect the resulting fine, thus fitting it into an essentially private system.

Read on in the article.

Next time somebody asks you for a success story of anarchy, point him to this article. Iceland successfully existed in this state for 300 years and fared better (in societal sense) than many other countries. Life in Iceland may have been harder than in France, but let's not forget that it was basically a settlement on top of an icy rock.

(Yes, it's true that eventually the state of anarchy ended, and Iceland became subjugated to another king. But please point me to its statist contemporary that did not suffer the same fate.)

By the way, another example is medieval Ireland.

The point is not that Icelandic or Irish societies were Heaven on Earth. The point is that private law creation and enforcement are clearly feasible within the framework of human society. Ancient wheels were also not as good as modern wheels. And anyone who has read Shulchan Aruch HaRav knows what use Russian peasants had for rocks as late as the 18th century.

So, with modern technology, modern development of natural and social sciences, with modern levels of population, capital accumulation, experience, and private initiative, surely we can much better than the medieval Irish and Icelanders. There is no reason to believe that if they were able to accomplish something in the "simpler times" we can't do the same in the modern times.

Just like there was a short period of considerable cooling down of climate in the last few centuries, known as the Little Ice Age, I think that the 20th century will be known in the future as "The Little Dark Age". All the crying out for liberty that we hear nowadays is by no means a new phenomenon. If you read the writings of the Founding Fathers (and philosophers such as Thomas Paine, John Locke or Adam Smith), you will see a very clear and sharp understanding of the evils of the government and the necessity for private initiative in all areas.

Political spectrum, another view

I have posted before about the concept of Nolan chart, where political spectrum is represented in terms of two axes -- one representing political/social freedom and another representing economic freedom:



Today I saw this representation of the political spectrum, in terms of what services the government should be providing:


(click on the image to enlarge)

It shows that first of all, modern Conservatives and Liberals are not that different from each other, second, Ron Paul barely scratches the surface in pursuit of freedom (he is the minimally acceptable candidate), third, "voluntarism" sounds better when you're discussing your views at your (prospective) in-laws' dinner table than "anarchy" or "anarcho-capitalism".

The simple way to battle communists is with statistics. Examples of USSR and Sweden (before it went socialist vs. after, etc.). When people tell you that USSR was also totalitarian, ask them what that has to do with economics. Explain that you're talking here only about the effectiveness of the state providing services.

When battling people "below" communists (even all the way to minarchists), ask why the free markets cannot provide for all the services "below" the cut-off point (whatever it is for the individual) vs. "above". I.e., if free markets can provide food, why can't they provide education? Why not police? Why not law? (Use medieval Ireland and Jewish Law in the last 2000 years for examples of non-centralized legislature and arbitration in the hands of competing private legal authorities.)

When people quote Pirkei Avos to you, ask them, first, whether they believe that without doctors and hospitals many more people would be sick, and second, whether this means that medicine needs to be in the hands of a single centralized monopoly vs. a large number of competing service providers. Why can't the same apply to the government?

By the way, when people hear "voluntarism" and "voluntary exchange" they for some reason assume that this means no crime. I.e., if we are to have voluntary exchange of services, then we all need to be peaceful. But since we are not peaceful, we need the government to impose peace on the society.

But that argument simply states the need for protection and legislature services. Those are also services that can be provided and subscribed to voluntarily. For more information see Robert Murphy's article "But Wouldn't Warlords Take Over?"

Libertarianism and Torah

What is Torah’s position on anarchy, lack of a single compulsory political power in a given society? From Defending the Human Spirit: Jewish Law’s Vision for a Moral Society by Rabbi Dr. Warren Goldstein, the chief rabbi of South Africa:

Jewish law’s attachment to freedom is also manifest in its struggles with the concept of any political power. A king, by definition, limits his subjects’ freedom. The following Midrashic passage discusses the appointment of a king mentioned in the Book of Deutoronomy:

The Holy one Blessed is He said to Israel: “My children, I had intended that you be free from kingship … like a wild donkey in the desert that has no fear of man on it, so had I imagined that you should not have the fear of kingship on you…. But you did not want that.”

The passage reveals that the ideal is the untrammeled freedom of the wild donkey in the desert that answers to no man. It does not distinguish between a good king and a tyrannical one, which implies that a king, by definition, imposes limits on the freedom of his subjects. 

Jewish law has always been wary of political power and has therefore sought ways of controlling rather than enabling it. Thus, even though the Bible makes provision for the appointment of a king, no king was appointed for hundreds of years after the conquest of the Land of Israel. When eventually the people requested of the prophet Samuel to appoint a king, they were met with opposition both from Samuel and from G–d Himself:

All the elders of Israel then gathered together and came to Samuel, to Ramah. They said to gim: “Behold, you are old and your sons did not follow your ways. So now appoint for us a king to judge us, like all the nations.” It was wrong in Samuel’s eyes that they said: “Give us a king to judge us”, and Samuel prayed to G–d. G–d said to Samuel: “Listen to the voice of the people in all that they say to you, for it is not you whom they have rejected, but it Me Whom they have rejected from reigning over them. Like all their deed that they have done from the day I brought them up from Egypt until this day — they forsook Me and worshipped the gods of others.”

Many Biblical commentators and Jewish law experts have debated, from Talmudic times, the seeming inconsistency between the command in Deuteronomy: “You shall surely set over yourself a king” and the grudging acquiescence given by G–d to the people’s request in the Book of Samuel. And yet, whatever explanation is given, the apparent contradiction reflects the fact that the political authority of a king presents problems for and creates tension within Jewish law. This tension means that Jewish law is naturally drawn to a constitutionalist model of emphasizing the limitations of state power, rather than exercise of it. Because it is uncomfortable with the authority of a king, the Jewish law seeks ways to limit his power.

Even the command to appoint the king given in Deuteronomy is far from uncontroversial. It is phrased in what is for the Bible is a relatively unconventional style in that it makes the appointment of a king dependent on the people’s declaration: “When you come to the land… and you will say, ‘I will set a king over myself.’” Biblical commandment are usually just that — commandments — and do not depend on the support of the people for their validity. Furthermore, the Bible, in uncharacteristic fashion, seems to be motivating the appointment of a king by referring to the practices of “all the nations”. The strange phraseology leads Rabbi Nehorai, one of the scholars (Amora’im) mentioned in the Talmud to conclude that the appointment of a king is not mandatory but rather dependent on the wishes of the people. It is a concession to the people’s weekend of needing a political figure “like all the nations”.

Update: for Chassidic approach to the mitzva of choosing a king, see Tzemach Tzedek’s Derech Mitzvosecho, “Mitzvas Minui Melech” (it’s one of the chapters translated in the Sichot in English edition). It explains why — from the spiritual perspective — Shmuel haNovi did not want Jews to have a king, and what the advantage of Melech HaMoshiach will be over the previous kings.

Medieval Ireland: an example of a libertarian legal system

If you’re lucky to be Irish, you’re lucky enough.

— An Irish proverb

A question is often asked: in an anarcho-libertarian society, how would the courts and legislation function? Murray Rothbard addresses this and many other questions in his book, For a New Liberty. But here I will only quote an example of the libertarianism in Irish society that he provides. It is very interesting to me from both political and historical point of view, as well as because I like Irish culture, music, language (I was a member of Gaelic club in college) and history.

* * *

The most remarkable historical example of a society of libertarian law and courts, however, has been neglected by historians until very recently. And this was also a society where not only the courts and the law were largely libertarian, but where they operated within a purely state-less and libertarian society. This was ancient Ireland — an Ireland which persisted in this libertarian path for roughly a thousand years until its brutal conquest by England in the seventeenth century. And, in contrast to many similarly functioning primitive tribes (such as the Ibos in West Africa, and many European tribes), preconquest Ireland was not in any sense a "primitive" society: it was a highly complex society that was, for centuries, the most advanced, most scholarly, and most civilized in all of Western Europe.
        For a thousand years, then, ancient Celtic Ireland had no State or anything like it. As the leading authority on ancient Irish law has written: "There was no legislature, no bailiffs, no police, no public enforcement of justice . . . . There was no trace of State-administered justice."⁹
        How then was justice secured? The basic political unit of ancient Ireland was the tuath. All "freemen" who owned land, all professionals, and all craftsmen, were entitled to become members of a tuath. Each tuath's members formed an annual assembly which decided all common policies, declared war or peace on other tuatha, and elected or deposed their "kings." An important point is that, in contrast to primitive tribes, no one was stuck or bound to a given tuath, either because of kinship or of geographical location. Individual members were free to, and often did, secede from a tuath and join a competing tuath. Often, two or more tuatha decided to merge into a single, more efficient unit. As Professor Peden states, "the tuath is thus a body of persons voluntarily united for socially beneficial purposes and the sum total of the landed properties of its members constituted its territorial dimension."¹⁰ In short, they did not have the modern State with its claim to sovereignty over a given (usually expanding) territorial area, divorced from the landed property rights of its subjects; on the contrary, tuatha were voluntary associations [p. 232] which only comprised the landed properties of its voluntary members. Historically, about 80 to 100 tuatha coexisted at any time throughout Ireland.
        But what of the elected "king"? Did he constitute a form of State ruler? Chiefly, the king functioned as a religions high priest, presiding over the worship rites of the tuath, which functioned as a voluntary religious, as well as a social and political, organization. As in pagan, pre-Christian, priesthoods, the kingly function was hereditary, this practice carrying over to Christian times. The king was elected by the tuath from within a royal kin-group (the derbfine), which carried the hereditary priestly function. Politically, however, the king had strictly limited functions: he was the military leader of the tuath, and he presided over the tuath assemblies. But he could only conduct war or peace negotiations as agent of the assemblies; and he was in no sense sovereign and had no rights of administering justice over tuath members. He could not legislate, and when he himself was party to a lawsuit, he had to submit his case to an independent judicial arbiter.
        Again, how, then, was law developed and justice maintained? In the first place, the law itself was based on a body of ancient and immemorial custom, passed down as oral and then written tradition through a class of professional jurists called the brehons. The brehons were in no sense public, or governmental, officials; they were simply selected by parties to disputes on the basis of their reputations for wisdom, knowledge of the customary law, and the integrity of their decisions. As Professor Peden states:

. . . the professional jurists were consulted by parties to disputes for advice as to what the law was in particular cases, and these same men often acted as arbitrators between suitors. They remained at all times private persons, not public officials; their functioning depended upon their knowledge of the law and the integrity of their judicial reputations.¹¹

Furthermore, the brehons had no connection whatsoever with the individual tuatha or with their kings. They were completely private, national in scope, and were used by disputants throughout Ireland. Moreover, and this is a vital point, in contrast to the system of private Roman lawyers, the brehon was all there was; there were no other judges, no "public" judges of any kind, in ancient Ireland.
         It was the brehons who were schooled in the law, and who added glosses and applications to the law to fit changing conditions. Furthermore, [p. 233] there was no monopoly, in any sense, of the brehon jurists; instead, several competing schools of jurisprudence existed and competed for the custom of the Irish people.
How were the decisions of the brehons enforced? Through an elaborate, voluntarily developed system of "insurance," or sureties. Men were linked together by a variety of surety relationships by which they guaranteed one another for the righting of wrongs, and for the enforcement of justice and the decisions of the brehons. In short, the brehons themselves were not involved in the enforcement of decisions, which rested again with private individuals linked through sureties. There were various types of surety. For example, the surety would guarantee with his own property the payment of a debt, and then join the plaintiff in enforcing a debt judgment if the debtor refused to pay. In that case, the debtor would have to pay double damages: one to the original creditor, and another as compensation to his surety.
        And this system applied to all offences, aggressions and assaults as well as commercial contracts; in short, it applied to all cases of what we would call "civil" and "criminal" law. All criminals were considered to be "debtors" who owed restitution and compensation to their victims, who thus became their "creditors." The victim would gather his sureties around him and proceed to apprehend the criminal or to proclaim his suit publicly and demand that the defendant submit to adjudication of their dispute with the brehons. The criminal might then send his own sureties to negotiate a settlement or agree to submit the dispute to the brehons. If he did not do so, he was considered an "outlaw" by the entire community; he could no longer enforce any claim of his own in the courts, and he was treated to the opprobrium of the entire community.¹²
        There were occasional "wars," to be sure, in the thousand years of Celtic Ireland, but they were minor brawls, negligible compared to the devastating wars that racked the rest of Europe. As Professor Peden points out, "without the coercive apparatus of the State which can through taxation and conscription mobilize large amounts of arms and manpower, the Irish were unable to sustain any large scale military force in the field for any length of time. Irish wars . . . were pitiful brawls and cattle raids by European standards."¹³ [p. 234]

        Thus, we have indicated that it is perfectly possible, in theory and historically, to have efficient and courteous police, competent and learned judges, and a body of systematic and socially accepted law — and none of these things being furnished by a coercive government. Government — claiming a compulsory monopoly of protection over a geographical area, and extracting its revenues by force — can be separated from the entire field of protection. Government is no more necessary for providing vital protection service than it is necessary for providing anything else. And we have not stressed a crucial fact about government: that its compulsory monopoly over the weapons of coercion has led it, over the centuries, to infinitely more butcheries and infinitely greater tyranny and oppression than any decentralized, private agencies could possibly have done. If we look at the black record of mass murder, exploitation, and tyranny levied on society by governments over the ages, we need not be loath to abandon the Leviathan State and . . . try freedom.

[ad kan]

Support for libertarian anarchy

In the last post, I said that I don’t agree with libertarian anarchists who believe centralized “state” government is not necessary because I don’t completely understand their ideas or how they could work in reality.


(libertarian-anarchist view of political spectrum)

To be fair, anarchists are always misrepresented in the society, because when people hear anarchy, they think of left, revolutionary anarchists (or Attila the Hun). Libertarian anarchy (or rightist anarchy — although the name is obviously a misnomer and an oxymoron) looks at the government as a monopoly in two services: law and protection. Consequently, anarchists believe, central government is unnecessary, as any other monopoly. Just as any other services, law and protection do not require a central authority to be provided. A number of competing companies can provide telephone, Internet, rodent control, or lawn-mowing services, and the same is true regarding law and protection.

An immediate reaction of minirchists (libertarians believing in necessity of minimal government) like me is to say that the reason these services can be provided in the context of free market is because the latter is allowed to exist by the structure of the society — law and protection of people’s rights. The only way I can compete freely with a large company (and thus benefit the consumers the most) is if the large company doesn’t higher someone to “bust my cap” — and this happens only when the law (protecting my equal rights) is imposed by a central government, yes, sometimes in a form of aggressive protection. The good thing about democracy is that people control it and decide through this control (more or less) which people are the best for imposing this protection. Furthermore, the government is limited (in an ideal world, much more than today) by the Constitution, which prevents it from grabbing more power and destroying free market (obviously not the case today).

An anarchists would argue that the above is not true. Or at least the main assumption of it is not true — that law and protection must be provided by a centralized monopoly. Just like in any service, anarchists repeat, is successfully provided by free market, which regulates its quality and effectiveness, law and protection too can successfully be provided by free market. And no, this would not lead to chaos. Free, competing organizations dedicated to providing the services of law and protection would not engage in constant warfare but would come to a stable equilibrium — simply because such would be a more profitable situation for all parties involved. Just like today, sometimes force would have to be used, but much less frequently than today and more efficiently (and lawfully).

Furthermore, a democratic government is only as good, as honest, and as democratic as the people it serves. It is necessary for some ideas to be shared among the people in order for democracy to be successful (just compare democracies in Russia and the US). If democracy can be sustained by people that believe in certain ideals and does not turn into chaos (as English king George III believed would happen to the “Colonies”) or totalitarianism (as happened in France after its democratic revolution), the same is true for anarchy (as anarchists argue): as long as people living in an anarchist society believe in a set of ideas, anarchy will turn to neither chaos nor dictatorship.


(libertarian-anarchist view of stateless yet lawful society)

Two essays by Robert Murphy defend this argument in an easy-to-read, cohesive form.

Without question, the legal system is the one facet of society that supposedly requires State provision. Even such champions of laissez-faire as Milton Friedman and Ludwig von Mises believed a government must exist to protect private property and define the “rules of the game”.

However, their arguments focused on the necessity of law itself. They simply assumed that the market is incapable of defining and protecting property rights. They were wrong. In this essay, I argue that the elimination of the State will not
lead to lawless chaos. Voluntary institutions will emerge to effectively and peacefully resolve the disputes arising in everyday life. Not only will market law be more efficient, it will also be more equitable, than the government alternative.

Just as right-wing hawks embrace the Orwellian notion that War is Peace, left-wing egalitarians believe that Slavery is Freedom. The hawks wage endless war to end war, while the social democrats engage in massive theft — or “taxation” as they call it — to eliminate crime. It is high time to abandon such monstrous paradoxes. It took no king to produce language, money, or science, and it takes no government to produce a just legal system.

Even if you don’t completely agree with the described ideas (like me, who is a right-wing hawk, despite being libertarian in almost all other aspects), the two papers are still an interesting read. More to follow.