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.

Real boundaries

There are two major kinds of maps that people tend to use: geographic and political. The first kind represents the nature: landscape features of the land. The second presumably represent people living on the land.

But does it? It surely represents the boundaries of political authority that is imposed from the top, but does it say anything meaningful about the people themselves (besides the fact that in this place people tolerate the fact that they were forced to choose between Bob and Bill, and in that place they tolerate the fact that they were forced to choose between Joe and Jim)?

This new approach to mapping human activity challenges this notion. Briefly, the authors of the approach propose to draw boundaries based on "how far a buck travels": the extent of people's economic activity. The other approach is to try clustering the exchanges of money for products and services. I tend to buy a lot of my stuff locally. I also tend to order some things from a few online stores centered in certain locations. So, I tend to spend my money in the area where I live (with reduced probability of spending with the distance) and in a few "hubs".

Another approach is to try mapping communication: cell phone calls between places. Or employment: how far do people travel to work. Or personal interaction. Etc.

Using one of these approaches, US map becomes this:



Or this:



(You can read more in the report on the methodology of creating these maps.)

Notice how rarely the political boundaries correspond with the "real" boundaries of human interaction. (It seems that in most cases that they do, there is also a physical boundary like a river or a mountain range that obviously serves as real boundary for human interaction.)

On the other hand, the political map of Great Britain, a much older country, tends to correlate somewhat better with the country's political map:



The map actually looks somewhat similar to the Anglo-Saxon and Celtic kingdoms that existed before the Danish invasion in the 9th century CE:



I wonder if these patterns correlate with geographic features or just with traditional established economic centers.

But another, much stronger, point that immediately jumps to one's attention is that thinking of communities in terms of little bounded areas with well-established lines is silly. At best, the lines are very fuzzy. But it's also the case that the communication between people, especially in our times, is so fluid, dynamic and far-ranging that thinking of nations and communities in terms of boundaries seems unjustified.

Much better to think of them in terms of connections that unite people rather than borders that divide them:

Intellectual property and scarcity, part 2

(If you're too bored to read the whole post, skip to the summary at the bottom.)

In the first part I have briefly outlined Stephan Kinsella's argument against intellectual property (IP) that is very popular in libertarian circles. To recap, Kinsella states that property rights exist to resolve conflicts over scarce resources. Because information is not scarce (my use of an idea does not conflict with/prevent your use of the same idea), property rights do not apply to information; in fact, they create a conflict rather than resolve one.

I said that I would outline possible objections to Kinsella's approach in the next post. It will probably take at least two posts. First, let's list the two possible metaphysical theories of information:

1. Information is a bunch of platonic objects
2. Information is patterns of matter isomorphic to other patterns of matter (I will explain below what this means)

A platonic object is a hypothetical ideal object ("ideal" as in "idea", not in "perfect") existing either in a parallel realm or as a part of our reality. Whenever we access some information through a piece of matter, we are actually observing that object, either in its "pure" form, or somehow distorted. So, if a few mushrooms are arranged in a circle, there is a platonic circle which somehow communicates with the matter of the mushroom resulting in their arrangement in an approximation of the said circle.

Likewise, the idea of Middle Earth is a platonic object (either created or discovered by J.R.R. Tolkien). Every time someone reads The Lord of the Rings, he accesses the Middle Earth platonic object. Likewise if he writes a novel set in the Middle Earth.

The assumption that information is non-scarce (that Kinsella and other libertarians make in their anti-IP analyses) alludes to the concept of platonic objects. Each such platonic object is non-scarce in the sense that both I and Tolkien can use Middle Earth to write a separate book (after Middle Earth has been created/discovered). Supporters of IP claim that Middle Earth can be owned by Tolkien estate. Critics of IP claim that Middle Earth cannot be owned by anyone, since nobody may exclude someone else from accessing Middle Earth, precisely because it is a non-scarce object, and one person's use of it does not conflict with another person's use. In other words, a rule that would allow such an exclusion would be both immoral and illegal in the sense that it would go against the moral/legal purpose of property rights: to prevent conflicts over scarce resources.

* * *

Here is the first part of my critique:

Kinsella's argument is based on the acceptance of the doctrine of platonic objects. But why should one do that? Why not assume the alternative hypothesis: that information is not platonic objects but merely patterns in matter not separable from matter itself? Or, if you wish, information is a series of patterns isomorphic to another series of patterns. "Isomorphic" here means "corresponding" in such a way that someone can use set of patterns A to recreate or analyze set of patterns B. For example, sequence of nucleotides on DNA is isomorphic to a sequence of amino-acids in a protein. Note that this doesn't have anything to do with human brain; cells use DNA code to create proteins all the time.

This argument is much more straightforward in that it does not require assumption of religious-like concepts like Platonic objects. If someone believes in platonic objects, let him bring forth evidence of their existence. (I will deal with a religious assumption that platonic objects exist in the next post.) Likewise, if he believes that we live in a Matrix, and all information we have is owned by some Matrix machine, let him also bring forth that evidence. Prima facie, it seems that information is nothing but patterns of matter that can either be recognized by our brains (by creating a set of isomorphic patterns in them) or not.

(The burden-of-proof argument is significant, by the way. If someone believes that platonic objects exist, he must formulate exactly what they are and how he knows about them. It may still turn out, from his evidence, that they cannot be property. For instance, if platonic objects exist in a non-material world, created by G-d, then who says they are our property? They are G-d's property. To be sure, so are all the objects in the material world, but G-d granted people rights of ownership because of the scarce/rivalrous nature of the objects. My point is: we can't willy-nilly state some theory without looking at its context.)

* * *

Significantly, this means that information is scarce. Only one person can read a given piece of information in a given book. Or, at least, it is as scarce as the carrier of the given instance of information. And someone certainly can own information -- by owning its carrier. If I bought a book from you, I now own the ideas in the book: the specific patterns of ink that create isomorphic patterns in my brain. You don't own them, because you don't own the book (since I bought it from you).

Can I use these patterns to create new patterns? (Either by copying the book or by using its fantasy-land setting to write my own book.) Why not? I am using my property the whole time. The book and information within it is my property. The new book that I am writing is also my property: I am using my paper and ink (presumably). I can sell it to anyone I want, since it's my property.

So, this analysis still argues against IP. And to me it seems like a much more straightforward approach that does not require the mental gymnastics of scarcity and justification for property rights. (Which I will deal with in the next post.) It's not clear to me why Kinsella, who is an atheist (and writing mostly for an atheist crowd) does not use it.

* * *

One can probably also criticize the platonic model as somewhat vague and incoherent. Imagine I re-write The Hobbit, replacing each instance of "Bilbo" with "Shmilbo". Is my Shmobbit the same ideal object as Tolkien's Hobbit? What if I write a novel (as has been done) from the point of view of Orcs: in which the latter and Sauron are actually misunderstood fighters for freedom against the oppression of the West? What if I write a novel whose fantasy-land setting has Misty Mountains, but nothing else from the Middle Earth? How about the Misty Mountains and a forest called Lothlórien? What if in my novel, the plot is very similar to Tolkien's (someone goes somewhere to destroy some object of power), but doesn't use the same details?

You can perform this kind of mental experiments to see that the concept of platonic objects is too vague to be used successfully as a set of rules for allocation of property. But this analysis also demonstrates that even if the universe of platonic objects existed, its anatomy would be so vague and alien to our mind that it would be difficult to determine who owns what and to what extent. It would be like owning land whose borders sometimes expand and sometimes contract.

In the next post I will try to analyze what would happen if we were to overcome the problems of figuring out what exactly platonic projects are and if we had some source (e.g., a religious revelation) that told us that all information is actually a bunch of platonic objects.

* * *

To summarize:

In the first version of critique of Kinsella's anti-IP argument, I am stating that a much easier argument would be to ask: what exactly are we owning? What is that object? Where is it?

If we discover that there is no such thing as platonic ideal objects (or their existence is subject to burden of proof), then we have to identify information with its material carriers. I cannot own contents of something without owning also its carrier. The contents of something are merely the properties of that thing.

The fact that my key fits my lock is my key's property. The unique pattern of the key's molecules is mine as long as I own the key, because it is the key. (Sure enough, another pattern on another key is that key and belong to whomever owns the key. Even if it is "the same" pattern, in the sense that it can fit the same lock or can be recognized as the same by a human brain.)

Some people may be against this attempt of "isolating" where and what objects are. But I disagree. Perhaps as a scientist, I find it important to understand the nature and ontology of some phenomenon before we deal with it.

The same goes, for example, for numbers, rights, values, tastes, truths, etc. We must identify what they are exactly before we are to deal with them.

Intellectual property and scarcity, part 1

(who owns Middle Earth?)

I have recently thought about Stephan Kinsella's core argument against intellectual property (IP) and whether it has a hole in it. I think it might not, if certain assumptions are made, but I will try to discuss my approach to the issue. This will also be a useful review of why intellectual property makes no sense.

First, let me outline Kinsella's argument:

Nature, then, contains things that are economically scarce. My use of such a thing conflicts with (excludes) your use of it, and vice versa. The function of property rights is to prevent interpersonal conflict over scarce resources, by allocating exclusive ownership of resources to specified individuals (owners). 

(Against Intellectual Property, p. 20) 

You can read the quoted essay for more details of the argument. Here is my understanding of what Kinsella is saying:

1. Some resources in nature are scarce: they can only be used by one person at a time.

2. Sometimes two or more people will want to use the same resource and will not give way to each other. This is called "conflict over scarce resources". (The conflict can be actual, with two people arguing, or theoretical: for instance, if I see a resource and want to know whether I have a right to take it.)

3. Property rights exist (as an aspect of both law and morality) to resolve conflicts over scarce resources peacefully. NOTE: this means peacefully determining whom the resource should "belong" to. Enforcement of that decision can be violent or not.

The last point is important. Assume someone disagrees to honor a certain determination of property rights. It seems that the rights-holder has, well, a right to defend his property. With force if necessary. (Or threat of ostracism. Or personal authority.) Point is: it's moral and legal for the owner to exclude others from use of his property.

4. Resources that are not scarce don't fall under above justification for property rights. In other words: if my use of X does not conflict with your use of X, then it doesn't seem like there is any conflict. So, what exactly are property rights to X supposed to resolve? What is the justification for you to prevent me from accessing X if my doing so doesn't prevent you from accessing it?

Now, let's look at what information is. Information is a non-scarce resource. If you describe a new method for getting rid of garden gnomes or a new fantasy land, and I gain access to that information (e.g., by buying your book in a store), why should you prevent me from using that information whichever way I want with my property? (E.g., printing out instructions in my book and selling them or writing a new novel set in the same fantasy land setting.) It's not like I am preventing you from using the said information for your purposes.

One quick objection is that my activity can lure some of your potential customers away. But: therefore what? Do you own your customers? Do you own their money before they gave it to you? Certainly not. Is it a loss to the original author? Well, it is in the same sense that the fact that I cooked tonight and didn't go out was a loss to whatever restaurant I would eat out at. (And if I ate at a pizza place, that decision resulted in a loss to the deli next door.) It's a loss from the estimated potential future profits. But potential future profits were not in your possession — that's why they were "potential" and "future". So, I didn't steal anything that you actually owned.

What IP laws do, therefore, is not protect from theft of actual property. Quite the contrary: they themselves create theft (if we define "theft" more generally as "violation of property rights"; such as "borrowing without permission is theft"). If I am not allowed to use my pen, ink, and paper to write a novel in a fantasy world invented by you (or, for that matter, to distribute the book I bought from you), my property rights to my pen, ink, paper, printer, hard drive, etc., are being violated.


That is the general outline of the anti-IP argument prevalent in the libertarian circles. I will discuss my slight objection — and the potential answer to it — in the next post.

The case for open borders by Michael Huemer

Michael Huemer, a libertarian and intuitionist-moralist philosopher (who's been receiving some attention both on this blog and on Cato Unbound website recently) talks about ethics of open borders and unrestricted immigration:



Interestingly, Dr. Huemer discusses the concept of prima facie vs. absolute right to travel.

Should Orthodox Jews demand gay marriage to be illegal?

The author of the Emes ve-Emunah blog laments about Western society abandoning Bible-based ethics and Bible-believing people supporting laws going against the Bible-derived ethics. He uses gay marriage as an example.

You can read the post to see his argument and to judge whether you agree or not.

Here is my comment to the post (it uses my approach to the issue which I have written about multiple times, so don't expect any novel thoughts here):



Your assumption is that laws should be based on societal ethics. But this is erroneous. The purpose of law is to create a society, not to create a particular ethical version of a society. There has to be a basic set of prohibitions that maintain the society: prohibition from murder, stealing, rape, and fraud. Without those, there is no society.

After that, people are free to create private communities in which they can implement their personal ethical standards. The communities don't have to be geographically segregated, they can coexist, just like in modern American cities, Catholics, Protestants, Muslim, Hindus, atheists, and, lehavdil, Jews, coexist and co-operate (trade with each other and even work together).

There is absolutely no need for a society to determine what "marriage is" at all. This is not the society's concern. Jews can define marriage one way; atheists can define it another.

Anyway, according to Judaism, there is no concept of marriage between a Jew and a non-Jew. Therefore what? Would you want to make that into a law? Before our ancestors came to US, they have lived in the lands where people thought it ok to impose their views of what is ethical on Jews. And that continues to be so: in California, people attempted to ban circumcision. In Germany (in the same country where being a Nazi is illegal), it was actually banned. (So, you may think that banning views that you dislike is a good idea, but be prepared for the majority to ban your lifestyle if it doesn't like it.) In Scandinavian countries, shechita is banned on animal cruelty grounds. In Sweden, not sending your kid to a public school is forbidden. And so on. Supporting ethical paternalism doesn't seem to be in our favor...

If your ethical, moral, and religious principles prohibit you from tolerating people in a society who behave according to ethical standards foreign to yours (e.g., those who live gay lifestyle, or those who worship what you consider avoida zara), to the point that you'd prohibit those lifestyles through a use of force (which is what law is), then start by not doing any kind of business with them or those that do business with them. Even if you live in Israel, I think you will find this position impossible. We have to trade with nochrim (both in our country and abroad) to survive. We have to rely on their technology and services that they provide. Sometimes we even have to work for them. We have, therefore, to co-exist with them.

If we have to co-exist with them, we cannot find it unethical for the laws of our society not to prohibit their lifestyles — unless, of course, aspects of those lifestyles endanger the concept of a society. (So, our laws can tolerate them worshiping gods but not sacrificing children to them. Because once you make murder legal, there is no society or law to speak of. It all becomes "might makes right".)

The whole issue of gay marriage is completely moot. There should be no government-approved marriage. I don't want some stinking bureaucrat to "bless" my marriage. Nor do I want him to bless anyone's marriage on my behalf. In fact, I don't want anyone to do anything on my behalf (including Obama dronning people in some far-away lands), unless I explicitly contracted him to do something.

Deontological vs. consequentialist ethics

Deontological = rule-based. Consequentialist = consequence-oriented. Or, deontological = focused on the means, whatever the end; consequentialist = focused on the end, whatever the means.

An absurd example of deontological ethics is making it a rule never to lie and not lying to a Nazi asking you whether you're hiding any Jews. The result (people killed) is intuitively recognized as horrific, but you have adhered to the rule you committed yourself to. The point of this ad absurdum argument is that not caring about the consequences, as long as you adhere to the rules, is sometimes ridiculous. Or, in Latin, fiat justitia ruat caelum (“let the justice be done though heavens may fall").

One can also think, of course, of consequentialist ad absurdums. For instance, one achieves some worthy goal through lying or bullying others: you invest your client's money into something against his wishes, and that earns profit for him. Yes, you have achieved a positive result, but you have done so through an immoral act. Or, for instance, if you see some guy who owns some land that he doesn't use or uses badly. You confiscate the land from him, pay him very well for it, and put the land to a much better use, enriching the community. The guy was paid more than he would ever earn, and everyone benefited so much, but you have violated his property rights.

So, it would seem that it's important to take into account both consequentialist and deontological approaches.

One way to reconcile them is to treat deontological approach as producing long-term consequences with certain high but not 100% probability. Deontological rules can be framed in terms of slippery slopes. On the other hand, consequentialist approach worries about short-term consequences that have very high, near-100% probabilities (such as someone drowning). Usually it's more responsible to worry about long-term over short-term consequences, unless short-term consequences are totally terrible (and possibly unforeseen or an exception/emergency). So, this is the way to frame the balance between them in consequentialist terms (long-term vs. short-term consequences). Deontological framing would be to make a rule: e.g., "generally speaking, we don't lie, unless lying can save someone's life." Or: "generally speaking, we don't break into people's houses, unless we need to save someone's life from a fire." Etc.

Things get turned on their heads when allowance to break the long-term rules for short-term emergencies gets confused for not caring about the long-term rules. It's like a cousin who asked to sleep on the couch for the night and stayed for a month. I.e., the time frame of both the rule and the consequences gets confused. For instance, "we can confiscate someone's house to pay for someone else's cancer treatment". (Note, also, how the usual criticism of libertarian arguments involves life-boat situations.)

Morality and law: an expanded version

Someone on Reddit replied to what I wrote in the previous post and asked, basically: "Well, but if you believe something is moral, you believe it ought to be done. I mean, that’s the definition of something moral. So, how can you say that something’s ought to be done but ought not to be a law? Isn’t that a contradiction?"

I thought it was a good point. I responded the following:

I struggle with this as someone with a very developed ethical system (I am an Orthodox Jew) but also someone with strong political views.

I think it is exactly like I wrote: law is a contract. A social contract. Not between you and the government (that's nonsense), but between you and other people. Law allows you guys to coexist together.

(A slight tangent: You probably think of law as "something that the government, elected by We the People, said", but that's not the case, and it has not been the case throughout human history. Kings were not in charge of creating laws. People were (not democratically, but through customs or favoring private arbitrators who resolved disputes). Law is a natural way for people to resolve conflicts peacefully, rather than through violence. It is all about the civilization. You can cut out the government from the model completely, and you'd still have the need for law and have some way that people would find to create the law (as they have for millennia). Now that we’ve established that, let’s go back to answering the question:)

Suppose one's moral views tell him that all males must wear little hats on their heads. In his opinion, that's the right thing to do. Should he urge people to make that into a law?

Well, imagine he has very good martial arts skills and a lot of friends with sticks and guns. Should he go from house to house and force people to put on little hats? First, he has to decide whether violence or threats of violence fit into his moral views (he might think wearing little hats is a moral imperative, but also abhor violence, for instance). But even if he decides that it fits, notice that what he is doing is simply bullying. He did not create a law, because wearing little hats has nothing to do with conflict resolution. He just decided: screw the law, I am going back to the jungle and might makes right, because I just care about the little hats this much. Which, I suppose, is his choice.

Now, if he and his little gang are called "government" nothing changes. If 51% of the people in the neighborhood voted for him and his friends, nothing changes. He may think he is doing a morally upright thing, but it's still not the law. It's an instance of bullying among otherwise possibly peaceful society.

So, why should someone choose law over moralistic bullying? Well, as I said, for starters because maybe he thinks bullying is immoral (whether done by him or "the government"). Or because he values peace.

Throughout history, even the societies that felt that they knew what's right (as David Mitchell puts it in one of his Youtube videos, they felt like they were certain as to what the hell was going on and, in fact, which specific hell was going on) at some point found it beneficial to stop fighting and recognize that it's more important just to survive and not kill each other. Emergence of the classical liberal values (as opposed to neo-liberalism, which is basically Marxism) in the Western culture was the same idea but applied within the society: coexisting with others peacefully is as much a value as whatever moral values one has.

Finally, there is something to be said for upholding the concept of law over "whatever we happen to think is right". It's a long-term principle. Today we may think it's beneficial to forbid people to grow as much wheat on their farms as the want. Or we may think it's a good thing to outlaw Communist party. But by supporting whatever (imagined and usually wrongly estimated) short-term benefit, we are destroying the concept of law: that it is wrong to bully people and that interaction between people in the society must be peaceful, by definition of the society.

And the next thing we know, well, pick your favorite 20th-century atrocity. It is always a direct result of that slippery slope that starts with the idea "I know what's best for the society, so let's force everyone to do it".
This is basically the deontological argument. The principled one.

[Before you read the rest, note that I was responding to a moral utilitarian.]

The economic/consequentialist one is: you don't know what is best for the society. Nobody knows. Just like you don't know what the best next model of the smart phone should be. And nobody knows. A bunch of people have good ideas, but you have to let them experiment, compete with each other, then send their phones to Best Buy, and let the public choose. And the public will choose more than one correct answer (some more correct than others), and those answers must be allowed to co-exist.

Every single central-planning strategy in anything, from cars to roads to economics to warfare to politics, is horrible compared to the strategy of letting people do whatever they want* and comparing the results.

*The obvious caveat is that there are things we cannot let people do. Those things that would tear the fabric of the society. I.e., violence and bullying. Murder, theft, robbery, rape, fraud. Those should be illegal. But everything else — you may think you're the new Oracle of Delphi and the Universe has shared its secrets with you how to build the perfect society, but you're wrong. Your little Sim City will not run as smoothly as it will if left to its own devices.

As I said, this is the pragmatic/economic argument. Very different from my original "principled"/legal/contractarian argument. But I think the two go hand-in-hand.

Conflict resolution in a free society

A friend on Facebook asked me the following question:

Imagine it's 12 am. Your neighbor is playing music loudly. As a libertarian, what do you do?

The context of the question is: what would happen in this situation in a libertarian society?

This is a perfect example of conflict resolution. Today it is done through legislature, courts, and police. How would conflict resolution happen in a free society? The answer is: the same way as hunger resolution (eating) would happen: through private service providers. There are three services that are done by the three mentioned organizations:

1. legislation (creation of laws that specify when, for example, it is no longer acceptable to disturb your neighbors with music),
2. arbitration (if I sue you for disturbing my peace with music, we can go to court),
3. law enforcement (if it has been determined — by either courts or legislative bodies — that you're "in the wrong" for playing music so late and yet you continue doing so, law enforcement agency will come and force you to comply).

Today, the government has a monopoly on these three services (which it enforces by threats of violence). In free society, these services would be provided by free, independent organizations competing with each other (for customers) on the market:

1. Legislation.

Under the theory of natural rights, the function of legislation is not to create order or to express the ruling prince's desire, but to create boundaries between people's rights. Sure, that also creates order, but there is presumably order in a concentration camp, but without human rights being respected.

Different theories of rights can exist "on the market", each espoused by different legal authorities: people that express their opinions about what the boundaries between rights should be. This is similar to how today, different "experts" express their opinions on how words should be spelled, or where a comma should be in a sentence. Note that these people get their ideas from observing the on-going customs (if an expert on spelling would tell us that the correct way to spell dog is doug, most people wouldn't accept his opinion just because he is an expert) and from logic. They may also have some considerations about efficiency and function of grammar. (For instance, I have for years been advocating placing punctuation outside of quotation marks and surrounding em-dashes with spaces. Of course, I am not a renowned expert in grammar, so nobody listens to me.)

If this reminds you of something, it should. This is exactly how Halacha has been paskened for the last two millenia: through independent private authorities. Nowadays, such authorities may even live within the same locale. For example, on a block in New York, you may find a Litvish, a Sephardic, or a Chassidic authority in Halacha — and sometimes all three.

In terms of the question about playing music at 12 am, three approaches may exist:

a) Absolute rights: if your music invades my space, it is the same as your body or your bullets invading my space. You are clearly violating my rights. Therefore, if I ask you to stop playing music (even in the middle of the day), you have to comply.

b) Homesteading rights: what was the situation like when you moved into your house? If the area was quiet at night (and then my music-playing neighbor moved in), then I have homesteaded the quiet environment of my house. I have rights to the quiet. When my neighbor moves in and starts playing music, he violates my rights. On the other hand, if he "was there first", then he is not.

c) Local custom: what is usually the accepted practice by the people of the community? If it is a community of musicians, who play at random times at night, then perhaps my neighbor is not violating my rights. (This is similar to the previous point, but not exactly the same.)

Different experts may adhere to some or all of the these (and maybe some other) rules for legislature. Different arbitration authorities may or may not consider these authorities' opinions. Thus, the markets will select for these authorities' (and their opinions') popularity. (They may get paid for publishing their legislative theories and teaching. They may also get hired as experts to testify during arbitration.)

2. Arbitration.

When my neighbor plays music loudly, first I will ask him to stop. If her refuses, I will call my "protection company" (a company that provides protection service and insurance for me for a fee). They will contact my neighbor's protection company, and the two companies will go to an arbitrator.

Note that the two companies can also resolve the conflict through violence: the way some mafia may do. But on a free market in a society where people favor peace (as in North America, for example), companies that resolve conflicts through violence may quickly lose clients. Thus, it will be in economic interest for the two companies to resolve the conflict peacefully. They may do so between themselves, or they may do so through a private arbitrator. The arbitrators will also be selected by the market for the fairness of their decisions (their cases will be published), and the public — including the protection companies — will be able to pick the arbitrators who are well known for their judgement skills (and for the legislators whom they bring in as experts or whose opinions they follow).

Note that multiple legislative and arbitration strategies may co-exist on the market. Some protection companies may be known for seeking arbitrators who follow strategy X. When signing up for those companies' services, the public will know this and can make a decision (the same way the public decides today whether to buy a computer that has Apple OS or Windows installed on it).

3. Law enforcement.

After the decision has been made by the arbitration company, a number of things to enforce it may happen. First, my neighbor may be informed about the decision. Let's say he refuses to abide. In that case, either I or my protection agency may have power to enforce the decision or hire an enforcement agency: a bunch of guys who can come in and use threat of violence to force the guy to stop playing music (or force him to pay a fee).

This sounds rather violent, but remember what happens today: if I call the police, they will come and at first talk to my neighbor. If he refuses to stop, they will use threat of violence (or actual violence) to restrain him, bring him to some holding facility, where he may end up receiving a fine or even be imprisoned long-term. Except, remember, there is no competition. We have only one kind of police, only one kind of prisons, and only one kind of judges. If the police are exceptionally brutal while arresting my neighbor, I don't have a choice to use another law enforcement agency.

In a free society, there would be competition: agencies that enforce the laws with unnecessary violence will lose customers (and so will the protection agencies that hire them). They may even get sued themselves (something that cannot happen today with the police, or happens with low efficiency, since the government is usually on their side; it's almost impossible today for a police officer to lose a job and to suffer some economic penalty; at worst, he may be suspended for some short time).

This is basically the short answer. There are many nuances to consider, and the picture of all these possible interactions is a little fuzzy, but the nature of all business interactions is somewhat fuzzy. Different entities on the market always compete to provide different way to satisfy the customers' needs for a certain service (or a number of services combined in a package). The above services are no different, though, after millenia of living under the governments' monopolies, it may be difficult for us to conceive of this.

Think about the other example I mentioned: eating. Today it is done through many parallel channels. You can go to a restaurant. You can buy your own food and cook (and there are multiple places to buy ingredients and cooking utensils from). You can pay someone else to come and cook for you. And for each mentioned service, there are many other services sustaining it. For many people in the Soviet Union, as late as 1980s, it was difficult to imagine what would happen if collective farms, where food was grown by the government, were disbanded. Some people really believed that people would starve.

So, this is basically where we are today regarding conflict resolution. We think that without the government doing it, the society would break down into chaos and violence.

Some of the questions immediately arising after reading the above may be addressed in the following sources and examples:

Articles:

Chaos Theory by Bob Morthpy

Won't the Warlords Take Over? by Bob Murphy

Law in Medieval Iceland and Ireland

Law in (not so) Wild-Wild West

Videos:

Market for Security by Bob Murphy

A brief excerpt from the above video explaining the point about the warlords

A recenty interview with David Friedman:

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.

What should the law be?

First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And second, you must be a pirate for the pirate's code to apply, and you're not. And third, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner.

— Captain Barbossa, Pirates of the Caribbean 

A repost from elsewhere. I am answering the question: "Should we give a brother and a sister a right to get married?"

My response:


The concept of law can be summarized as "a set of rules that will allow people to live in peace and resolve their conflicts non-violently if they choose so". The alternative to law is Hobbsean jungle, where every person defends himself with violence against everyone else, basically treating all other humans as forces of nature which one can either give in to or fight. The concept of society and civilization presupposes a desire to avoid such conflicts and live in peace.

This shows that any kind of violence cannot be a part of law. Note that I am not talking about law enforcement: that may or may not require violence (law can also be enforced through non-violent threats of  ostracism, for example). I am talking about law: figuring out, theoretically, whom a certain resource should justly belong to in a case of a conflict.

Law must be such that all members of society should agree to it. This is what separates law from morality: the latter is a rule for someone to keep even in private. If I consider stealing immoral, I shouldn't do it whether or not I will be caught. Law, on the other hand, is a public "sign" for all to read, agree to, and enforce. (In particular, because everyone agrees to a certain law, everyone finds its enforcement appropriate.) If stealing is unlawful, then we all agree to catch thieves and make them return the stolen property back to the owners (plus the costs of catching them).

This understanding of law shows that:

a) it cannot use violence or threats of violence
b) it must be a common denominator between different groups of people living in a society and even sometimes having different moral preferences.


Both principles explain why polygamy or incest or homosexual marriage cannot be considered illegal (unlawful) if we stick to the above definition of law. Laws against such activities would not be not solving conflicts; in fact, they'd be creating them!

Note that I may consider a certain behavior (for instance, eating pork or gossip) immoral, but not unlawful.

The concept of rights as interpreted through this definition (what the law should recognize as someone's right) means that the rights are not given, but discovered (as the most rational means to promote peace in a society).

Note that Jefferson agreed to this idea in the Declaration of Independence. He starts off by saying that all people have rights deriving from their nature as rational beings (which was granted to them by the Creator, evolution, aliens, or whatever you believe in). Only then he says that in order to protect those rights, the governments are formed.


On the other hand, the same concept of law also explains why law cannot be positive: created by the government. Simply because Obama says X doesn't explain why X should be the law. X must be justified as the best way to resolve a conflict between two parties and create justice. And if X has nothing to do with conflict resolution, then it's not a law at all!

Nowadays, what is Obama's (or any other politician's) justification for declaring X a law?

a) if you disobey X, I will put you in a cage
b) 51% of the people elected me

But neither is a good justification for why X leads to greatest justice. In fact, both are threats of violence: the former, violence of the government on the people; the latter, violence of the majority on the minority.

The view that law cannot be positively declared but must be objectively discovered may sound shocking, but in fact it was the traditional view in all societies until the Enlightenment and the so-called "nation-states". Kings back in the day were not in charge of creating laws; they were in charge of adjudication, enforcement, and, more often, protection of their "subjects". If you told people that we should ask a king what the law should be, they would look confused and ask back: "Should you also ask him what 2+2 equals to?"


Here are some quotes to prove that historically, people held the above view of the law (taken from Roderick Long's essay The Nature of Law):

"I find that it has been the opinion of the wisest men that law is not a product of human thought, nor is it any enactment of peoples, but something eternal ....

From this point of view it can be readily understood that those who formulated wicked and unrighteous statutes for nations, thereby violating their trust and compact, put into effect anything but laws. It may thus be clear that in the very definition of the term law there inheres the idea and principle of choosing what is right and true. ...

What of the many deadly and pestilential statutes which nations put in force? These no more deserve to be called laws than the rules a band of robbers might pass in their assembly. For if ignorant and unskillful men have prescribed deadly poisons instead of healing drugs, these cannot possibly be called physicians' prescriptions."
— Cicero, Laws (1st c. B.C.)

"Jurisprudence is acquaintance with things human and divine, the knowledge of what is right and what is wrong. ... These are the precepts of the law: to live rightly, not to wrong another, and to render to each his own."
— Institutes of Justinian (6th c. A.D.)

"The Roman jurist was a sort of scientist: the objects of his research were the solutions to cases that citizens submitted to him for study, just as industrialists might today submit to a physicist or to an engineer a technical problem concerning their plants or their production. Hence, private Roman law was something to be described or to be discovered, not something to be enacted – a world of things that there were, forming part of the common heritage of all Roman citizens. Nobody enacted that law; nobody could change it by any exercise of his personal will."
— Bruno Leoni, Freedom and the Law

"The Anglo-Saxon courts, called moots, were public assemblies of common men and neighbors. The moots did not expend their efforts on creating or codifying the law; they left that to custom and to the essentially declaratory law codes of kings. ... As in other customary legal systems, the moots typically demanded that criminals pay restitution or composition to their victims .... The law codes of early medieval Europe consisted largely of lists of offenses and the corresponding schedules of payments. In issuing these, Kings were not legislating in the modern sense: they were rather codifying and declaring already existing custom and practice."
— Tom Bell, "Polycentric Law," Humane Studies Review 7, No. 1, 1991/92


"Law in the sense of enforced rules of conduct is undoubtedly coeval with society; only the observance of common rules makes the peaceful existence of individuals in society possible. ... Such rules might in a sense not be known and still have to be discovered, because from 'knowing how' to act, or from being able to recognize that the acts of another did or did not conform to accepted practices, it is still a long way to being able to state such rules in words.

But while it might be generally recognized that the discovery and statement of what the accepted rules were (or the articulation of rules that would be approved when acted upon) was a task requiring special wisdom, nobody yet conceived of law as something which men could make at will. It is no accident that we still use the same word 'law' for the invariable rules which govern nature and for the rules which govern men's conduct. They were both conceived at first as something existing independently of human will. ... they were regarded as eternal truths that man could try to discover but which he could not alter.

To modern man, on the other hand, the belief that all law governing human action is the product of legislation appears so obvious that the contention that law is older than law-making has almost the character of a paradox. Yet there can be no doubt that law existed for ages before it occurred to man that he could make or alter it. ... A 'legislator' might endeavor to purge the law of supposed corruptions, or to restore it to its pristine purity, but it was not thought that he could make new law. The historians of law are agreed that in this respect all the famous early 'law-givers', from Ur-Nammu and Hammurabi to Solon, Lykurgus and the authors of the Roman Twelve Tables, did not intend to create new law but merely to state what law was and had always been."
— F. A. Hayek, Law, Legislation and Liberty


"Since it is by law that what is legislated is legislated, in virtue of law's being what is this legislated? Is it in virtue of its being some awareness, or some showing, as what is learned is learned through the science that shows it? ... Aren't right, and law, most fine? ... And wrong, and lawlessness, most shameful? ... And the former preserves states and all other things, while the latter destroys and overturns? ... So one ought to think of law as something fine, and seek it as good? ... So it wouldn't be appropriate for the wicked official judgment to be law. ... And yet even to me law seems to be some sort of judgment; but since it's not the wicked judgment, isn't it clear that law, if indeed it is judgment, is the worthy? ... And what is worthy judgment? Is it not true judgment? ... Isn't the true, the discovery of what is so? ... Law, then, wishes to be the discovery of what is so .... but men, who (so it seems to us) do not at all times use the same laws are not at all times capable of discovering what the law wishes: what is so. ... What's right is right and what's wrong is wrong. And isn't this believed by everyone ... even among the Persians, and always? ... What is fine, no doubt, is everywhere legislated as fine, and what is shameful as shameful; but not the shameful as fine or the fine as shameful. ... And in general, what is so, rather than what is not so, is legislated as being so, both by us and by everyone else. ... So he who errs about what is so, errs about the legal. ... So in the writings about right and wrong, and in general about ordering a state and about how a state ought to be organized, what is correct is royal law, while what is not correct, what seems to be law to those who lack knowledge, is not, for it is lawless."
— Plato, Minos (5th c. B.C.)


"But what is violence and lawlessness, Pericles? Isn't it when the stronger party compels the weaker to do what he wants by using force instead of persuasion? ... Then anything a despot enacts and compels the citizens to do instead of persuading them is an example of lawlessness? ... And if the minority enacts something not by persuading the majority but by dominating it, should we call this violence or not? It seems to me that if one party, instead of persuading another, compels him to do something, whether by enactment or not, this is always violence rather than law. Then if the people as a whole uses not persuasion but its superior power to enact measures against the propertied classes, will that be violence rather than law?"

— Xenophon, Recollections of Socrates (5th c. B.C.)

"When a case arises for which no valid law can be adduced, then the lawful men or doomsmen will make new law in the belief that what they are making is good old law, not indeed expressly handed-down, but tacitly existent. They do not, therefore, create the law: they 'discover' it."

— Fritz Kern, Kingship and Law in the Middle Ages

"As Augustine says, that which is not right seems to be no law at all; wherefore the force of a law depends on the extent to which it is right. ... Consequently, every human law has the nature of law only to the extent that it is derived from the law of nature. But if, in any point, it deviates from the law of nature, it is no longer a law but a perversion of law. ... when an authority imposes on his subjects burdensome 'laws' conducive not to the common good but rather to his own cupidity and vainglory .... the like are acts of violence rather than laws .... wherefore such 'laws' do not bind in conscience .... A tyrannical government is not right ... Consequently, there is no sedition in disturbing a government of this kind .... Indeed, it is the tyrant, rather, that is guilty of sedition .... If a thing is of itself contrary to natural right, the human will cannot make it right ...."

— Thomas Aquinas, Summa Theologiæ (13th c.)

"A human legislator does not have a perfect will, as God has; and therefore ... such a legislator may sometimes prescribe unjust things, a fact which is manifestly true; but he has not the power to bind through unjust laws, and consequently, even though he may indeed prescribe that which is unjust, such a precept is not law, inasmuch as it lacks the force or validity to impose a binding obligation."

— Francisco Suarez, On Laws, and on God as Legislator (17th c.)

"Nihil quod est contra rationem est licitum: nothing which is against reason is lawful. It is a sure maxim in law, for reason is the life of law."

— Richard Overton, A Defiance Against All Arbitrary Usurpations or Encroachments (17th c.)

"These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render every one its due; to which three general principles Justinian has reduced the whole doctrine of law. ... [God] has graciously reduced the rule of obedience to this one paternal precept, 'that man should pursue his own happiness.' This is the foundation of what we call ethics, or natural law. ... This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. ...

Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them .... For that legislature in all these cases acts only, as was before observed, in subordination to the great lawgiver, transcribing and publishing his precepts. ... [A judge is] sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet .... if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm ...."

— William Blackstone, Commentaries on the Laws of England (18th c.)


"But let the origin of government be placed where it may, the end of it is manifestly the good of the whole. Salus populi suprema lex esto [let the welfare of the people be the supreme law], is of the law of nature .... To say the parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2, 5: Omnipotency cannot do it. The supreme power in a state, is jus dicere [to state the right] only: — jus dare [to give the right] strictly speaking, belongs alone to God. Parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of parliament that makes it so: There must be in every instance, a higher authority, viz. GOD. Should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void: and so it would be adjudged by the parliament itself, when convinced of their mistake. Upon this great principle, parliaments repeal such acts, as soon as they find they have been mistaken, in having declared them to be for the public good, when in fact they were not so."

— James Otis, The Rights of the British Colonies Asserted and Proved (18th c.)

"... justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by human power. ... It does not derive its authority from the commands, will, pleasure, or discretion of any possible combination of men, whether calling themselves a government, or by any other name.

It is also, at all times, and in all places, the supreme law. And being everywhere and always the supreme law, it is necessarily everywhere and always the only law. Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them, –– that is, all the laws of their own making, –– have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men's duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. ... It is intrinsically just as false, absurd, ludicrous, and ridiculous to say that lawmakers, so-called, can invent and make any laws, of their own ... as it would be to say that they can invent and make such mathematics, chemistry, physiology, or other sciences, as they see fit .... "

— Lysander Spooner, Letter to Grover Cleveland (19th c.)

"I deny that legislators make law. They create legal Acts, statutes, which may or may not coincide with real Law, and in fact seldom do. ... the great majority of such legislative Acts are intended to prevent or hamper or stop harmless and useful human action, so the enforcement of them has that lamentable effect."

— Rose Wilder Lane, The Lady and the Tycoon (20th c.)

Sovereignty of the individual

(leader of all humanity, by definition?)

Most people seem to take the concept of the sovereignty of nations by faith. Otherwise, we might all as well listen to what the Chinese and Indian presidents have to say: after all, these two nations alone contain the majority of the people on the Earth (and, as far as we know, anywhere else in the Universe). So, the politicians elected by those two nations by definition represent the will of the majority of the world's population (if you were to follow such — in my opinion fallacious — logic about an elected official "representing" anyone's will).

But to most people it seems absurd that someone far away can dictate "us" how to live.

Furthermore, some Americans believe in states' rights: the rights of communities to decide what's right for them, independent of each other or some centralized government.

But why does it have to stop at the states or nations? Doesn't this reasoning, if taken to its logical conclusion, imply that no person may interfere with another's life, his expression of his will, his "pursuit of happiness" (except in self-defense against another's attempt at interference)? If we say: "Why should China dictate Americans how to live?", then why should Americans dictate each other how to live?

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.

Peace through mutual threat

A re-post from FB:

Having a society where everyone is extremely well armed with a super-deadly force (but not WMD) is having a free society. Free of violence and coercion. Sounds crazy? Well, let me explain:

Imagine we come to some island where the resources are limited, and we have to cooperate. The only thing is: each of us is armed with a magic wand (or, better yet, has a magic ring on his finger), which, if pointed in another's direction with a violent intention leads to the target's pulverization within seconds. But the target gets to know who "hexed" him and respond with the same hex before he dies.

What does this mean? This means everyone is going to be afraid to use violence of any sort. If I am going to try to compel you to do something, what threat can I use? That I will pulverize you with my magic weapon? But in your last seconds, you will do the same to me. If my goal is to be alive, I have to cooperate and only use words, never threats of violence.

This is why some people say that as many nations arming themselves with nuclear weapons as possible actually reduces war. We are afraid to attack Russia or N. Korea, because we know they will respond. The only problem is: nations are run by violent homicidal maniacs. Aka politicians.

Most people are not violent nutjobs, though.

This is why mutual armament is conducive to peace and non-aggression. It forces people to negotiate with each other with utmost respect for each other's point of view and each person's "pursuit of happiness".

The pictorial representation of this concept is this (taken from Robert Murphy's book Chaos Theory):

Adolescence

Inspired by this FB meme:



Interesting argument: that adolescence is basically a modern construct forced upon the teenagers who would otherwise grow up much faster. So, kids are stuck in this weird limbo, where their normal neural development tells them to start becoming adults, but in their lives they are forced (by the parents and the society) to remain kids. Result: the rebellious (or "troubled") teenager phenomenon.

Historically, people behaved like adults right after the start of puberty. In Jewish communities, people would get married at 14. (Both boys and girls. The founder of Chabad movement, Alter Rebbe, got married at 16.) People just state the fact that "teenagers of today are not like the teenagers of back in the day", but where did this dichotomy come from? Furthermore, we see now even 30-year-olds who behave like teenagers. (I won't mention our government and its spending habits.)

Now, since I am a libertarian, I have to blame the government, right?.. :) Well, when the government made it its job to protect kids from "harsh realities of everyday life" (read: adulthood) like working and defined "childhood" as "before 18/21", it created this phenomenon.

Right? If someone is going to become an adult at the age of 14-15, he has to be able to get a job, get his own apartment, marry, drink, smoke and do whatever he wants, taking full responsibility for his life and be treated as an adult (which includes equal respect for his freedoms) both by his parents and the society.

But if he can't get a job (and minimum-wage laws don't help: they tend to increase unemployment among the lowest-paid wage earners, since the minimum wage is now above their marginal profit for the employers), he is forced to live with his parents. And, of course, "my house, my rules". Adulthood out of the window.

He has all the exact desires (all the same "pursuits of happiness") as all the adults. He wants to make his own choices in education, employment, hobbies, recreation, and relationships. But the society forbids them to him (through its social norms or its laws). If he is free-spirited (read: adult) enough to pursue them, he is labeled as a rebel or a criminal.

Note how kids who grow up on the street tend to be more adult in many areas than the kids who live with their parents until they go away to college. These 14-year-olds have to survive and support themselves (and, sometimes, their little siblings). Those come home to a cooked dinner and then go to their rooms to their playstations. (Also look at the 18-year-old shluchim and shluchos who go to Taiwan or India or Madagascar and start their own Chabad Houses, creating communities around them. Most Americans look at them in awe. I've heard many 30-year-old women say: "I could not run a Chabad House and take care of two kids the way that Chaya [21 years old] does.")

I am not arguing that we should throw the teenagers on the street. Just like I am not arguing that we should throw 18- (or 25-) year-olds on the street. My point is that if the society recognized teenagers' equal legal/societal rights and offered them employment opportunities, they would "grow up" just like the kids living on the street. Except they would not be living on the street; they would be doing all the jobs that modern college kids do and living in cheap apartments with roommates.

What about education? First, I don't think the current "education program" is for everyone. People should be free to choose work or education at their own pace. But even for those destined for the school–college (–Ph.D.?–post-doc?) career, living on their own (and supporting themselves through work, internships, or scholarships) should be a choice. For that, again, we must abolish all economic measures that limit teenagers' employability (minimum wage laws, etc.) and recognize their equal legal rights to everything.

Not to mention that the government-funded mass education facilities very likely exacerbate the problem. I've gone to a public high school for three years (my 13th to 16th years of life; most Americans' 14th to 18th). Quick description: feed-forward cycle of idiocy. Teachers treat students as idiots; the students behave as idiots and treat teachers as idiots. And the cycle continues.


Bottom line: you want the teenagers to grow up? Start respecting them as adults.

Why have laws at all?

I just saw this image on the Facebook:




Ironically, this is an excellent argument against any kind of victimless prohibitions. ("Ironically", because obviously this is not what the author of the meme meant.) Yes, banning guns only gives them into the hands of criminals. The same with banning drugs or prostitution. As a result of the government banning stuff, there is a whole necessarily shady element of society out there doing things that we have banned... Banning alcohol creates Al Capone. Banning narcotics creates Columbian drug lords. Banning prostitution creates violent pimps.

So, what's the point of the laws? Why do we have them at all?

We have laws for peaceful resolution of conflict. For instance, if I play music loudly late at night, this creates a conflict between me and my neighbors. A law will create a clear boundary that will demonstrate who is violating whose rights. (This law can come from a legislative monopoly like we have today or from independent competing experts selected for by the market.)


Note that in here I am talking about civil laws. Laws created by the people for the people. I.e., laws that everyone agrees on for everyone's prosperity. Not "take of your shoes when entering my house" kind of laws. For distinction between the two, see this post:

Modern States and Dina D'Malchusa Dina

The responsibility to refuse

(Thoreau is one of the most famous Americans to have argued about the importance of public disobedience to immoral laws. He also looks a bit like the Soviet Sherlock Holmes.)

I have just read an article about the Israeli soldiers' right to refuse to carry out their superiors' orders to throw out settlers of their homesteaded homes. Some have claimed that such refusal undermines the fabric of Israeli democracy.

The author argues that every citizen of a democracy has a right to refuse the government's laws. I say that he has a responsibility to do so when the laws are immoral.

A couple quotes:

'Do not individuals have the right, indeed the duty, to question the morality of their governments’ decisions? 

The worship of the government is fascism, or as Rabbi Joseph Soloveitchik wrote, “the enslavement to the state can also become idolatry.“ [...] 

In Western philosophy, going all the way back to Socrates, civil disobedience to immoral law is perceived as a fundamental protection of democracy and a means for defending the rights of the minority from the tyranny of the majority. 

Following the Second World War and the Holocaust, the Nuremberg Trials were obvious proof that obeying immoral orders is immanently immoral, as the Nazi leaders were executed for obeying laws. The civilized world had expected them to disobey these laws, regardless of the legal consequences or peril to their own safety.'

And let no idiot mention Godwin's law.

Essential

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

Impossibility of voluntary slavery

From Murray Rothbard's Ethics of Liberty, "Property Rights and the Theory of Contracts":

Let us pursue more deeply our argument that mere promises or expectations should not be enforceable. The basic reason is that the only valid transfer of title of ownership in the free society is the case where the property is, in fact and in the nature of man, alienable by man. All physical property owned by a person is alienable, i.e., in natural fact it can be given or transferred to the ownership and control of another party. I can give away or sell to another person my shoes, my house, my car, my money, etc. But there are certain vital things which, in natural fact and in the nature of man, are inalienable, i.e., they cannot in fact be alienated, even voluntarily. 

Specifically, a person cannot alienate his will, more particularly his control over his own mind and body. Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, “stuck” with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will. That is the ground for the famous position of the Declaration of Independence that man’s natural rights are inalienable; that is, they cannot be surrendered, even if the person wishes to do so. 

Or, as Williamson Evers points out, the philosophical defenses of human rights "are founded upon the natural fact that each human is the proprietor of his own will. To take rights like those of property and contractual freedom that are based on a foundation of the absolute self-ownership of the will and then to use those derived rights to destroy their own foundation is philosophically invalid".

Hence, the unenforceability, in libertarian theory, of voluntary slave contracts.

 Read on.