Tuesday, December 7, 2010
Tuesday, November 30, 2010
Monday, November 22, 2010
Thursday, October 28, 2010
Sunday, October 10, 2010
Thursday, September 9, 2010
Tuesday, September 7, 2010
Friday, September 3, 2010
Friday, August 27, 2010
Tuesday, August 17, 2010
If you accept the hypothesis that the gold market is heavily manipulated and if you accept the hypothesis that 9/11 and 7/7 were likely false-flag events, then it's not a big leap to suggest a correlation between 7/7 and the gold price turning a corner in 2005 at almost exactly the same time.
Tuesday, August 10, 2010
Monday, August 9, 2010
Sunday, August 8, 2010
I was watching Gerald Celente today and Iran came up. For some reason, the thought of buying a nuclear weapon on the black market flashed into my head. If Iran were intent on "wiping Israel off the map" - as the imperialists claim - why wouldn't they just buy nukes off the black market? They have a fully operational intelligence service. Its acronym is, ironically, MISIRI. So, if drug lords can buy these things, surely a nationally funded intelligence service can. Here's a YouTube video discussing the trek of some freelance journalists to hunt down black market nukes in Bulgaria. It might be a bit of a tall tale but it can't be far from the truth. These nukes are far from accounted for.
It just goes to show that the saber-rattling from Washington DC & Co. is all a big farce put forward by the war-mongers to justify the war they want.
Wednesday, August 4, 2010
Tuesday, August 3, 2010
Monday, July 26, 2010
And Wikileaks's Top-10 successes aren't anything to get excited about. Probably the most substantial item was the CRU emails that were supposedly "hacked" by Russian teenagers or something. I have a working hypothesis that the April 20th Deepwater Horizon oil rig explosion was actually a retaliatory strike against whoever was really behind the CRU leaks. If CIA is aligned with US oil interests (likely), then this makes sense... the Deepwater Horizon explosion would materially damage offshore drilling in the Gulf and put the hurt on the interests backing CIA that defected and derailed the Copenhagen agreement.
Sunday, July 25, 2010
Rothbard and Hoppe use the idea of a "natural order" against which to criticize the State. One of the difficulties of this approach is that it makes an arbitrary distinction between what is "natural" and what is not - why is it the case that the State is unnatural and what does it even mean for something to be "unnatural", given methodological naturalism? Whether the government is "natural" or not, the question remains: why does it exist? Here's my video on what the government is.
My current view regarding why government exists:
- The essence of the State is the accepted or legitimized double-standard
- This is puzzling since humans generally find double-standards revolting... the Golden Rule is a culturally universal ethical principle
- My solution is as follows:
- Humans evolved from primates which largely engage in alpha-male mating patterns
- Alpha-male mating separates the males into two categories, the commoners and the elite (alpha)
- The costs of reproduction were shared communally (pregnancy and birth costs borne solely by the mother)
- The human nuclear family (culturally universal), on the other hand, evolved to "privatize" the costs of reproduction (Hoppe), making reproduction more efficient
- This privatization occurred by resolving the problem of paternity uncertainty with a combination of monogamy and concealed fertility*
- In alpha-male mating, paternity uncertainty was resolved by granting a monopoly on mating privileges to the fittest male
- The congenital tolerance that the vast majority of people have for the State is a vestige of our alpha-male morality, where everyone accepted as a matter of course that one special male would be permitted the privilege of reproducing while all other males would be prohibited from having this privilege
I believe this explains why a State can exist at all. Try going to a national park and blatantly breaking one of the rules with a large crowd of people standing around. Within seconds, you will hear loud grumbles or even threats of calling a ranger. This "crowd morality" is the result of an instant, visceral reaction on the part of people within the crowd to the effect "Who does he think he is? I guess he thinks he doesn't have to follow the same rules as everybody else. We each have to obey the rules in order for this park to work. Somebody needs to put him in his place."
But when a police officer engages in blatantly illegal or immoral behavior - even on videotape - it's almost as if a fnord has been inserted into the brains of the public. What is it about a uniform and association with the territorial monopolist of law and force that causes people not only to not apply their ordinary, visceral reaction to a double-standard but to apply that reaction to anyone who points out the double-standard?!? I think the answer is my alpha-male vestige theory, or something like it.
*Biologists believe that human females have concealed fertility - unlike our primate ancestors whose fertility is advertised - to make it hard to engage in cuckoldry, that is, accepting support from a less fit male (to get the benefit of his labor) while reproducing with a more fit male (to give her offspring the benefit of his excellent genes)
Thursday, July 22, 2010
I've noticed a collectivist under-current in some of the thinking of folks involved in the Free-State Project and other libertarians. This collectivism is subtle but real.
Sure, "live free or die" as a personal motto or ethic is ultimately an expression of individualism. But many libertarians incorrectly diagnose the ills of modern statist society to be due to a lack of willingness to die for one's liberty on the part of the masses. They are asserting something along the lines of "if only people were more generally willing to die for their liberty, we'd all be truly free." The idea is that a tyrant can't dominate a people composed of individuals who are mostly willing to die rather than be enslaved to the tyrant.
But I think this is subtle or stealth collectivism because dying for one's liberty is not really dying for one'sown liberty (you can't be free when you're dead). Instead, dying for liberty is dying for the liberty of others. And such self-sacrificial acts - while laudable in their own right - are not performed in one's own interests but in the interests of the collective. Those who subscribe to the theory that we are not free because enough people are not willing to die for freedom ultimately have no faith in the self-organizing nature of society composed of uncoordinated individuals pursuing their own, independent ends.
Even if it's just an expression of one's personal credo or motto, I still cringe every time I read the phrase, "Live Free or Die."
Monday, July 19, 2010
- 16,000 US servicemen in Vietnam as "advisors"
- On Oct. 11, Kennedy orders 1,000 soldiers withdrawn from Vietnam by the end of 1963 in NSAM 263
- On Nov. 22, JFK shot
- 4 days later, JFK's order to withdraw 1,000 men from Vietnam reversed by LBJ in NSAM 273
- Aug. 1964, Gulf of Tonkin incident (false flag/fabricated incident)
- Deployments to Vietnam go through the stratosphere, reaching 550,000+ men in less than 5 years, see this PDF (page 9) for a chart showing the "hockey stick" from 1963 onward in troop levels in Vietnam
Sunday, July 18, 2010
Monday, May 17, 2010
Tuesday, May 4, 2010
Saturday, February 13, 2010
Tuesday, February 2, 2010
In this awesome mises.org daily (excerpted from Journal of Libertarian Studies), Hans Hoppe makes the case that the state's predation has increased inexorably under democracy vis-a-vis the levels of State predation which prevailed under monarchy. I think Hoppe's case is historically and logically sound.
However, there is another interpretation of the increasing invasion of the State into everyday life which I think deserves some consideration. If we go back to the origins of the State, it began with simple robbery ... plunder and tribute collected from tribes by war raiders. These war raiders, through one means or another, eventually transmuted into "steady-state" plunderers, extracting regular payments from a subject population rather than running one-off raids. In the beginning, the State existed without apology. Might did make right. There was no other reason to obey the State than that they could put a spear through you.
As time went on, however, alliances between the State formed with priests, merchants and judges. This alliance was originally very small, so that only a very tiny number of people enjoyed the privileges of belonging to the predatory class. Since the defining features of the modern State are its territorial monopolies of law and force (and coercive revenuing), we can start with the emergence of these features as the birth of the fully-developed State in human history.
Note, however, than since the State is naught but organized crime (aggression), its only distinction with other criminal organizations is its success in establishing a territorial monopoly on the means of legitimizing its aggressions. Because people were poorer and less well educated in the past, less sophisticated justifications for State aggression were needed. So, the Pharaoh wore a funny hat and employed the priest class to build astrological temples and that legitimized his coercion. However, over time, the State has had to employ ever more expensive and rigorous justifications for its parasitism. The ideal situation, from the point of view of the State, is to employ no one and to waste none of its revenues justifying its coercions, while collecting all the revenues solely for consumption on its own pleasures.
Looking at social welfare measures, such as the New Deal, it is clear that, while power elite analysis clearly demonstrates the ways in which these measures served the interests of those most urgently pressing for them, it also shows that the State has had to distribute its largesse to a wider and wider subgroup of the public. Initially, the proto-State raiders employed no one and spent none of their spoils justifying their raids. They simply consumed the proceeds of their raids on their own pleasures. As the State emerged, the plunderers began to employ judges, priests and merchants to put up a facade of legitimacy, to justify the plundering. As time has gone on, the costs of State apologetics have grown inexorably, to the present system that consumes 50% of GDP, most of which is spent on ends which are ancillary to the State's raison d'etre: plunderous aggression.
Hoppe points out the invasion of the Federal government into everyday life.
"... the 1994 edition of the Code of Federal Regulations (CFR), the annual compendium of all US Federal Government regulations currently in effect, consists of a total of 201 books, occupying about 26 feet of library shelf space. The Code's index alone is 754 pages. The Code contains regulations concerning the production and distribution of almost everything imaginable: from celery, mushrooms, watermelons, watchbands, the labeling of incandescent light bulbs, hosiery, iron and steel manufacturing, and onion rings made out of diced onions, revealing the almost-totalitarian power of a democratic government."
This brings me to my alternative interpretation, namely, that the growth in the numbers of the parasitic class, and the dilution of the revenues commanded by the parasitic class, can be seen as a loss of power by the State, analogous to the loss of power by monarchs with the rise of democracy in the late-19th and early-20th century. Suffrage was extended to ever-wider groups because the counter-arguments to extending suffrage are too de-legitimizing. The State has had to share its parasitic revenues with an ever-growing subgroup of the public. It might seem that communism is an extremum of this process but I do not think that it is... communism is a concentration, not a dilution of state power and state revenues. While everyone is technically on the payroll of the State, the reality is that the State is consuming the vast majority of production and the people are being paid slave's wages by the State while the capital stock of the economy is burnt up and the communized economy eventually grinds to a halt on the precipice of tribal economics. I do not think this is analogous to the ever-expanding network of bribes and payoffs that constitute the parasitic class of the modern society. Now, the State has to pave the roads, run the phones and innumerable other ancillary tasks that it never had to bother with before, in order to continue legitimizing its core purpose of enabling the parasitic class to live at the expense of others.
This dilution of power not only applies to revenues but also to regulations. One interpretation of regulations is that they reflect an "omnipotence" on the part of the government... but anyone who has driven over the speed limit or smoked a joint knows that the government's regulations are not an expression of its actual omnipotence but its pretensions thereof. But why does the government pass so many regulations that it does not really intend to enforce? One reason is so that it has plenty of infractions to slap onto the innocent citizen with the temerity to stand up to the powers that be. But I think we have to ask why these regulations? Why does the government regulate this but not that? The reason is that regulations are a reflection of the expectations of the statist public from "good government". Good government won't let our kids drink and smoke cigarettes and will do everything in its power to ensure this doesn't happen. Every "immoral" behavior which can be construed in any way to have some effect on another person, however remote and indirect, is to be regulated by good government... government of conscience. This is part and parcel of the legitimization of government, the use of coercion to implement the will of the moral majority. This placates the majority with the feeling that the government is on God's side, something that their Pastors and priests - usually inadvertently - reinforce with every sermon on the duty of the individual to do everything in his or her power to stop others from behaving immoral (due to the damage they are doing to their immortal soul). The government is only following the sound advice of our spiritual leaders by doing everything in its power to stop people from behaving immorally. Spending the night in jail might suck, but if it teaches you not to drink the devil's liquor, why, you've been saved a great deal more suffering in the fires of Hell.
So, the increase in the size of the public sector and the increase in the number of regulations are symptomatic, I believe, of the weakness of the State's case for its own powers. While it is true that State expenditures have never been higher and State regulations have never been greater, this cannot in itself be interpreted as the result of a real increase in the State's power. The State ultimately derives its power from the legitimacy it commands in the public's eye. The more money the State has to spend on the pursuit of this ancillary goal, the less money it has for its own consumption. The more regulations the State has to implement to legitimize itself are a reflection of the greater demands of the public for the State to meet the criterion of legitimacy.
Thursday, January 28, 2010
Wednesday, January 27, 2010
Tuesday, January 19, 2010
What is law? Frederic Bastiat, in his treatise The Law, defines law as the collective use of force. As much as I love Bastiat’s treatise, I think his definition is not sufficiently analytical. It is certainly the case that the law plays a role in the collective use of force but the law is something more basic than this. We can begin by looking at law as it is today. The website for the Oregon courts has an excellent summary of modern law and courts. I will quote it at length:
Throughout history, people have had disputes and have needed some means to settle their disputes. As civil societies develop, they need an orderly system of conflict resolution. One system that developed in "western" cultures is the "law court" or court of law. In England, those early law courts developed a "body of law" called the common law, which defined both the rights of the people and the government and the duties people owe each other and their government. There was no legislature yet to adopt statutes.
English settlers brought this common law with them to the American Colonies, where it developed into the American common law. Over time, state and federal constitutions and statutes have superseded much American common law. Courts continue to look to the common law for guidance if no statute defines the rights and duties in a particular case.
As in other states, courts in Oregon are both rooted in this common law tradition and governed by a state constitution and statutes that supersede the common law. Oregon's statutes are organized by subject matter in a set of books called Oregon Revised Statutes (ORS).
As in other states, Oregon law has two broad branches: civil law and criminal law, each with origins in the common law and each now governed primarily by statute.
Civil law includes statutes and "case law" that define or interpret individuals' and organizations' private rights in their relationships and disputes that involve property, contracts, personal injury, family relationships, tax, or government rules and regulations.
Because Oregon does not have laws that define every private right, courts rely on the "court-made" law called "common law" to resolve some disputes.
Criminal law is the body of laws that define a person's basic rights in and duties to preserve a peaceful and safe society. A person who violates the duties to preserve social peace and safety may be guilty of a crime "against the people" and so face jail, prison, or some other punishment. In addition, if the lawbreaker's act injured another (the "victim"), the victim may have a right to a private, civil law claim for damages.
Modern criminal law is almost all statutory. Criminal cases require courts to decide whether and how certain criminal laws apply and whether those laws as applied violate the state or federal constitution.
The legislature can change the common law by enacting a statute, so long as the governor does not veto the new law. The courts must follow that law so long as it does not conflict with the state or federal constitution. However, if no statute "governs" the issue in a particular case, the court may look to the common law rules for guidance.
When an appellate court must interpret statutory or common law in order to decide a case, the court's decision becomes "precedent" for deciding future cases with similar issues.
A precedent that interprets a statute makes that interpretation part of the statute.
A precedent that applies the common law to a new situation becomes part of the common law.
Although courts usually "follow precedent," courts may modify the earlier common law rules in some circumstances.
The legislature enacts other statutes that affect courts as well. The legislature determines the budget for the state courts and defines the amounts they charge for filing fees and other court fees. The legislature also defines how state courts collect fines and distribute the money collected.
This summary contains all the essential elements of the modern law. We have a common law tradition which forms the foundation on which the law rests. Statutes override the common law to force the courts to operate in accord with the State’s interests. Interpretation of the common law or statutory law forms new legal precedent. New precedents are folded into the common law and statutory law to extend the body of law.
Hans Hoppe, in a recent lecture, defines the State in the following manner:
Let me begin with the definition of a state. What must an agent be able to do to qualify as a state? This agent must be able to insist that all conflicts among the inhabitants of a given territory be brought to him for ultimate decision-making or be subject to his final review. In particular, this agent must be able to insist that all conflicts involving himself be adjudicated by him or his agent. And, implied in the power to exclude all others from acting as ultimate judge, as the second defining characteristic of a state, is the agent's power to tax: to unilaterally determine the price that justice seekers must pay for his services.
Based on this definition of a state, it is easy to understand why a desire to control a state might exist. For whoever is a monopolist of final arbitration within a given territory can make laws. And he who can legislate can also tax. Surely, this is an enviable position.
Hoppe goes on to describe the alliance between intellectuals, as social opinion-molders, and the State. The State, Hoppe says, subsidizes the production of intellectual goods in exchange for intellectual loyalty to the State and production of philosophical justifications and rationalizations for the State’s existence. The same line of reasoning can be applied to the State’s monopolization of legal services. Dispute-resolution is surely older than the organized State. At some point in human history, the State took an interest in monopolizing the courts. The fundamental exchange is the same as that described by Hoppe regarding the monopolization of intellectuals. The State grants its preferred jurists a monopoly on the production of dispute-resolution services in exchange for the courts’ loyalty in disputes involving the State itself. The state guards its monopoly on dispute-resolution as jealously as it guards its monopoly on the use of force or its monopoly on the coercive collection of revenues.
Murray Rothbard, Hans Hoppe and other notable anarchist philosophers approach the problem of law from the point of view of natural rights. They begin with a Lockean approach to infer inalienable, unassailable rights from the human need to survive. David Friedman, an “anarcho-capitalist”, takes a different, value-free approach to law. I do not think either approach is a satisfactory intellectual foundation for law.
I will put forward a view of law which is a hybrid of the positive law view of Friedman and the normative law views of Hoppe, Rothbard and others. In a rebuttal to Hans Hoppe’s argumentation ethics, David Friedman says the following:
… consider an ethic according to which there are no rights at all; everyone is morally free to coerce everyone else whenever he can get away with it, but many people succeed in defending themselves well enough so that they control much of their own [property]. According to their ethic they have no right to self ownership, nor to anything else, but they have physical control over themselves... One might plausibly claim that this comes close to describing the world we now live in. [Emphasis added]
I think that Friedman’s assessment of the state of affairs, while value-free, is accurate. The value-free nature of Friedman’s assessment is not its defining virtue. Rather, it is its congruency with the state of affairs we observe in the real world which makes this assessment valuable.
This leads us back to the question of what the law is. In a world where amoral coercion is consistent with physical reality, what is law, really? Let’s start from the definition used by the Oregon courts, “Throughout history, people have had disputes and have needed some means to settle their disputes. As civil societies develop, they need an orderly system of conflict resolution.” Law, that is, the court system, is an orderly system for the resolution of conflicts.
What are conflicts and how do they arise? Hans Hoppe says,
Alone on his island, Robinson Crusoe can do whatever he pleases. For him, the question concerning rules of orderly human conduct — social cooperation — simply does not arise. This question can only arise once a second person, Friday, arrives on the island. Yet even then, the question remains largely irrelevant so long as no scarcity exists.
Suppose the island is the Garden of Eden; all external goods are available in superabundance. They are "free goods," just as the air that we breathe is normally a "free" good. Whatever Crusoe does with these goods, his actions have no repercussions — neither with respect to his own future supply of such goods nor regarding the present or future supply of the same goods for Friday (and vice versa). Hence, it is impossible for there ever to be a conflict between Crusoe and Friday concerning the use of such goods. A conflict is only possible if goods are scarce. Only then will the need arise to formulate rules that make orderly, conflict-free social cooperation possible.
Hoppe’s argument suggests that there are two conditions for the existence of interpersonal conflict: more than one person and scarcity. There seems to be many forms of conflict which do not originate from scarcity, such as debates over metaphysics or religion, which may even go to fists. However, law is concerned only with real (physical) conflicts. Until a verbal argument goes to fists, it is not a real conflict. Law, in a private law society, is not concerned with resolving moral or metaphysical disputes.
As an example of a real dispute, consider the case of a traffic accident. When one person strikes another person’s vehicle with his own vehicle, there arises a dispute. This dispute has arisen because property damage has occurred. The question that is to be settled in the dispute is who was at fault, and this question is typically answered in the case of moving traffic accidents by determining who had the right-of-way, that is, who was in the right. Who had the right to proceed unhindered? Determining who was in the right establishes whether the property damage will be borne by the owner of the damaged property or will be transferred in some proportion to the offending party.
Real conflicts arise from scarcity, that is, property conflicts. So where do human rights fit into this picture? Murray Rothbard says of human rights,
… there are two senses in which property rights are identical with human rights: one, that property can only accrue to humans, so that their rights to property are rights that belong to human beings; and two, that the person's right to his own body, his personal liberty, is a property right in his own person as well as a "human right."
In Rothbard’s view, only humans have rights and all rights are property rights. All real conflict is conflict over property because the body itself may be thought of as property.
This leads to the question, what is property? We can begin with the concept of property in the human person then move on to personal property and the emergence of property in land as a guide to understanding the origins of the human conception of property. This is the Lockean approach used by Hoppe, Rothbard and others. We can look to dictionary or legal definitions of property but none of these definitions touch the heart of the issue as it regards a theory of the private production of law: what evolutionary purpose does property serve? Why did property arise in the first place?
Property serves the purpose of conflict-avoidance by acting as a generally recognized heuristic allocating physical objects to the exclusive control of one or another individual.
If you pick up my camera from a seat at the airport, I will probably only need to say, “excuse me, that’s mine, can I have it back?” to settle the matter of whether you may use it. There are many conflict-avoidance schemes in human affairs, from religious rituals to social customs. When someone says, “Pardon me” after bumping into you in a hallway, the odds of a physical conflict arising as a result of the mishap are lower than they otherwise would be. From the standpoint of biology, it should be easy to see how persons who engage in conflict-avoidance strategies have a reproductive advantage over those who do not.
Property serves to avoid conflicts by allocating scarce physical objects to the exclusive use of a single decision-maker. But what is property? I will provide a working definition of property but I will not attempt to justify my definition here. Stephan Kinsella, in an article discussing the difference between intellectual property and radio waves, says the following:
… every scarce resource–things that can be contested; rivalrous things; resources that have exclusive use, so that use by me excludes use by you, and so on–is assigned an owner; that owner is the person who first appropriated or used the property in an embordering way–that is as an owner. It’s the first person to erect publicly visible boundaries that others can respect and see; he has a better claim to the resource than any latecomer.
Any property must be physical because non-physical objects are not scarce (real conflicts cannot arise). Property is not necessarily tangible. In other words, you can own physical matter (dirt, water, rocks, paper, etc.) or energy (for example, electrical energy) but you cannot own ideas or patterns, such as a number or an image. Property is the exclusive claim to the use and disposal of a particular, scarce, physical object, defined in space and time. You cannot own a general class of physical objects, such as, “I own all ceramic dinner plates.” You may happen to own all members of a class of physical objects, such as, “I own all of Rembrandt’s self-portraits”, but you cannot own them as a class qua class, that is, you cannot claim, “Because that is a self-portrait of Rembrandt, I own it.” Because classes are ideas and ideas are not scarce, so-called “intellectual property” is not property at all. Intellectual property is an invalid claim of ownership of a class of physical objects, for example, all objects bearing a certain mark or conforming to a certain pattern.
How do physical objects become property? It seems natural to someone who has been surrounded by property all his life to assume that almost everything is and ought to be owned by somebody. Who owns the moon? Who owns Mars? There is a slice of the Antarctic continent, called
Property becomes owned through original appropriation. Original appropriation is the rule of first use: the first to use an otherwise unowned resource thereby becomes its rightful owner. If I am wandering through unowned wilderness (say, a thousand years ago when much of the Earth’s surface was unowned wilderness) and I pluck an apple from a wild apple tree, the apple becomes mine because I am using it and I am the first to put it to use. It is clear that use of unowned resources constitutes an improvement of social welfare since no one is hurt by my consuming the apple yet I am helped thereby. Since physical objects exist in a context of space and time adjacent to other physical objects, they are entangled, that is, how I use this physical object may affect some other physical object to which I do not have a property claim. Defining what constitutes valid or justifiable uses of physical resources is part of the problem that law solves.
Once owned, property can be exchanged with other persons. When people exchange property voluntarily, we know that human welfare is being improved by virtue of the exchange taking place. Voluntary exchange and original appropriation result in conflict-free improvements in the state of affairs. But property or any other conflict-avoidance strategy is imperfect because it is impossible to foresee the future or divine all possible consequences of following a certain conflict-avoidance strategy. No rule can, in all cases, prevent conflicts from ever arising. Hence, conflicts are inevitable.
Property conflicts arise as a result of unilateral changes of property boundaries. The voluntary redrawing of boundary lines obviously results in an improvement of the human condition. But since I can always be materially better off by unilaterally redrawing the boundaries of property to give myself more at the expense of others, I am motivated to do so. Real conflict results when individuals act according to the incentive to unilaterally redraw property lines. The definition of real conflict is unilateral redrawing of property boundaries.
Conflicts also arise as a result of threats, even threats which are not malicious. Presenting risks to the lives and property of others is a threat of unilateral property line redrawing. The pugnacious bar brawler who starts waving his fist in someone’s face is also threatening unilateral redrawing of a property line. Threats are as actionable as completed acts of unilateral property line redrawing. Someone who drives recklessly increases risk of property damage to those around him, even if he did not in this instance lose control and cause actual property damage.
There are two possible ways to resolve real conflicts: martial contest or non-violent resolution of the dispute. In societies where duels are permitted, parties to a dispute may choose which route they would like to pursue to resolve the conflict. However, since martial contests are terribly risky and costly, there is a large incentive to avoid them. We can see in the animal kingdom the costliness of martial contests. When they occur within the same species they are almost always non-lethal. Alpha male behavior can likely be thought of as a conflict-avoidance scheme where most serious conflicts only occur with the alpha male instead of being all-against-all. Only a single contest is required to settle the matter of who will have the benefits of being the alpha male for long stretches of time.
It is safe to assume that parties to a legal dispute are primarily motivated by adversarial self-interest. The
Rothbard argues from the point of view of natural law, starting first from the physical fact of an inalienable will in the living body and reasoning in the Lockean fashion from this fact to property rights in the body and thence to the preconditions for the body’s continued existence: standing room, air to breath and liberty to appropriate unowned natural resources or to utilize the body to produce and exchange for vital necessities. Leaving aside the potential technical problems within the natural rights arguments, there is a greater deficiency vis-à-vis applying natural rights to law. In a legal dispute involving a clear aggressor and a clear victim, the aggressor has already exhibited a disregard for morality and human rights. The purse thief is hardly concerned with the fact that his actions are immoral or violate the rights of his victim. Hence, it is of no use to expound upon his violations of natural rights. As with Friedman’s approach, Rothbard’s approach fails because it is not applicable to real disputes. That is, Rothbard’s definition of law is not useful to real individuals involved in real conflicts.
So what is the law? Law is the alternative to violent conflict when conflict-avoidance strategies (such as property lines) have failed to avoid conflict. In terms of rights in property, law is the production of new, stipulated property-lines which resolve real conflicts without further violence.
This definition immediately raises the question of how disputes can be resolved between asymmetrically powerful parties. In modern law systems, the aggressor (accused) has an incentive to resolve the conflict with his victim by means of law because the state will immediately retaliate against the accused for failure to comply with a court trial. In other words, the state offers the options of non-violent dispute resolution or immediate, overwhelming retaliatory violence (appear in court or be arrested or possibly even killed for failure to comply). In a stateless society, it appears that an aggressor would have no incentive to seek non-violent resolution of a dispute with his victim. After all, an aggressor usually will not attack unless he reasonably believes he can get away with the attack in the first place. That is, he has already calculated that he can win a martial contest with the victim.
Therefore, the victim must be able to present a sufficient threat to the accused in order to motivate the aggressor to come to court. That is, both parties must have an incentive to seek a peaceful settlement of the matter. Law and security, then, are inseparable. You cannot have real rights without the capacity to present a real threat to aggressors who refuse peaceful settlement of disputes. In other words, if you steal my television, and I send you a notice saying, “You must appear in court regarding the matter of the theft of my television,” I must also be able to take forcible action in the event you refuse to settle the matter through non-violent means. Otherwise, you will simply ignore my summons.
So far, I have not mentioned the non-aggression principle. In the characterization of rights and law that I have presented so far, what is called the "non-aggression principle" follows from the simple fact that prior success in redrawing the boundaries of property does not constitute a valid verbal argument for the property lines remaining unchanged. If I steal your purse and you bring me to court, simply noting that I won the physical contest for your purse does not constitute a valid verbal argument for the purse remaining in my possession. It is, in fact, a circular argument. The point in contention is whether the outcome of that physical contest should remain unchanged. If I refuse to defend my actions or if I am unable to defend my actions in court (using reason, ethics and accepted principles of law), the ultimate recourse is a new martial contest. In other words, rejecting the non-aggression principle is no different than saying “I don’t care to settle this through non-violent means, let’s just settle this matter through martial contest.” Note that this argument is inspired by Hoppe’s argumentation ethics which is essentially a presuppositional approach to the non-aggression principle. However, I find Hoppe’s attempt to elevate the NAP to an axiom to be deficient because it is not useful to real parties to a real legal dispute, as noted above.
Stephan Kinsella follows what he terms an “estoppel approach” to argue that a party to a non-violent dispute must accept violence against himself in proportion to that which he has already used against his victim because he is “estopped” by his past actions, that is, he would be committing what Hoppe calls a “performative contradiction” to argue otherwise. This argument is deeply unsatisfying, not least because it is easy to wriggle out of Hoppe’s performative contradiction by accepting that one has acted as a hypocrite. So, no one would ever commit a crime worse than hypocrisy, which does not seem to me to be a very serious crime, if it is a crime at all. However, Kinsella’s approach falls on the same criterion that Rothbard’s, Friedman’s and Hoppe’s approaches fall – it is not useful to parties in a real legal dispute. One side need only reject the doctrine of estoppel, which is not a very large leap, since the doctrine is not even in use in modern law, as Kinsella himself admits.
This brings us to the issue of justifiable violence. We know that any violence which is accepted through a stipulated resolution reached through non-violent means (court) improves social welfare because the receiver of the violence preferred it to martial contest. The context in which the violence occurs – defense, pre-emptive attack or retaliation – is irrelevant to this point. All that matters is that the parties stipulate that one or both parties will be subjected to some level of violence as an alternative to martial contest. Even though the terms under which the dispute is resolved involve the use or justification of violence, we know that it is an improvement to social welfare because both parties preferred the stipulated agreement to martial contest.
Specifically, there are three categories of violence which I believe can be justified. Violence which may be justifiable could include defense from present attacks or threatened future attacks against person and property and retribution for past attacks. In other words, any violence which a party would accept as a non-violent resolution to a real dispute is justifiable violence. That is, all violence which is more acceptable than direct martial contest is valid violence.
First, there is defensive violence. Despite the significant focus by libertarians on violence used in self-defense, there is nothing inherent in self-defense that magically elevates it above all other forms of justifiable violence. A wider principle of non-violence would be the following: only interpersonal violence which corresponds to a valid property argument is justifiable. A valid property argument is one which has become a part of the canon of customary law. This means that individuals can expect that courts will rule that violence used in a manner consistent with customary law was justified and the only alternative to accepting justified violence will be martial contest. In other words, if you grab a woman’s purse and she strikes you and you sue her, customary law will likely rule that her use of violence to defend her property was justifiable and your use of violence to attempt to snatch her purse was not.
Defensive violence is used to stop a present attack. It is easy to see that defensive violence follows the principle “first, do no harm” since defensive violence causally reduces the use of violence. The person who uses violence to defend his person or property has demonstrably reduced the amount of violence in the world by halting or neutralizing the violence used by the aggressor. Defensive violence “nips in the bud” conflicts which arise from failure of property boundaries to avoid conflicts.
The second category of justifiable violence is pre-emptive attack. Pre-emptive attack is used in the neutralization of threatened future attacks. Note that a future attack need not be malicious to warrant pre-emptive attack. Actions which pose risks to others which they have not agreed to bear may justify pre-emptive attack. For example, setting up an M2 on a tripod in your front yard trained into my living room constitutes a threat (possibly not malicious) to my person and property which may justify the direct use of violence (for example, disabling or destroying the weapon).
The third category of justifiable violence is retaliation. However bad the retaliatory violence stipulated in the agreement may be (let’s say, a public whipping of 40 lashes), the punished party preferred that resolution to martial contest. Hence, we arrive at a conclusion which has evaded libertarian treatments of punishment: retributive violence can constitute an improvement in social welfare as evidenced by revealed preference. One corollary of this is that it is not likely that the death penalty would be justifiable retaliation since no one would ever accept a stipulated agreement in which they certainly die… better to take your chances with a martial contest in which you may only possibly die. The exception to this may be in clan societies where a family sacrifices one of its own for the sake of keeping the peace between the rival clan.
An open question is whether retaliation can be justified on the basis of past threats. Is it justifiable to fine someone for having endangered your person or property? If you set up the M2 in your front yard and then later take it down without incident, if I sue you, can I collect damages for the past threat, even though no real conflict (unilateral redrawing of property boundaries) occurred? Traffic tickets for speeding or DUI are an example of this sort of thing. Or, can threats only be neutralized “on the spot”, that is, with direct action? Perhaps it would turn out that I could justify taking a sledge hammer to the ammo feed on your M2 while it is pointed at my living room but I could not justify asking you to pay damages after the weapon has been removed.
What about stop signs private property? Can I be fined for driving past a stop sign on private property? The act of driving through the stop sign does not, in itself, constitute a violation of any of the property rights of the owner of the land on which the stop sign is situated since I am operating my property (the vehicle) as I see fit. However, a driver who was almost hit by virtue of my failure to observe the stop sign may have a case against me for endangering his life, at least, if retaliatory violence can be justified for past threats.
Since the court, in a private law society, is only selling its services as a mutually agreed-upon decision-maker, the rules which emerge governing what is justifiable violence will be those decisions which have in the past succeeded in settling disputes. That is, case law emerges out of the chaos of innumerable disputes and attempted resolutions of those disputes. Both the natural law and positive law approaches agree that a body of precedents will emerge from non-violent resolution of real conflicts in a private law society and that it is this body of decentralized dispute-resolution which becomes law per se. Rights and general laws emerge from the pattern of successful resolution of past real conflicts by non-violent means, just as common law developed in England and the US prior to the creation of legislatures.
Appendix on Voluntary Slavery
Rothbard uses the principle that promise does not constitute contract to argue that voluntary slavery is impossible, since the “voluntary” slave may at any future point renege on his promise to be a slave. Block counters that voluntary slavery ought to be valid since it is valuable, that is, there are cases where it would be worthwhile for someone to choose to enslave themselves to another person. In line with my analysis of law, the key issue is the slave’s capacity to present a threat to his master in order to bring his master to court. In the case of a victim of crime, the victim may hire a security agency to backstop the summons to court… failure to go to court can result in direct retaliation by the victim’s security agency. In the case of a slave, if a dispute arises, the slave may be unable to hire a security agency to backstop his case.
If the slave can hire a security agency to backstop his case, then the master has a reason to go to court. In this case, the slave has rights, because a property dispute (whether the slave must, indeed, remain a slave) is being argued verbally, that is, a non-violent resolution is being sought. It is doubtful that the slave will accept Block’s social welfare argument (society benefits if voluntary slave contracts are enforceable), that is, the slave will always prefer martial contest to accepting the principle of voluntary slavery, even if he has signed away his rights in a voluntary slavery contract.
It seems to me that voluntary slavery really can go either way in a private law society and it depends on the court and security services. Perhaps all respectable courts would reject the principle of voluntary slavery. In that case, it would be impossible to find a court that would uphold a voluntary slave contract and any slave that could obtain security services might be able to emancipate himself and even bring his would-be owner to court for kidnapping or false imprisonment. On the other hand, it could emerge that courts would find that voluntary slavery was sufficiently beneficial to society that voluntary slave contracts must be upheld. In this view, the slave would still retain rights (because he could take his master to court), but the rights held would only be the “right to non-violent dispute resolution”, since the courts would uphold the general abrogation of the slave’s human rights within the slave contract. In any case, the slave who can retain protection will always have the right to a trial. Consider a falsely enslaved individual – the slaveholder claims the individual is legitimately his property but the enslaved individual contests this. Surely, the enslaved individual has as much right to have the slaveholder’s claims reviewed by a court of law as anyone else. The key issue is his ability to present a sufficient threat (hire a defense agency willing to backstop his case) to the slaveholder to motivate him to go to court.
Appendix on False Accusations
False accusations are themselves a crime… [work in progress]
5 I am taking this as a point of faith, Hoppe justifies this position in his writings [looking for cite…]
7 It could be argued that the doctrine of estoppel would become part of the body of law in a private law society but my observation is not with respect to the content of law (specific legal precedents or arguments), rather, it is an existential observation… if a party refuses to accept an arbitrator who applies estoppel, there can be no non-violent resolution of the dispute on the basis of an argument based on the principle of estoppel.
Errata: Missing cite for Kinsella's definition of property: http://www.stephankinsella.com/2009/08/09/why-airwaves-are-arguably-property/
Missing cite for Kinsella's application of estoppel: http://mises.org/journals/jls/12_1/12_1_3.pdf
Missing cite for Kinsella's application of estoppel: http://mises.org/journals/jls/12_1/12_1_3.pdf
 I am taking this as a point of faith, Hoppe justifies this position in his writings [looking for cite…]
 It could be argued that the doctrine of estoppel would become part of the body of law in a private law society but my observation is not with respect to the content of law (specific legal precedents or arguments), rather, it is an existential observation… if a party refuses to accept an arbitrator who applies estoppel, there can be no non-violent resolution of the dispute on the basis of an argument based on the principle of estoppel.