Thursday, January 28, 2010

Intellectual property is the essence of the State's self-delegated authority

There are a variety of manifestations of intellectual property - trademarks, copyrights, patents. Many things can be copyrighted and patented ... even business methods can be copyrighted! Famously, Amazon patented its so-called "1-click" purchase option, threatening other online sellers who dared to imitate its brilliant invention with lawsuits!

Leaving aside conceptual definitions of IP, what are its ultimate effects? The ultimate effects of IP are to prohibit certain sorts of actions by individuals which are construed to be violations of the "intellectual property" rights of others.

Now, the essence of property - in a Hoppean/Rothbardian conception - is to assign rights to exclusive use of a physical resource to a specific individual. If John owns a car, that means John has the exclusive right to operate and control the car and to determine who else is allowed to operate and control the car. When the State arrogates to itself the authority to license John's operation of his own property, the State is actually aggressing against John by infringing on the exclusivity of John's rights to operate and control his car.

But does this mean John is free to do anything he likes with his car, lest we commit the unpardonable sin of aggressing against John's all-hallowed "liberty"? No - if John uses his property in such a way that it interferes with the exclusive rights of another individual to control their own property, John is aggressing against that individual and they, thereby, have justification for the use of force against John to prevent him from using his property in that way (or taking him to court to seek retaliation against him). But the State, in licensing (or not) John's use of his own property is not suffering from any interference on John's part. If John refuses to be licensed, this does not harm any State property or anyone else's property, for that matter. The dispute between the State and John - regarding licensure of the use of his vehicle - is completely gratuitous. Gratuitous disputes can and will arise even in the absence of an aggressive State but those who initiate such gratuitous disputes at least have to bear the costs of their decision to harass a peaceful citizen. Gratuitous disputes which are subsidized by the State, on the other hand, pass the costs off onto the taxpayer - explaining why gratuitous disputes (e.g. victimless crimes) are far more numerous than disputes originating from property conflicts.

Intellectual property, in my opinion, is a form of gratuitous dispute. I say "in my opinion" because it's impossible to know in the absence of a market in law. The only way to know for sure is to have a free market in law. In a free market of law, I believe that the costs of pursuing such gratuitous disputes would swamp any possible benefits which could be garnered. It is only the subsidization of intellectual property claimants* by the State that makes such enterprises profitable. If a musical band recorded themselves in a studio to CD and released the CD in a stateless society, who would combat the "pirating" of the band's CD once they released it to the public? In each case, they would have to bring individual lawsuits against every individual who they deem to have "illegally" copied their IP. Such legal action would be prohibitively expensive (witness the RIAA's losing battle to legally intimidate people into not copying songs... and that with the aid of State subsidy!) One could take a Coasean approach and say that this, in itself, proves that IP should not be considered property but something deeper is at stake and that is that all property rights consist of rights to exclusive control of scarce physical resources for the purpose of avoiding conflicts. Expanding the definition of property to include intangibles - such as numbers, images, patterns, business methods, and so on, results in the multiplication of conflicts.

Gratuitous conflicts are the essence of State-delegated authority - look at the number of persons filling our prisons for "crimes" related to the possession, distribution and consumption of marijuana or other drugs. Whenever the State issues and enforces statutory or regulatory dictates - "Thou shalt ____" or "Thou shalt not ___" - it is creating gratuitous conflict. This is why I say that intellectual property is the essence of the State's self-delegated authority. Ordering people around like they are slaves is what the State does and intellectual property is just one example, among millions, of this.

In a competitive law society, we would expect that only those conflicts which it is profitable to prosecute would be prosecuted. A family seeking retaliation against a murdered family member will pay the costs (or their crime-insurance agency will) needed to convict the perpetrator, making such prosecution profitable. Victims of theft or assault will be able to profitably sell claims to repossession and retribution against their aggressor to for-profit bounty/repo businesses. But the reason that these things can be profitably done is exactly because they concern the allocation of scarce resources. Just like nobody can profitably sell air, so no one could profitably prosecute violations of perceived IP.

Finally, it is conceivable that societies of individuals who value ultra-high-quality media - and are willing to pay for the privilege to consume it - could develop. For example, perhaps you could have an enclave of blockbuster movie addicts who live in the Hollywood area and, as part of the contractual agreement to owning property in that region, they agree to abide by what is essentially IP law. Tourists might travel to the territory - a "Las Vegas for blockbuster buffs" - to get a taste of the rich media experiences which can only exist in a territory with ironclad IP rights. This would not be unlike other enclave communities that would likely develop around cult religions, anachronistic religions or tribal economics, such as the FLDS, Amish or anarcho-communes. There is nothing inherently anti-liberal about this, so long as these enclaves do not become aggressive and attempt to export the costs of their irrational social structures onto individuals living outside their territory. But it is highly unlikely, in my opinion, that international private law would ever recognize and enforce such bizarre legal rules.

*For example, the FBI warning regarding piracy at the opening of every Hollywood movie - who pays for the vigorous investigation and prosecution of piracy by the FBI? Not Hollywood... we do!

Wednesday, January 27, 2010

Get a degree in Homeland Security!

What the hell??

Government = Mafia

Case closed.

LA declares war on Mary Jane

Well, it looks like the Prohibitionists aren't giving up on California without a fight. LA city council voted 9-3 to impose heavy new regulations on medical marijuana distribution centers, including capping the total number of distribution centers in the city to 70 (there are currently estimated to be 800 to 1000 in the city). This is disappointing, as California has thumbed its nose at Washington more than any single state with its de facto nullification of Federal drug laws on marijuana. We'll just have to sit back and see how this one turns out. It will be a good barometer of the strength or weakness of US drug policy. If the Feds can be defied in California, they can be defied almost anywhere... and if that starts happening, our international drug policy will begin crumbling around the world. The repercussions would be widely felt.

Spending cap

This spending cap is a joke. It only applies to a tiny fraction of the Federal budget... $350B out of, what, close to $4T? Exempt are DHS, DoD and foreign aid. How transparent can you get? US gov won't stop sending more welfare to international bankers (through foreign aid) and won't stop spending even more on its already ridiculously outsized war budget. The charade is getting to be downright unbearable. I would prefer it, for sanity's sake, if these assholes would just own up... "yes, we're bilking you for close to 50% of everything you earn because we can... so get used to it." At least I could have the satisfaction of bitching about it and having everyone in the room nod their heads in agreement. How do they pull this off?? I'm in the wrong line of work.

Tuesday, January 19, 2010

What Law Is

Law

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[1] 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[2], 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[3], 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[4],

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[5].

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[6] 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 Marie Byrd Land, which is not claimed by any sovereign nation. Who owns it? These questions open up the larger question of how any physical thing came to be owned in the first place. I can give no good reason why I have rights to exclusive use of some portion of the Moon or a portion of Marie Byrd Land. So, no portion of the moon or Marie Byrd Land is my property.

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 US legal system makes this presumption very explicit. Given that the parties to the dispute are only in court to avoid physical conflict, in a private law society, this is not a very strong assumption. But this assumption leads to the breakdown of both the natural law (Rothbardian) and positive law (Friedmanian) approach to anarchic or private law. Friedman presents the case that anarchic law leads to the best or most efficient outcome for society. That is, Friedman is arguing from the point of view of social justice or social welfare. But this approach assumes that the individual cares about social welfare. That is, by presenting his arguments for anarchist law in the frame of how it improves social welfare, Friedman is assuming that the reader – and by implication anyone who is trying to ascertain what the law is and ought to be – cares about social justice or social welfare. This may accurately describe the typical, liberal academic but those most affected by the question of what the law is – real participants in real legal disputes – are not likely to share the same proclivity for social justice wherever it conflicts with their own interests. Since law, in a private law society, is the production of voluntary, non-violent resolutions to real disputes, only a definition of law which is acceptable to adversarial, self-interested individuals will suffice.

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[7], 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]

[1] http://courts.oregon.gov/OJD/aboutus/courtsintro/index.page?

2 http://www.lewrockwell.com/hoppe/hoppe18.html

3 http://www.daviddfriedman.com/Libertarian/On_Hoppe.html

4 http://mises.org/story/2265

5 I am taking this as a point of faith, Hoppe justifies this position in his writings [looking for cite…]

6 http://mises.org/story/2569

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



[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.