Critique of Private Law
I don't think it's worth a rebuttal (or is it a rejoinder?), but anyway here's a funny critique of my article on private law. (Be sure to note the connection between my stance and the hunger blockade of Iraq.)
Libertarians, My Libertarians!
Cruel to be kind means that I love you . Because, while I think you are mistaken, your hearts are in the right place -- yes, even you, Silas -- unlike some people . This Breitbart fellow (discussed in the link above), by all appearances, deliberately doctored a video of Shirley Sherrod to make her remarks appear virulently racist, when they had, in fact, the opposite import. I heard that at a recent Austrian conference, some folks were talking about "Callahan's conservative turn." While that description is not entirely inaccurate, I must say that a lot of these people who today call themselves conservative give me the heebie-jeebies.
In law, rejoinder refers to the fourth round of pleadings, viz:
ReplyDelete1. Claim.
2. Defence
3. Reply
4. Rejoinder
5. Surrejoinder
So since your response would be the third round in the debate, it would be a Reply rather than a Rejoinder.
Not a lot of people know that ;-)
Cronkite's argument must be a spoof -- in order to justify the State, he presents line after line of bad things done by State's!
ReplyDeleteMr Murphy, you (and many others) have a naive view of the law. Dispute resolution is not a first principle and ignores whole chunks of jurisdiction: equity, bankruptcy, family law, probate, product liability, drunk driving.
ReplyDeleteWolf DeVoon
http://wolfdevoon.tripod.com
Wolf DeVoon writes: "Dispute resolution is not a first principle and ignores whole chunks of jurisdiction: equity, bankruptcy, family law, probate, product liability, drunk driving."
ReplyDeleteBankruptcy: dispute resolution.
Family law: dispute resolution.
Product liability: dispute resolution.
The rest arguably are as well.
I'm not sure what Mr. Devoon is getting at. Litigation is one form of dispute litigation (others are mediation, arbitration etc).
ReplyDeleteIt may be that Mr. Devoon means to imply that an anarchic system would be unable to handle certain kinds of disputes. But I cannot see why that should be so. To the contrary, the lower cost and greater innovation resulting from competition between courts, would surely tend to facilitate dispute resolution across the board?
Julius
"dispute litigation" should of course read "dispute resolution"
ReplyDeleteBankruptcy is indisputable. The idea is to discharge and hold harmless, after equitable distribution of debtor assets to creditors.
ReplyDeleteFamily law contemplates child welfare, which flows from the principle of human rights, not dispute resolution.
Product liability is certainly not dispute resolution, because ancap theorists routinely rely on disclaimer and caveat emptor to wave away liability. There is no arbitration among a class of consumers and producers who never pledged an obligation.
Arbitration presupposes a contract that can be interpreted and construed. Mediation is ineffectual without voluntary submission. Neither of them can compel testimony, summon a jury, punish crime, restrain or compel equitable action.
The first principle of law is due process, not private agreements.
I don't think we are disagreeing much. Plainly not all dispute resolution procedures can be grounded in private agreements. As you rightly say, arbitration and mediation presuppose prior consent. And even in the case of arbitration, consent to the process does not always entail the volunary honouring of an arbitration award!
ReplyDeleteIt follows that any legal system, whether ancap or otherwise, must make provision for compulsory processes in those cases where parties are unwilling or even absent. The most obvious example is of course the enforcement of judgments (though there may be other elements).
However, this does not mean that private competing courts would be unworkable. To the contrary, competition between courts is surely the best way to arrive at procedures that are both generally acceptable and economical.
I don't think it is possible to define in advance what those procedures might be - for example I would hesitate to say that compulsory testimony or the summoning as juries would be inevitable elements of libertarian courts - although no doubt many elements of our existing procedures - particularly those derived from the common law - would be used as a starting point.
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