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Sunday, May 20, 2012

"Before I'll Follow the Law...

"The law must contain no errors."

I sometimes see a position implying this in posts by libertarians who claim that, say, they needn't follow a law forbidding, say, speeding, because positive law should be a pure expression of natural law, and whenever the positive law is not such, it is morally acceptable to ignore it.

But this just won't do, unless one is an anarchist in the sense of "I don't want any social order at all." Let us set aside  the state, and imagine a private ancap community. That community will have laws (unless it is anarchist in the sense just mentioned, in which case it surely won't be a community!), and a mechanism for enforcing those laws. (You might see Bob Murphy's Chaos Theory for one such anarchist legal system.)

Let us imagine that one of the laws forbids creating a public nuisance in one's yard, and lists the penalty if the community decides one has done so, and the method for so deciding. Now, it is decided (by whatever the proper procedure for such decisions may be) that the smoke from backyard barbecues is just such a nuisance. But to your mind, this is a perversion of the principle you had agreed to... and you love barbecues! Since you think this new law (or new interpretation of an old law) is a violation of your rights, you do not have to obey it.

But, of course, the community has to enforce the law, or soon it won't have laws, but only suggestions. And if you resist that enforcement, eventually they will have to employ violence to subdue you. And if this happens enough, civil society has broken down, and we would be in the bad sort of anarchy despite intending the good sort.

So, our default position must be that positive law should be obeyed. The only major exception to this would be if the positive law commands evil: e.g., the law commands you to turn in your Jewish neighbors to the Gestapo. But there is nothing evil about not holding barbecues, or driving within the speed limit. In those cases, one is morally culpable for violating the positive law, even if one disagrees with it.

We are fallible humans, and the positive law will always contain errors.  To say we won't follow it unless it is perfect is simply to say we won't follow it, period.

22 comments:

  1. The difference lies in property ownership and contract. Yes, in a stateless society as envisioned by libertarians there will be laws, some of them entirely positive and arbitrary. However, the people making such laws actually own that property and are the final arbiters of its use and can contract with fellow property owners around them to create laws very similar to that found in statist communities.

    Obviously, libertarians don't believe that collective ownership exists or is even possible, so this is the root cause of our disdain for statutory laws laid out by the state or its subdivisions, there is no property owner yet we are to follow arbitrary rules over the use of the property. At least, that is the way I have always looked at it.

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    1. There's nothing special about property ownership and contract, though. Or say, they're the outputs of a social/political system, not its inputs.

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    2. Abolish private property and see what happens...

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    3. Huh?! Was someone recommending abolishing private property?

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    4. Clearly, Gene, if we exclude the middle, a statement that private property isn't the ultimate value is equivalent to a claim that is of no value.

      Separately, it's hard to find a good antonym for "fallacy!"

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    5. He's saying that it is an output of society, which tells me that society, in its current form, could survive and/or improve if private property is abolished (i.e. society can exist prior to). However, if it is an input, then society surely collapses when private property is abolished.

      I personally don't look upon society as some blob, nor do I think that private property or contract are part of an input or an output. Rather, I think it is more of a web of feedback loops that form somewhat of a balance. However, I do believe that there are certain laws of human nature that can yield a more beneficial affect upon all of society. I believe that private property is one of these. In fact, I think that private property is central to the self and that it probably appeared around the same time as consiousness, though I cannot prove this.

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    6. "Rather, I think it is more of a web of feedback loops that form somewhat of a balance."

      Right, and I would guess Jim was giving a simplified model. But look, saying the exact form of property rights is a social construct is a lot different than saying, "Therefore, any old form will do."

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    7. Yes, I understand that . It is my belief that even the conception of any other form of ownership is preceded by private property. In other words, if a human conceives of ANY property at all, it will be HIS property (most likely in the form of the self). Either way, what currently prevails in the majority of societies is a private property system.

      Just to give you a little different aspect as to how I looked at this, imagine a schematic for an amplifier circuit. Obviously, the entire purpose of the inputs is to have the output. What Jim is essentially saying is that property (of any type) is the desirable end product, that it's not one of the things that makes a desirable end product possible. To me, this is like saying the amp's purpose is to produce guitar strings.

      I personally don't think it is possible for two conscious beings to cooperate without some concept of property, and also that society is dependent upon cooperation to exist.

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    8. "It is my belief that even the conception of any other form of ownership is preceded by private property."

      Maybe, but I doubt it. I think the first property was probably clan property, and private property only evolved later from that.

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    9. Well, I am aware of anthropological studies that say that communal property preceded private property. However, we don't know whether those beings that they were looking at were conscious as we are or not. Also, we don't know whether they understood private property, but decided that sharing was the best course of action. One thing that I do know is that current humans tend to know "mine" before "ours", and typically only share out of personal kindness rather than any sort of inherent aspect of the societal structure.

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  2. "Obviously, libertarians don't believe that collective ownership exists or is even possible, so this is the root cause of our disdain for statutory laws laid out by the state or its subdivisions..."

    No, the root cause is a teenage anxiety about authority. The above is the *excuse*. (It may seem mean of me to say this, but given that my analysis is correct, it is actually kind: identifying the real problem is the first step in treating it.)

    And, and by the way, just which libertarians think collective ownership can't exist?! Here is Kevin Carson writing a whole book about its existence!

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    1. To be fair to everybody here Kevin Carson isn't the first guy I'd go to to gauge what libertarians generally think (not because he's not one, but because he wrote a book on the labor theory of value) .

      Fortunately Stephen Kinsella does us the favor in the comment section of pointing out several other relatively prominent libertarians who argue such a thing can exist.

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    2. I actually did read those. And, if you look at the one by Holcombe, you find that his example is the thoroughfares between businesses. He states that this is common property, but I think that is ridiculous. Rather, thoroughfares are private property that the owners have seen fit to allow others to use for mutual benefit. This isn't too much different than a business putting a butt-can outside their door so that smokers don't litter his entrance with cigarette butts.

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  3. I will disagree with your first point, but I won't give it the respect of elaborating my disagreement. Instead I will just call you a poopy head and say that you're stinky.

    On your second point, the conflict with collective ownership as I understand it has to do with a logical impossibility, that no two entities can own one single thing equally. I don't know much about Carson (I'll look into his book), but I look at most disagreements on this point as the difference between perception and reality.

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    1. "On your second point, the conflict with collective ownership as I understand it has to do with a logical impossibility, that no two entities can own one single thing equally."

      My wife and I own our house equally: we have done the impossible!

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    2. So, if she sold it, that wouldn't affect you? I'm not talking about shares here.

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    3. "…but I look at most disagreements on this point as the difference between perception and reality."

      I agree, but we probably disagree on who is on what side.

      "So, if she sold it, that wouldn't affect you?"

      How in the world does that negate bonded ownership?

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  4. "I will disagree with your first point, but I won't give it the respect of elaborating my disagreement. Instead I will just call you a poopy head and say that you're stinky."

    Very funny. But the difference is this: The literature on why the existing positive law, even if one does not approve of it, ought to be (generally) obeyed, and certainly not disdained, is massive and totally decisive on this point. But there is no sense in me rehearsing these arguments, as if you won't listen to Plato, Aristotle, St. Paul, Augustine, Aquinas, Luther, Hooker, Hobbes, etc., then why would you listen to me?

    So now, the question becomes, "Why don't anarchists heed all of these arguments?"

    Well, here, the answer is easy, because I just need to look in my own heart and see why *I* resisted them for so long: it is the same reason Satan rebelled and fell: "I will have no authority over me!"

    And, having realized this is the problem, it would be an act of extreme unkindness on my part not to share this understanding. Far from calling you a "poopy head," I am trying to give you a chance to get out of a trap I was in for far longer than you have been!

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  5. Gene, I'm really glad you use speeding as your example, because it actually let's us get pretty deeply into this question. Because we all know that speed limit laws are meant to be disobeyed, at the letter of the law. Not the legislatures, not the planning boards, not the police, not any driver lacking an AARP card means for the posted speed limit to be the last word in the de facto legality of your speed on the road at any given point in time or space.

    I don't know if that's always been true. But it's been true as long as I've been driving, which is [mumble] years.

    But of course the issue doesn't end there! Because there's clearly, always an unposted speed limit, above which you really are not to go. It is some speed more than "1-9 miles per hour" above the posted speed limit; though it's usually measurably more than that: IOW, 10MPH probably doesn't count; 20MPH certainly does; 15MPH usually does. (Dave Barry wrote a classic column about trying to get the state police to tell him the real speed limit for a particular road, and while they acknowledged that there was one, they wouldn't say what it was.)

    How does this class of - tacit law? fit into your schema? I can imagine a couple of ways.

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    1. Jim, good questions -- and I've got no easy answers, except that... a polity is already in a pretty bad way when legislators are passing laws they never mean anyone to follow!

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  6. If someone owned the road, they could establish a "speed limit". The State owns nothing it did not steal or "purchase" with stolen money. A thief doesn't get to determine the use of the stolen property. Going faster than the posted speed doesn't harm anyone, and isn't even a credible threat of harm. Going slower than the "speed limit" can be just as dangerous. But in both cases, until there is actual harm there is no victim. So who is owed the "fine"? The State is not a victim, so it certainly shouldn't get "restitution"- if that were really what a "fine" was, which it isn't, since, once again, no one has been harmed. A "fine" is a "tax", and stopping travelers is just an excuse to get to examine their papers and look for some justification to kidnap them into the "justice" system, where they can be milked for even more money and subjected to even more control. Any actual road owner would never behave in that manner, even if he did set a "speed limit" on his road. If he did, a competitor would build a new road so that people could avoid the moron who had visions of "Authority".

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    1. Joseph, you see what I mean?

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