News

Loading...

Monday, October 01, 2012

Well, the Essay Makes Me Feel a Little Queasy, Anyway

Here:

"Under ordinary circumstances, if we’re planning an evening out and discussing what movie to see, it’s understood that if we cannot reach agreement on a particular film there is always the possibility of cancelling our plans and heading off to separate movies. The possibility that, in the event that consensus is not achieved, one of us might simply compel the other, by force or the threat thereof, to go to a particular movie is simply not contemplated. Discourse and persuasion in the legislative arena, by contrast, take place under the shadow of the truncheon and the gun; these conversations have a winner, and the losers are conscripted into the winners’ projects. The whole process of discussion has as its aim and presuppositon the externalisation of the costs, and internalisation of the benefits, winners’ favoured schemes. Legislation – at least the kind of legislation practised by states – is not an alternative to violence but is rather a mode of violence."

OK, so what about the kind of legislation practiced by non-states? Let's look at some issues that private law-dispensing entities (of whatever sort one may imagine) will face in ancapistan:

Can one take title to property through adverse possession? If so, adverse possession for what span of time? A year? Seven years? One hundred years?

How does homesteading take place? Is merely fencing some land enough to claim it? Do I need to fence it and "work" it, and how much work is necessary? Is planting a bean plant per acre enough?

Is barbecuing in a way that emits smoke onto my neighbor's property a property rights violation? Is this so for any amount of smoke, no matter how small? Does it make a difference if my neighbor has asthma? If you think none of these are serious questions, what about opening a smelting plant that gives my neighbor asthma? If the latter is a rights violation but the former not, where is the line drawn?

I am allowed to go out on my lawn, in clear view of my neighbors, and perform sexual acts with the goal of using their shock to increase my arousal?

It seems there must be some age below which one cannot consent to a sexual act. But what age is that? Should there be a hard-and-fast cutoff, or should it be based on judgments about the minors "maturity"? If the latter, who should make such judgments and how?

And what about selling heroin to a five-year-old child? If that's not cool, what age is? You say it depends on the parents' consent? Well, what if the parents don't consent when the kid is 40?

Whatever entities are making ancap law, when they decide questions like the above, they will be legislating. In any such legislation concerning these contested matters, "discourse and persuasion... take place under the shadow of the truncheon and the gun; these conversations have a winner, and the losers are conscripted into the winners’ projects." The people who believe smelting is not a rights violation lose out to those who do, or vice-versa, and the winner intends to enforce the verdict on the loser if the loser does not lose gracefully. The agreements reached are as voluntary as the losers are willing to concede defeat and as coercive as their intent to continue fighting... just like the result of an election is. If the ancap legislative process works out that the proper period for claiming adverse possession is twenty years, the person who thinks it should be only ten years has lost, and if he won't concede defeat willingly and vacate the land he is on, the truncheon (whatever the hell a truncheon is) and the gun will be wielded to make him concede defeat.

Perhaps ancapistan's legislative process will be far superior to that of existing states. Perhaps it will arrive at more just laws. Perhaps it will allow a greater experimentation in legal systems, to the benefit of all. Perhaps ancapistan will not face the temptation to make law over matters that could better be worked out through informal social interaction, as states often are tempted. Those are interesting discussions to have, but we can't have them if anarchists keep insisting on distinctions without a difference, as Long does above. The fundamental coercion for which he blames the state is, in fact, an essential characteristic of law itself -- otherwise what we have are not laws but suggestions! We can have anarchy in the "bad" sense of lawlessness, or we can have law and the coercion which is fundamental to its nature. We cannot have our laws and eat them too.

4 comments:

  1. Gene, first, when you read "truncheon", think "billy club".

    Something often lost in the ancap discussions is the fact that we already live in a society. We in the Anglosphere share more than a thousand years of Common Law, which through tradition and decision gives us a basis for resolving many if not most of the problems of interpersonal conflict.

    While you are correct that the adjudicator in an ancap court (for want of a better word) is _in_effect_ legislating, they are not legislating _in_fact_. No other adjudicator is bound by that decision, only informed by it. That's why it's not coercive.

    Good judgements will spread, while bad judgements will lead to people not hiring that/those adjudicators, and not taking those bad judgements as precedent.

    On "age of consent", I have had an idea that I believe resolves much of the difficulties.

    Sue for majority.

    There is no longer a firm, recognized "right of passage" in our society. The Jewish Bar/Bat-mitzva was, but isn't legally recognized; when I grew up it was graduating from highschool. Either I had a job or had chosen to go on to college, but either way once that graduation took place I was out the door and on the road. But this is more and more not the case in the declining economy.

    So, sue for majority. Bring suit before an adjudicator, with notice published in the local paper (or whatever it turns out to be), and if Doogie Houser at 14 years old demonstrates (by graduating medical school and entering practice, etc) that he is responsible for himself, by whatever standards the community evolves, then he is judged an adult by the standards of that community.

    At the same time, Rain Man Raymond either never is adjudicated an adult, or is demonstrably incapable of responsible self determination because of his condition. He remains under someone's care and responsibility.

    The 40 year old who cannot marry because his parents won't give permission does not occur, not because of arbitrary legislation but through community standards.

    Law (using the term very loosely) is irrelevant without society. Community standards are just as much "law" as any other, because people are judged by them.

    I would much prefer to live in a society where dead-goat-sex wasn't punished, because such a society would obviously not care what color I painted my front door, or if I grew a garden instead of grass on my front lawn where (gasp!) people could see it.

    "otherwise what we have are not laws but suggestions!"

    Exactly. And that is just fine by me.

    ReplyDelete
    Replies
    1. "While you are correct that the adjudicator in an ancap court (for want of a better word) is _in_effect_ legislating, they are not legislating _in_fact_."

      Either they are making law, and thus legislating, or all we have is a series of one off decisions, which is the chaotic situation that led people to demand law in the first place.

      "No other adjudicator is bound by that decision, only informed by it. That's why it's not coercive."

      Huh?! So what happens to the guy who thinks adverse possession is just after ten years when the adjudicator decides the right number is twenty? If he tries to stay, he won't be coerced off of the land?

      "because such a society would obviously not care what color I painted my front door"

      Oddly, it is in private communities where they seem to care the very most about what color you paint your door!

      "Exactly. And that is just fine by me."

      So, you're OK with just *suggesting* that a rapist leave your daughter alone, rather than having any actual law against rape?

      Delete
    2. "the chaotic situation that led people to demand law in the first place."

      When and where did this happen?

      Delete
    3. There are three famous instances:

      In Athens with the reforms of Dracon.

      In Rome with the Twelve Tables.

      English Common Law. (Which, contra Hayek, was based on the king's attempt to create laws "common" to the country as a whole.)

      What generally happened earlier were somewhat arbitrary decisions by local mucky-mucks, where rulings typically came down much harder on the poor than on the upper class.

      Delete