You Can't Be Breaking the Rules When You Are Creating the Rules!


So, we received this interesting comment from Bob Murphy:

"Right, and if an NBA referee got caught throwing a game because a gambler paid him under the table, I'm sure you and Argosy Jones would laugh your heads off at the idiots claiming that was somehow "cheating" or "against the rules." Anything goes in the private sector! The winner is whoever pays the most to the judge, duh."

Of course, this was not at all what Argosy Jones and I contended: what we noted was that under some popular versions of anarcho-capitalism, what laws are "best" should be determined by supply-and-demand factors, just as we determine what sorts of bread should be made and how many massage therapists we "need." And if someone declares that is how law should be made, it is hard to see what their objection is if, under some future anarcho-capitalist system, Microsoft, Disney, Monsanto, etc. decide that our current intellectual property laws are way too weak, and pay billions to ancap defense agencies to enforce even stronger IP protection than we now have. In doing so, these companies would not be acting "against the rules": the rules are supposed to be determined by market forces, and all they are doing is "voting" for rules they prefer with their own dollars.

What is fascinating here is that Murphy, in writing the above comment, is apparently unaware of the work of this important anarcho-capitalist writer, who declared that "Profitability is the standard" by which we should judge law, and that there is no need to worry about what rules we ought to have: we can "let the market take care of it, automatically." In the scenario I just described, the ancap defense agencies are doing just what they ought to, according to the above-linked writer: they are letting profitability be the standard as to what the law should be. I recommend Murphy pick up a copy of that book and fully absorb its lessons.

55 comments:

  1. What is fascinating here is that Murphy, in writing the above comment, is apparently unaware of the work of this important anarcho-capitalist writer, who declared that "Profitability is the standard" by which we should judge law, and that there is no need to worry about what rules we ought to have: we can "let the market take care of it, automatically."

    I know libertarians like to claim that profit isn't a core principle of their ideology, but it's really hard to believe that when they write stuff like that.

    ReplyDelete
  2. The idea of letting markets decide laws seems almost akin to tyranny of the majority.

    ReplyDelete
  3. "under popular versions of anarcho-capitalism, what laws are "best" should be determined by supply-and-demand factors"

    But 'supply and demand factors' depend on the distribution of ownership, which is determined by law.
    i.e. the law determines who owns what, and this determines 'supply and demand factors'.

    So how can law be determined by supply and demand factors, given that law determines supply and demand factors?

    ReplyDelete
    Replies
    1. That is certainly another problem with ancap! Just not the subject problem of this post.

      Delete
    2. Hence the Rothbardian insistence on the mystical fancy they call homsteading. Murphy has written about taking a deductive and a priori approach to property rights.
      Of course in terms of this problem the cure is even worse than the disease.

      Delete
  4. I'm not sure that's a fair characterization of Rothbardian ancap. I think the idea is that the market determines which laws best effect the ancap ideal of justice. Not that the definition of justice is available to the highest bidder.

    "Okay then, call it what you will: the rich would just buy unjust laws, and who can stop them?"

    Fair point. They arguably can and do buy unjust laws today. Under which system do they have less ability to do so? I am skeptical that the current distribution of wealth would result in a fairer outcome.

    There is also the problem that both systems ultimately rely upon the masses to hold the rich and powerful accountable (whether or not they are elected). In ancap, if people don't demand consistent systems of justice with their pocketbook, they won't get them. I worry that many people would choose serfdom if it was well-marketed.

    ReplyDelete
    Replies
    1. "I'm not sure that's a fair characterization of Rothbardian ancap."

      Right: that's why I mentioned "versions" I should have added "sone," and will do so now.

      Delete
    2. "I think the idea is that the market determines which laws best effect the ancap ideal of justice"

      But you can't BOTH "leave law to the market" AND determine in advance what laws it will produce: "entrepreneurs can produce anything they choose... So long as it is dairy products!" And just WHO will be making sure the market produces Rothbardian laws? The central planning bureau?

      And there is no "ancap rules of justice": there are multiple competing visions with strong disagreements between them. So who gets to provide this overarching framework? Rothbard? Hoppe, who thinks it is fine to arrest anyone promoting democracy? Block, who ok with murder park? Woods? Long? Friedman? When skeptics ask this, we are often told "Don't worry this will emerge on the market"!!

      Delete
    3. There's no such thing as "demanding consistent systems of justice with your pocketbook". It's just nonsense.

      Delete
    4. Finally, Matt, my point is it simply won't matter what "the masses" want under ancap in terms of, say, IP: they will be so massively outspent by companies with a huge interest in it that they will get strong IP protection whatever they want.

      Delete
    5. Justice is not a service or a product that you can purchase. It is a concept, an idea about what is morally right.

      Saying that "the market" should determine what the law is, is completely nonsensical, as "the market" is itself based on law.

      Delete
    6. "But you can't BOTH "leave law to the market" AND determine in advance what laws it will produce"

      Well, you are:

      "they will be so massively outspent by companies with a huge interest in it that they will get strong IP protection whatever they want."

      I think it is fair to reason about the types of laws that would be produced under ancap. If the money is behind Rothbard's vision, we would get laws close to that.

      But that leads to your main point, which I agree with: justice would be skewed in favor of wherever the concentration of wealth lies.

      Delete
    7. Matt, I am PREDICTING what will be produced, not DETERMINING (= controlling) it.

      Delete
    8. Justice is not bought and sold. It is executed. This can the form of a mob, a formal legal system, a vigilante, or a paramilitary group, but it is never, ever a commodity. People who want justice will not buy it on the market. They will plan, organize, mobilize, and kick ass.

      Delete
  5. "Justice is not a service or a product that you can purchase. It is a concept, an idea about what is morally right."

    Mr., that is very much my point. "The law" is not the same thing as "justice". The way I see it, ancap presumes a common vision of justice that most people share. The law is the product they buy in pursuit of that vision.

    ReplyDelete
    Replies
    1. Law. Is. Not. A. Commodity. Either.

      Delete
  6. "ancap presumes a common vision of justice that most people share."

    Practically no one shares the ancap (so-called) vision of justice.

    "The law is the product they buy in pursuit of that vision."

    But private property and markets presuppose the existence of a system of law. How can private property and markets determine what the law is, if they are themselves determined by law?

    ReplyDelete
    Replies
    1. "Practically no one shares the ancap (so-called) vision of justice."

      Agreed, and I see it as a big problem with ancap that enough people would need to want it and continue to want it.

      "But private property and markets presuppose the existence of a system of law. How can private property and markets determine what the law is, if they are themselves determined by law?"

      I wouldn't want to live in drug cartel land, but you have to admit that they are able to respect property rights and conduct exchange. That's either in the absence of law, or with their own emergent system of law, depending on how you want to look at it.

      There are other examples. It seems more likely to me that law coevolves with the market.

      Delete
    2. "I wouldn't want to live in drug cartel land, but you have to admit that they are able to respect property rights"

      Ha ha.

      Delete
    3. …you have to admit that they are able to respect property rights and conduct exchange.

      No they don't. They chop people's heads off and put them on pikes. And what's with this obsession with exchange that always find common among libertarians.

      It seems more likely to me that law coevolves with the market.

      As does government.

      Delete
    4. My point was merely that markets can and do exist in the absence of law. All you need is people who acknowledge the property rights of each other to the minimal extent necessary for exchange to occur.

      Delete
    5. Matt, "recognizing property rights" means that there is law in place. Now, I'm not sure what you mean by "law" in this context. If you mean something like formal, codified laws, then sure, a "market" can "exist without law". But what exists instead is probably some type of customary law. Property rights are also a lot more complicated than you probably think and their intricacies develop over time as society develops. Mineral rights and riparian rights are both property rights, but their rules are different because they deal with different subjects. Might I suggest looking up your state's property law online? It'll give better insight into these matters.

      Delete
    6. Matt,

      the law applies precisely when people disagree over things, such as over who owns what. If everyone agreed about everything and behaved accordingly, there wouldn't be a need for law. However, in a real lawless world, such as drug cartel land, people unilaterally impose their property claims through force. If you disagree with the drug boss, he shoots you. Is that the basis for ancap law?

      Delete
    7. I'm being pedantic here to make sure we understand the ancap points of view. If markets can exist without law, then it is more reasonable to believe that law could be provided by a market.

      Wikipedia says: "... the Tannehills and Rothbard ... see an ideological commonality of ethics and morality as a requirement". That would be the basis for law in their versions of ancap.

      So all we need is a world in which the buying power of the peaceful and committed libertarian ideologues exceeds that of the violent drug dealers and others who would buy laws to serve their own interests. This is where it starts to sound hopelessly utopian to me.

      Delete
    8. "If markets can exist without law, then it is more reasonable to believe that law could be provided by a market."

      No there's no logical way that a market could 'provide law'. What provides 'law' in your ancap scenario is people using force to impose their claims and beliefs on others.

      Delete
    9. My point was merely that markets can and do exist in the absence of law.

      They can't and they don't. Markets can't exist in the absence of law anymore than society can. Perhaps you're thinking of written law. In settings where written law doesn't exist there is customary law which is usually tribal in nature.

      All you need is people who acknowledge the property rights of each other to the minimal extent necessary for exchange to occur.

      Imagine a small town of conservatives, let's say of the Bircher variety. It's a small town, so people know each and there aren't many disputes. But there is still law and government of some kind. It may just take the form of a weekly meeting of prominent townsfolk and enforced by a militia made up of the town's members.

      There is so much more to the law than property rights. Property rights say who owns what, but they do not say what one can and cannot do with one's things.

      Delete
    10. Furthermore, law is not a commodity. It is a society's code of conduct. Animal rights activists are not looking to "provide" you with anything when they campaign for laws against animal cruelty. And if those laws aren't in place, then some people will take matters into their own hands like how the Sea Shepherd Conservation Society does with Japanese whalers.

      Markets aren't everything. There are many political issues that don't have to do with markets, so why is it always seen as "government versus the market"?

      Delete
    11. Well, isn't that almost the very definition of law?

      I could see an ardent libertarian telling a statist: "What provides 'law' in your democratic scenario is people [majority voters] using force to impose their claims and beliefs on others."

      Delete
    12. You are right Matt. But I think the point that Sampson and Mr. are making is that ancap does not avoid the issue of imposing law coercively on those who do not agree with a particular society's vision of what is just. In ancapistan, communists will feel very coerced!

      Delete
    13. Think of it this way, Matt: do you think it is possible to have a "market" in the types of property rights a society might use? In what way could fee simple possibly "compete" with fee tail?

      Delete
    14. It's not really a market for law. It's a market for coercion. This is not contradictory or daft in itself: law requires coercion. The question is not, is this logically possible. It is. The question is what kind of coercion will we end up with. Experience and theory suggest the answer is, not the kind and amount most of us want.

      Delete
    15. "It's a market for coercion"

      Please explain what you mean, thanks.

      Delete
  7. Gene, I don't mind that you disagree with me, but it's frustrating (and time-consuming) that you don't even bother saying, "Now of course Bob's response will be XYZ, to which I say..." With someone who never dabbled in this area, that unwillingness to advance the argument to the next step would be understandable, but since I've seen you write *articles endorsing* the next step in the argument in the past, I know that you know what the next step is.

    So anyway, let's change contexts for a second. Suppose you encountered a socialist who argued, "Ha! I quoted this Murphy guy saying he thought 'profitability should determine how farmers and grocery stores allocate food in a society.' Well, what if a billionaire pays to keep all the food locked up? What if farmers find it unprofitable to grow anything besides tobacco? So Murphy has just proved the case for socialism. He thinks he can pre-determine that people won't starve in his system, but he gives away the game elsewhere in his writings."

    Would you think the socialist did indeed just blow me up?

    Back to law, right now I am pretty sure it's not illegal for a professional umpire or referee to wager on a sports game in Vegas. But it's definitely against the market-determined rules in the NBA. Most people would probably agree that there is less corruption in NBA officiating than in the government. So in the real world, it seems that the profit-driven market generates rules that most people would agree are fairer and more uniformly enforced than the State generates. But it seems you want to focus on a hypothetical world in which the opposite might happen, and that's why you are OK with the current world in which we live with actual injustice we can see with our eyes.

    ReplyDelete
    Replies
    1. The NBA rules work well WITHIN A SYSTEM OF STATE LAW. When private groups operate outside such a system, we get... drug cartels. I see the real world injustice all around us. What you are missing is the vastly greater amount of real world justice that surrounds us. As Hegel said, the average person just takes it for granted that they walk home safely at night.

      Delete
    2. When NBA self-regulation breaks down (see Donald Sterling) where do they wind up? State courts! When drug cartel self-regulation breaks down? Shootout!

      Delete
    3. I "ignored" the "next step" because there isn't one that makes any difference for my point.

      Delete
    4. As Hegel said, the average person just takes it for granted that they walk home safely at night.

      Can I get the exact quote? I might want to use it in the future.

      Delete
  8. The NBA rules are set by the board of Governors on the basis of a two thirds vote. Each NBA team Owner appoints one Governor to act on his behalf. Referees are employed by the NBA, not by the team owners. Many powers are assigned by the board of governors to the Commissioner, (who is not an owner).

    Now as regards how the rules of play are determined and enforced, it looks to me that the NBA resembles a westminster democracy (with a very limited electorate) more than any AnCap system that I have ever heard of.

    SO..In what sense are NBA rules created or enforced by a 'market process'?

    Maybe that's the wrong term, but I just don't get the analogy between NBA basketball and any proposed AnCap system of law or justice.

    ReplyDelete
  9. Gene, would you agree that libertarians have probably stretched the meaning of "market" to include any and all human interaction? And that this now incorrectly causes them to see justice as a "service"?

    ReplyDelete
  10. You say "The NBA rules work well WITHIN A SYSTEM OF STATE LAW"

    Which is true. It would be equally true to say that they would work well within any stable system of law. Libertarians believe that it is possible to have a stable system of law that doesn't depend upon the state to enforce it. Such a system would need the support of enough people to make it viable just as a state system does (the state can impose its version of justice because its the biggest force it around, if it lost that power then state justice may not be able to prevent the kind "shoot-outs" you refer to).

    One advantage of a non-state imposed system of law and law enforcement would be that it might reduce things like this

    http://www.thedailybeast.com/articles/2014/08/15/the-day-ferguson-cops-were-caught-in-a-bloody-lie.html

    ReplyDelete
    Replies
    1. Or much more likely, it would multiply things like that ten-fold.

      Delete
    2. One advantage of a non-state imposed system of law…

      Distinction without a difference. Someone is still doing the imposing.

      Delete
    3. "Such a system would need the support of enough people to make it viable just as a state system does"

      you mean the majority would impose their laws on the minority...?

      Delete
    4. There has to be a high degree of acceptance of what the law is in a given territory other wise there will be civil conflict. This is just as true for a territory with a state as for one without. There also needs to be generally accepted process for dealing with those who break these laws (including rules governing the use of force).

      However I see no reason why a community couldn't have a commonly agreed framework for justice, and have private (and competing) agencies implementing this framework.

      I think this would work better that a state-imposed monopoly system.

      Delete
    5. That's still a government.

      Delete
    6. That's still a government. You haven't eliminated any "monopoly" because all you've done is commercialize it. "Competition" is the wrong way to look at it.

      Delete
    7. Law enforcement in the USA is very inefficient (it is expensive and not good at catching real criminals) and inhumane (it routinely mistreats both criminals and innocent people who have been mis-categorized as criminals ).

      It does not seem much of a stretch to me that competing law enforcement agencies working within an agreed framework would do a better job on both counts than state law-enforcement monopolies.



      Delete
    8. I would not call a commonly accepted framework for justice a government - but I guess thats a question of definition.

      Delete
    9. "However I see no reason why a community couldn't have a commonly agreed framework for justice, and have private (and competing) agencies implementing this framework."

      The body which decides what that "common framework for justice" (i.e. law) is, is the ultimate legal authority. Private agencies would be subject to that legal authority.

      Delete
    10. If a network of ancap defense agencies has agreed on this common framework and are enforcing, they will be the state. And to those who disagree with their framework, they will appear just as coercive as does the US of A to most ancaps.

      Delete
    11. Possibly.

      But there is such a big difference between this network of defense agencies of limited scope and the federal government with its $3T budget and track record of crimes against humanity that to say they are both states hides more than it reveals.

      Delete
    12. Rob, any actually existing entity will have done more bad things and spent more money than an entity that has never existed. The federal government has also done more good things than the network of ancap agencies. If it ever comes to exist, we'll see just how limited its scope actually turns out to be,

      Delete
    13. So we should just accept the status quo , no matter how bad, because we can imagine that the alternative may be worse ?

      We should not even discuss taking small steps in a different direction in case it makes things worse ?




      Delete
    14. "So we should just accept the status quo , no matter how bad, because we can imagine that the alternative may be worse ?"

      rob, if you were a stranger, dumb s&^t like this wouldn't get posted: do you really think that is what I am saying?! Don't I suggest reforms here in this very blog, that you read regularly, all the time?

      Delete
  11. "However I see no reason why a community couldn't have a commonly agreed framework for justice, and have private (and competing) agencies implementing this framework."

    The body which decides what that common 'framework for justice' (i.e. law) is, would be the ultimate legal authority. Private agencies would be subject to that authority.

    ReplyDelete