Murray Rothbard On Private Law
Submitted by MarcMadness on Mon, 10/08/2012 - 12:33In this edition of Mondays with Murray, we look at another clip of Rothbard from the very same event in 1989 where he discussed the candidacy of Ron Paul, posted in last week’s edition. Rothbard is asked a question about the “viability” of privatizing the judicial system. He responds by pointing out that it’s “being done right now” and begins to discuss how private parallel legal systems began to pop up in Los Angeles in response to an over clogged court system. Living in Los Angeles and having encountered the court system in the past (just a traffic violation – don’t worry, dad!), I can certainly attest to this.
Rothbard goes on to point out all the benefits of private judicial services: it’s faster, more efficient, and also allows for specialization in courts. Under the current system there is one monolithic court system that judges all types of cases in all sorts of different industries. Under private judicial systems people or companies with disputes can take their case to an expert in their field, as opposed to a politically appointed judge who may be an expert in nothing more than kissing up to the right people.
I find it interesting how many often wax philosophically about private law, but fail to point out that it is more than just a theory. Private law exists around us day in and day out, whether it’s companies settling disputes through private arbitration or even the rules systems that exist within say, Major League Baseball where professional umpires serve as the “judges” of all rules within the context of each game.
You could have a purely
You could have a purely private system of law but it would not be the paradise the anarcho-utopians think. Courts have to have some coercive effect. The loser has to be bound by the result, and reputation costs will not always be enough of a disincentive(unless we devolve into a tribal or feudal society which is certainly a possibility).
Furthermore, there is no guarantee in an anarchy that the Courts would enforce anything resembling the bill of rights, the majority of consumers or owners like corporate shareholders would decide what the law is within their jurisdiction.
Ventura 2012
The important point is that
The important point is that it is not "a" purely private system of law. But rather, that absent coercively enforced monopoly, there is no reason to believe there won't be "many" purely private systems of law. That may, or may not cooperate, depending on the issue at hand. Which will allow people to relocate, or realign, to or with the system/systems they find most agreeable.
Which will force those running each system to provide honest to goodness value in what they do, lest their particular system runs out of constituents.
And before you claim that such a plethora of coexisting legal systems will result in chaos, look at how different systems already exist today, in different countries. And, to a much lesser degree, in different states. So it's not like it's something radical, but rather just giving many more people much easier access to the kind of pick your own legal system that the footloose and wealthy already enjoy.
In civil law you pick your
In civil law you pick your legal system. In criminal law? You would have to sign a contract to be bound ex ante to the laws of a jurisdiction, basically a local police force. If you did not sign then you could not live there OR you would be "coercively detained" upon committing a crime
Ventura 2012
Could not live there?
If you did not sign then you could not live there OR you would be "coercively detained" upon committing a crime
Would a system of laws for a region, and any future modifications to that system of laws, have to be unanimously agreed to by all the residents? If so would "residents" include tenants, or only landowners, or what?
Would any subset of those residents be free to declare their independence of those local laws, and join together to create their own new autonomous region with its own system of laws?
If I want to purchase land from someone, and they want to sell it to me, and we agree on a price, are these prior agreements binding on me, in a manner similar to the covenants of a homeowners association?
If I'm passing through the region, minding my own business, and it turns out that unknowingly I've violated some local ordinance, and they coercively detain me, am I just SOL, like the little towns you see sometimes that have a speed trap set up to fleece outsiders?
"You decide." -- Judge Napolitano http://youtu.be/D5J84fWqEK0
You'd have to ask the
You'd have to ask the anarchists, but these are all inescapable scenarios if you demand a purely voluntary society.
Ventura 2012
"Furthermore, there is no guarantee
in an anarchy that the Courts would enforce anything resembling the bill of rights..."
Is there a guarantee now?
Come on Brawler, I know you can do better than that.
Actually our court system
Actually our court system does contain relics and reminders of said rights, over 200 years later. Do you think the masses will contract for things like the Writ of Habeus, procedural and substantive due process, and a right to a jury trial? I'm not certain that they would, in fact from reading Hans Hoppe's proposals, not even close. At some point you will have to, believe it or not, come up with plausible policy proposals rather than saying "well its bad now so it can't get worse" which is obviously fallacious.
Ventura 2012
Hans Hoppe, in spite of what he would like you to believe,
is not the only or even an important voice among an-caps. Don't forget he advocates naked vigilante aggression against peaceful immigrants.
If people would not contract for procedural safeguards, they certainly wouldn't vote for them either. However, there is every reason to believe if people's consciousness and moral codes changed in such a way that they would embrace limiting government to the point of anarchy, procedural safeguards are exactly what they would contract for. These changes do not occur in a vacuum. Libertarians are not just trying to change the political system, we are trying to change the way people relate to each other vis-a-vis the use of violence.
That's fine, I think you're
That's fine, I think you're onto the right track as to the magnitude of the problem you face. I'm more focused on things that could actually change in my lifetime. When I quote an author you should not assume I'm saying he's the only anarchist out there. I've probably read more material on the subject than most of the ancaps here.
Ventura 2012
The fallacy
in your statement is that anarcho-capitalists expect utopianism. This is not the case. Do you argue that we have a utopia under a system of government monopoly coercive law right now? Clearly not.
The argument is that anarcho-capitalism can produce a better system, not a perfect society.
You are correct when you say "the majority of consumers would decide the law", and in a way that is true, as those that participate in the market for legal services would have large sway over what firms rise to the top and therefore spontaneously create the system of private law. This does not mean that no murderers would never be acquitted or that noone would be falsely convicted. However, those are things that happen under the current system, where the majority of voters and those they elect decide the laws.
The argument for anarchy is not that it offers utopia; it is that it offers a more efficient, and more moral, system.
http://lionsofliberty.com/
I never said it would be a
I never said it would be a "worse" system, just that there's no guarantee of constitutional rights in contract law which is the foundation of an anarchist system. If you value economic efficiency over due process then the anarchist system will work well ceteris paribus, probably with Judge Dredd running around.
Ventura 2012
So if it won't be worse
And doesn't involve coercive money extraction to function, wouldn't that make it better?
You site Constitutional rights as if 1) the constitution grants these rights in the first place (they are natural rights the Constitution merely states) and 2) that we have Constitutionam guarantees now.
I'm not sure if the "right to a jury trial" would exist or be the best way. Some criminal courts may utilize paid juries if markets determine that is accepted as the most fair way. Surely we wouldn't have jury slavery as we do now.
http://lionsofliberty.com/
Im not here to try to
Im not here to try to convince someone that the 500 year old English rights are "better". I think they're pretty good.
Don't you see that in an anarchy these "natural rights" are nothing more than contractual terms?
We live in a lawless society which has not always been the case, so you can't hold me to the strawman that I advocate this. Constitutional rights are still upheld for the most part but the decadence of the people means that it's really only the judiciary standing for them. not for ethnic minorities. I'm sure racism will go away in anarchy and everyone will have a 180iq lol. Utopian.
Ventura 2012
This scenario
Seems much more complicated and far-fetched than the simple buying off of political hack judges that so often takes place today. I suppose Apple could secretly boost the rating of it's products with Consumer Reports, but wouldn't this delegitimize Consumer Reports?
The scenario you have laid out here is pretty far fetched and takes a substantial amount of effort on the part of this supposedly rich person who spends all his time upvoted Courts that are more likely to go his way. Reputable verification services would have failsafes in place for things like this, and services that did not would certainly fall in the marketplace.
Do you think the government should be the sole provider of doctors? After all any corrupt Doctor could just manipulate the free market to make it look like he is a terrific doctor when in reality he is killing patients left and right.
AnCap does not promise perfection. It merely offers an alternative system that would not only be much more efficient economically, but has the added bonus of not first requiring a solitary entity called "government" to use force upon every citizen to extract funds to provide its "services"?
Free market advocates are always talking about how competition makes things better. Your arguments give no compelling reason why a politically appointed or elected monopoly judicial system is better than a marketplace where these services are offered and those that offer them are judged by their reputation in the market, as opposed to judged by ....nothing at all!
http://lionsofliberty.com/
My fear with private courts
My fear with private courts is that private courts and private prisons would gang up to send innocent people to jail. Not only could the collusion be easily covered up, but if it were discovered, the sheeple won't protest it because they are too stupid to do so.
Plan for eliminating the national debt in 10-20 years:
Overview: http://rolexian.wordpress.com/2010/09/12/my-plan-for-reducin...
Specific cuts; defense spending: http://rolexian.wordpress.com/2011/01/03/more-detailed-look-a
And why would then not other
And why would then not other private courts free them, and other private operators bust them out of jail? After all, keeping people locked up has a net cost, while free people are able to generate a surplus with which to incentivise those helping them stay free. So, the bias in a truly private system, would be to keep people free and productive.
You forgot the part where the
You forgot the part where the anarchist swoop in to tell you the sheeple will all be wide awake and "new communist men" a la Marx. The dirty little secret of the anarchists that they rarely talk about!
Ventura 2012
I'm sorry but
I have read this sentence 3 times and have no idea what you mean. Care to elaborate?
http://lionsofliberty.com/
I always find these objections humorous
Because they seem so silly to me.
Where do these courts and prisons get their money? Who funds them? You are stating something that occurs RIGHT NOW IN TODAYS SOCIETY, only through government.
In a free market, courts would have to serve customers who pay them to dispute their cases. Courts that just willy nilly convict obviously innocent people would not only not get very far, they would be subject to legal action by more upstanding courts.
I've written a few posts on private law in an AnCap society, I hope you'll check them out.
http://www.dailypaul.com/250333/intro-to-ancap-private-law-p...
http://www.dailypaul.com/252034/intro-to-ancap-private-law-p...
http://lionsofliberty.com/
And who judges that?
Courts that just willy nilly convict obviously innocent people would not only not get very far, they would be subject to legal action by more upstanding courts.
Who is the judge of that? The free market, i.e., the court that gets the most support (i.e., that brings in the most business) is presumed to be the most "upstanding"? That would be like suggesting that the restaurants and food brands that do the most business are the ones that have the highest-quality food, when in fact the ones that rake in the most money tend to be the ones that willy-nilly destroy the health of their customers.
What's to stop private courts from doing to justice what Monsanto and McDonalds do to food, and getting away with it in much the same way, i.e., by outspending their detractors?
"You decide." -- Judge Napolitano http://youtu.be/D5J84fWqEK0
Interesting you use McD's and Monsanto
As examples, as these are also heavily subsidized companies in many ways both direct ago indirect. So I generally reject the premise. Again, what customers are going to choose courts who just convict obviously innocent people. I also see the concept of "prisons" as very different in a free society. They would likely be more like hotels for convicted and unable to operate normally in society.
Check out my links I posted if you have time. AnCap is a bit of a leap of faith, but once you look into it more I feel it's the logical libertarian conclusion.
http://lionsofliberty.com/
Would there be no McDonalds
in an AnCap society? I don't think the subsidies are the main part or even a necessary part of how they manage to push so much bad food out to so many people. It shouldn't be the case that heavy advertising, etc., make more money for McDonalds than they could get by making higher-quality food, but that's the reality of the effectiveness of branding and advertising.
Some people are good consumers. Most aren't. Given how stupid consumers are about major purchases and other decisions, and how easily swayed they are by advertising and media spin, why would you expect consumer decisions about courts to be any different? Courts would be sold to consumers the way hamburgers, beer and trucks are sold to consumers. And for that matter, politicians. We didn't get to a Romney vs Obama race out of rational self interest and educated consumerism in politics. Perception is king. Why would people be any more rational about choosing courts than they are about choosing politicians or trucks or investments or food or anything else?
When you say "just convict obviously innocent people" are you just imagining the easy cases? Yes, if a court were just outright crooked, verdicts sold to the highest bidder, their reputation would probably become very bad very quickly. But that's just saying that a *stupid* crooked court wouldn't last long.
Let's say I'm rich, and you're not. We have a high-profile dispute that we are going to go to court to resolve. Assume it's not a slam dunk, and it could go either direction. It's going to be a hard-fought case.
In the relevant area of specialty there are three courts in the city, and I recommend Court X that I've done a lot of business with over the years. They have an excellent reputation according to yelp or whatever service collects reviews of such things. I've both won and lost cases there. No hint of scandal. I've won and lost cases at Court Y, too, but their reputation isn't quite as high on the rating service as Court X. And there's a Court Z that, although nothing has been proven, has had some rumors of scandal floating around, and some bad reviews on the ratings site, etc., so I think we can rule them out can't we?
Various articles and blogs (none directly connected to me or my friends) note that I've suggested the court with the highest yelp rating and one that (unlike *some*) has no taint of scandal, and that I've also said I'm open to going with Court Y if you prefer, since what I want is simply to get the facts out there and have a fair hearing, because I'm confident that once everyone sees the facts it will be clear that I'm in the right. I issue a press release saying that I hope we can resolve this matter quickly and openly.
What happens next?
"You decide." -- Judge Napolitano http://youtu.be/D5J84fWqEK0
If I want to end the dispute
I will likely agree to háve the case heard by Court X or Y.
I fail to see how this example is a knock in AnCapas you see to describe the benefits quite well here.
Of course it's always better to be rich, that is certainly the case in today's system so the fact that it's also better to be rich in an AnCap system is not an argument against it. The mere fact we can choose a fair court and not háve a monopoly court forced on us is what makes AnCap more beneficial.
Does Consumer reports stay in business because they always recommend the worst products? Courts and agencies that rate courts should not be seen any differently .
http://lionsofliberty.com/
That's what I was hoping
In today's system, I might prefer judge X or Y over judge Z, and I *might* be able to get a change of venue or convince someone I have some influence over to assign the case to a judge more likely to be favorable to me. But more than likely I'm stuck with whatever judge is assigned to the case, like it or not.
In the AnCap scheme of things, you've made my life a lot easier. None of the three courts are corrupt, but court Z is less likely to look favorably on the kind of case I need to make. Fortunately, just as happens with other consumer reviews, I haven't had any trouble pushing a few bad reviews to lower court Z's yelp rating, and I also pushed some very positive reviews for Courts X and Y for the same reason. I helped to spread unsubstantiated rumors about court Z being corrupt as well. I don't have to do much, just enough that if you were to insist on court Z (in the unlikely event that you had enough insider knowledge of the particular specialty area to understand why they were actually your best bet) I could argue for one of the "more reputable" courts.
Am I going to bribe the court that gets the case? Not at all. I'm not trying to win every case, just trying to get an edge. In today's court system being rich means I can have better lawyers, have them spend more time working the case, etc. In the AnCap system I have all of that *plus* every private court knows that I can take my court business elsewhere.
Judges make judgment calls, and when it's a close call I want them to know that in the long run the happier they make me at those points that are close calls that could go either way, the fatter their ratings and their pocketbooks will be. None of that even needs to be said. They know that if I believe I would have a better edge at a different court, I'll take my business there instead and suggest to my friends that they do the same.
And those are the honest courts! The same practices that keep some really bad and scammy businesses going year after year currently aren't going to stop working. There are lots of un-savvy consumers out there, and some businesses rely on that fact. A lot of AnCap arguments are very compelling, if you just assume that the people in the AnCap society would operate as diligent, intelligent consumers with rational long-term self-interest.
A friend used an arbitrator for a divorce settlement a few years back. And in the end both sides were unhappy. But there were some messy financial and other issues that a judge could have come down on one way or the other, within the law (depending in part on who the judge believed was being more honest) so that either the husband or the wife could have gotten all or most of the asset that was one of the big points of contention. The arbitrator came up with a division of assets that was somewhere in the middle of a range of what possible outcomes if it went to court, but that required a judgment call on his part (with input from the lawyers of course).
They both paid the arbitrator the same amount, so there was no financial incentive for him to lean one way or the other. But the settlement could have easily shifted a good chunk of change (easily 50k or more) more in one direction or the other and still not been obviously or provably unfair, because of the kinds of complications and judgment calls involved.
That arbitrator is very unlikely to see either one of them again. But suppose that instead of divorce arbitration, it's a different kind of arbitration, or private court. And the arbitrator or judge is unlikely to see one of the parties ever again (you, in the hypothetical we started with), but the other party to the dispute (me) could be back many times in the coming decades, not to mention referring his or her pals also -- but only if the potential repeat customer is convinced that things went as well as they possibly could have for their side.
Now you've created a situation in which those there is a clear financial incentive for the arbitrator to lean one direction (mine) on those judgment calls that could go either direction within the bounds of what is arguably fair. Not often enough to be obvious, just often enough to keep my business.
And that's just for starters. In those cases where they have to rule against me to keep their reputation up, suppose I get a break on what they charge me for a case later that year. Nothing needs to be said overtly, just a volume discount because I give them so much business. In effect, to keep me happy while keeping the reviewers from noticing any bias, they pay some of my legal costs. They keep my business, and they keep their ratings high. I recommend their court to all my friends. Etc.
"You decide." -- Judge Napolitano http://youtu.be/D5J84fWqEK0
Oops
Accidentally posted the response up top, here it is again:
Seems much more complicated and far-fetched than the simple buying off of political hack judges that so often takes place today. I suppose Apple could secretly boost the rating of it's products with Consumer Reports, but wouldn't this delegitimize Consumer Reports?
The scenario you have laid out here is pretty far fetched and takes a substantial amount of effort on the part of this supposedly rich person who spends all his time upvoted Courts that are more likely to go his way. Reputable verification services would have failsafes in place for things like this, and services that did not would certainly fall in the marketplace.
Do you think the government should be the sole provider of doctors? After all any corrupt Doctor could just manipulate the free market to make it look like he is a terrific doctor when in reality he is killing patients left and right.
AnCap does not promise perfection. It merely offers an alternative system that would not only be much more efficient economically, but has the added bonus of not first requiring a solitary entity called "government" to use force upon every citizen to extract funds to provide its "services"?
Free market advocates are always talking about how competition makes things better. Your arguments give no compelling reason why a politically appointed or elected monopoly judicial system is better than a marketplace where these services are offered and those that offer them are judged by their reputation in the market, as opposed to judged by ....nothing at all!
http://lionsofliberty.com/
Not complicated at all
I described a number of avenues open under your scenario that aren't open under the current scenario. No need to do all of them. It's sufficient that, without anyone having to say anything about it, a private judge competing with other judges for business has a financial incentive to make the cases that could go either way go in favor of the side most likely to provide repeat business. If they do that, they make more money. If they don't, they make less money. That's the foot in the door.
It's like my favorite restaurant giving me an appetizer on the house because I go there several times a month, or the guy who maintains my rental property going out of his way to fix something because he knows I'll be sending him lots of business for years to come. Except the favors a private court can do for me are favors that work very directly against you, if you and I are adversaries in that court.
Once I've got that foot in the door, as one of the potential repeat customers the court would like to keep happy, how much effort I want to go to to make the system work in my favor (such as gaming the ratings) depends on how much help I expect to need.
BTW, the analogy to Consumer Report doesn't work. They buy the items retail, and compare them personally. They don't accept advertising, so they have no financial incentive to favor one brand over another.
Reputable verification services would have failsafes in place for things like this, and services that did not would certainly fall in the marketplace.
Certainly? Angies list and yelp have big problems currently with ratings being gamed, and yet they don't seem to be failing in the marketplace. Why haven't ratings services with failsafes taken over that marketplace?
For that matter, what kind of failsafe are you imagining *could* prevent those sorts of problems? We're not talking about small-town "everybody knows everybody else" reputation, like Andy Griffith's Mayberry. We're talking about people you don't know rating other people you don't know.
Do you think the government should be the sole provider of doctors? After all any corrupt Doctor could just manipulate the free market to make it look like he is a terrific doctor when in reality he is killing patients left and right.
That problem does apply to doctors (I've seen doctor and dentist reviews that had all the earmarks of a fake review) and restaurants and plumbers and everything else. It would apply just the same to private courts. And if that were the only issue I'd probably just say that unwise consumers deserve what they get, just like when they hire a plumber for a major job without carefully looking into the plumber's reputation. Buyer beware.
But I was pointing out something beyond that. Courts are adversarial. The court that is best for me is not best for you, and vice versa. I like sushi, but if you don't like sushi I have no incentive to try to trick you into going to a sushi restaurant. But if we're going to to be adversaries in court, then I *do* have an incentive to try to get you to choose the court that's best for me. Choosing restaurants and doctors is very different from that.
"You decide." -- Judge Napolitano http://youtu.be/D5J84fWqEK0
Today's "Private Prisons"
should more accurately be described as "Fascist Prisons". In fact I think a lot of things get the "private" classification in today's society that should have the "Fascist" description.
Exactly
If you require government money to exist, you aren't private.
http://lionsofliberty.com/
somewhat off topic, but it
somewhat off topic, but it reminds me of this frustruating myth that "the federal reserve is as much a part of the federal government as federal express" and that "it's just a private corporation making private profits!!!"
yea, private. sure.
cause federal express gives its profits back to the treasury? cause if i open a competing service to federal express i go to jail?
Rather than "End the Fed" wouldn't "Privatize the Fed" be a more accurate slogan for liberty?
Be sure to remember that this
Be sure to remember that this also applies if you require government money to enforce your contracts.
In that sense, the Pres was oh-so right in his "you didn't build that comment." Again demonstrating the validity of the "broken clock right twice a day" maxim.