June 10, 2004

Libertarianism is the Socialism of Lawyers

I lifted this line from Kieran Healy. It's a good line, and I'm going to have to use it. Alas, the attached discussion on CT is fair to middling worthless, although perversely enough Sebastian Holsclaw's mother makes a good point about the persistence of religion in the absence of belief.

It is remarkably hard to find a real libertarian who hasn't made a career in some aspect of the legal trade. If there were no government, I do wonder what most of them would end up doing for a living. There is a word in English for something that works to destroy the source of its own survival. We call them parasites, and it's one of the reasons why I tend to prefer small "c" conservatives over anarcho-capitalist libertarians with any form of capitalisation.

Posted 2004/06/10 11:30 (Thu) | TrackBack
Comments

s/Healey/Healy/g

Posted by: Aidan Kehoe at June 10, 2004 13:58

Oh, and Umberto Eco has a piece, a letter to Cardinal Carlo Maria Martini that defends quite well against the notion that lay morality is simply the persistence of a religion in the absence of belief.

Posted by: Aidan Kehoe at June 10, 2004 14:08

One day, I will write code to make a four hour waiting period between writing and posting a post. Then I might be a decent proofreader for my own stuff.

I disagree with Eco that there is an immutable basis for ethical behaviour at all, just that there are mutable bases and the ones taught in church sometimes retain their hold after church has been left behind. People live and die for principles that they doubt all the time. To say that people's ethical behaviour is not wholly divorced from their religious backgrounds is not to say that there is no ethical behaviour in people untouched by religion. The claim that there is no possible basis for ethical behaviour except fear of divine punishment strikes me as just plain silly. Eco is using way to many words to dismiss such a claim.

Posted by: Scott Martens at June 10, 2004 14:28

Oh lord, there's an even worse typo in the next post.

Posted by: Scott Martens at June 10, 2004 14:29

Hmmm... not sure I can agree with your characterization of a parasite as something that works to destroy the source of its own survival. That would be the definition of a bad parasite (bad for itself, I mean; they're all bad for their hosts). A parasite, like every other organism, is something that works to make offspring. There are various parasite strategies, some worse for the host than others. These strategies can vary even within a single species (though the concept 'species', on one view, is a bit suspect for prokaryotic parasites). Vibrio cholerae, for example, will enjoy better success by causing a harsher or a milder case of cholera, for example, according as whether local sanitary conditions are better or worse. Also, a parasite may work to destroy some hosts and try to leave others only mildly harmed. There is a thorny-headed worm that spends part of its life in isopods (pillbugs) and part in birds. The parasite changes the behaviour of the isopod to maximise the chance it will be eaten by a bird; can't get more destroyed than that. But in this case, destruction of the host is survival for the parasite; by contrast, it doesn't severely debilitate its avian final host.

But back to your point. My own impression is that it is IT people rather than lawyers who tend to libertarianism, but be that as it may. If lawyers wish to abolish the law, it is probably because it hurt their heads to learn, say, the Uniform Commercial Code, and they wish things like that would just go away.

Posted by: Mrs Tilton at June 13, 2004 10:43

Of course, no libertarian wishes to eliminate law or those who practice it. Even anarcho-capitalists support a system of laws, just not state enforced laws. I'm sure you can think of a better strawman than this.

Posted by: Micha Ghertner at June 14, 2004 7:50

Well, Micha, I'm hard pressed to see how laws are likely to be enforced outside an institution that looks a whole hell of a lot like a state. See the big complaint folks used to make about socialism was that no one ever seemed to put forward a plan to make it work that didn't look a lot like pretty totalitarian. I have yet to see a plan for a stateless system of law that didn't look a lot like either feudalism or religion.

Besides, it seem to me that the etymology of the very word "anarchist" implies the advocacy of the abolition of laws. Perhaps y'all should pick another name besides anarcho-capitalism if you're not against laws. Something a little more honest, like plutocracy.

Mrs T - I have also met a lot of people in IT who claim to be libertarians, but somehow, every last one of them support a state-sponsored space programme. This disqualifies them from being actual libertarians.

Posted by: Scott Martens at June 14, 2004 11:05

If you don't understand or aren't familiar with the system of law proposed by anarcho-capitalists, then say so. But don't the construct staw man that no such proposals exist.

Anarchism, defined by any dictionary I am aware of, implies the advocacy of the abolition of government, not of laws. Perhaps you should try consulting a dictionary before giving others etymological suggestions.

As for how an anarcho-capitalist legal system might look, see:

Chapter 29: "Police, Courts, and Laws--on the Market" in David Friedman's The Machinery of Freedom

"Private Creation and Enforcement of Law -- A Historical Case." Journal of Legal Studies , (March 1979), pp. 399-415.

Bruce Benson - The Enterprise of Law: Justice without the State, Pacific Research Institute, 1990

Robert C. Ellickson - Order Without Law : How Neighbors Settle Disputes, Harvard University Press, 1994

See generally Randy Barnett and Tom Bell on Polycentric Law.

Also, here is collection of books and articles on polycentric (i.e. anarchist, non-monopolistic) law.

Regarding IT libertarians, you must be meeting some pretty strange folks; I've never met anyone who calls himself a libertarian, be they IT or not, say that they support state-sponsored space programmes. Maybe libertarians in Europe are not the same as libertarians in the U.S.

Posted by: Micha Ghertner at June 14, 2004 22:54

Micha, don't be silly.

"Anarchy", from the Greek an - arkhos. No rule. Precisely which straw man have I constructed? There are to be laws and courts, but neither government nor public interest. The system you are proposing is not an absence of government, it is simply a place where money makes the rules. Friedman's discussion of medieval Iceland makes that point quite clearly - there was no crime, including murder, that could not be committed with impunity if you could pay. Furthermore, the whole thing collapsed into civil war, which should offer some lessons about the long term fate of such systems of governance.

Polycentric law is even worse. Instead of a system of government that is responsive to actual people, people like Barnett (and many radical Hayekites) advocate the replacement of law and state with unresponsive customs and superstitions, like in the dark ages. This entire line of thought is trying to deny the progress made in the Enlightenment. It's nothing so much as a belief in an ostensibly better set of superstitions. Polycentric law, my ass. If you want to see "customary law" in operation, try Fiji or Swaziland.

Unless you intend to define the state in the most parochial manner imaginable, all you are doing is reconstructing the state under another name, establishing the rule of the wealthy and rendering institutions too inflexible to actually survive.

Posted by: Scott Martens at June 15, 2004 6:54

And, Micha, I'm from California. Many of the IT dorks out there certainly were both libertarian (in the sense that used that label to complain that they shouldn't have to pay taxes) and simultaneously complained about the poor state of the US space programme. This was the most bog common thing to hear in the heart of this so-called free market dot-com revolution. I'm not sure where you are, but I suspect if you're experience is different, it might be that you don't deal much with actual computer people.

Posted by: Scott Martens at June 15, 2004 6:58

From Merriam-Webster Online:

    Etymology: Medieval Latin anarchia, from Greek, from anarchos having no ruler, from an- + archos ruler

"No ruler," not "No rules."

Regardless, I am telling you that anarcho-capitalists oppose governments, not laws. Perhaps you don't believe the anarchist label should apply. Fine. But don't say that libertarians oppose laws.

Anarcho-capitalists often use the terms "government" and "state" interchangeably, and define both according to Max Weber's formulation: a state is an organization that holds a monopoly in legitimate use of violence within its territory.

I'm not really interested in debating the merits of anarcho-capitalism or its historical implementation. My sole purpose here is to counter your misrepresentations, especially your strawman that anarchist libertarians favor the abolition of all law.

Instead of a system of government that is responsive to actual people, people like Barnett (and many radical Hayekites) advocate the replacement of law and state with unresponsive customs and superstitions, like in the dark ages.

You clearly have no idea what you are talking about. Although Hayek did stress the importance of custom, this is the aspect of Hayek that more radical libertarians tend to reject. And I don't recall Hayek ever advocating belief in superstitions.

As for Barnett, I doubt you have read any of his academic word if you think he is a big fan of customs or superstitions. Just read his thoughts on Lawrence v. Texas, for goodness sake.

Many of the IT dorks out there certainly were both libertarian (in the sense that used that label to complain that they shouldn't have to pay taxes) and simultaneously complained about the poor state of the US space programme.

These sound more like Republicans than libertarians. Regardless, this is certainly not indicative of most libertarians.

I'm not sure where you are, but I suspect if you're experience is different, it might be that you don't deal much with actual computer people.

I'm a student at Georgia Tech, a university with few students who are not actual computer people. The vast majority of other libertarians I have spoken with online or in person are also actual computer people. And while many of them often complain about "the poor state of the US space programme," they lay their criticisms directly at the hands of the government for interfering in something it has absolutely no business doing. They certainly don't support "a state-sponsored space programme."

Posted by: Micha Ghertner at June 15, 2004 13:28

word=work

Posted by: Micha Ghertner at June 15, 2004 13:30

Micha - I've been out for a week with real life, but let me remind you of the following:

Hayek actually used the word taboo to describe the custom of private property. To advocate custom even when you - as Hayek does - admit that the system of customs you're using is going to lead to irrational results - is certainly a good indicator that Hayek was at the very least advocating a post-modernist, if not simply anti-rationalist, view of human civilisation. Ayn Rand, in contrast, was openly superstitious and makes essentially religious assertions about the nature of private property.

If a single class - e.g. the moneyed class - possesses a monopoly on violence, they qualify as a state the same way that country does, just not a very democratic state. By your definition, feudalism was a libertarian scheme, since it was largely ruled by custom and there was no monopoly on legitimate violence. Of course, you're already pointing to medieval Iceland as an example of libertarianism, so I suppose it's possible that you really are advocating a return to the dark ages. Still, I think any system of political thought that views the dark ages as a period of political freedom that we should aspire to is definitely nuts.

As for Barnett, he believes that a superior public order can exist built atop nothing stronger than customary interdictions. Barnett has the pure dumb foolishness to think that the whole thing will just work as long as we stick to two, little customary rules that no one will break on pain of public disdain.

Unlike Barnett, I have actually seen such a society in operation: they're called the Amish. They operate the perfect example of a polycentric legal system. There is no monopoly on force - in fact, force is categorically forbidden as a method of resolving conflicts. There is no monopoly legal system - each church acts essentially as its own court system. And, violating the parameters of the system is enforced exclusively through strict taboo - failure to comply results in expulsion from the communinity.

The result is one of the least liberal societies in America. Market libertarianism - even in the minds of many of its advocates - isn't much more than multiple choice tyrrany.

You see, if there are to be rules, there have people to enforce them. As awful as government and police can be, the existing order operates in large part because the police and the government are substantially more responsible to the public and substantially more capable of adapting to variable conditions of life than the orders that preceded it. If we are all rulers, then there are no rules more complex than taboos. A social order in which inflexible customs rule instead of having actual people rule is far more a "Road to Serfdom" than a government of human agents and amendable laws.

And ironically, the only person I ever met who believed that travelling in space was a crime against God was also a graduate of Georgia Tech. If the space programme had been in private hands, there would be no space programme. I suppose you could make a case that that's a good thing, but there is no case to make that any private institution could have accumulated tha capital - and been willing to take the risks - that the US or Soviet space programmes have cost.

Posted by: Scott Martens at June 18, 2004 9:47

A lot of this argument is semantics, which I'm sure Scott enjoys! :P However, I do find it hard to understand how Libertarians (and I hate using that term) think that capitalism would survive without a state of some kind (if private armies/police forces are not the apparatus of a state). What happens when the sham of the "social contract" can no longer be hidden by the veil of pretended concern? Would the poor or disenfranchised just accept that 'private property' (another avenue for semantics) is sacrosant, despite it often having been built upon oppression and dispossession if not actual murder? Then again, maybe capitalism is not really the right word for what those calling themselves anarcho-capitalists or "libertarians" espouse?

While anarchists talk about doing away with the state, I think that with the definition Scott is working with, most anarchists actually would still keep a state, just radically re-organizing it (which would be argued to be necessary to avoid the problems inherent in keeping 'state power' in the hands of a few). I've seen an e-mail list that dealt with such topics. Which i suppose is where you get into figuring out the difference between libertarian socialism/radical democracy/anarchism. These are fundamental questions about the best way to maximise liberty and autonomy in both the positive and negative sense.

Posted by: dj at June 22, 2004 9:57
If a single class - e.g. the moneyed class - possesses a monopoly on violence, they qualify as a state the same way that country does, just not a very democratic state.

If they are in collusion. Do you believe that The Rich can always count on each other to show a united front against The Nonrich?

Posted by: Anton Sherwood at July 4, 2004 6:35

Anton - what leads you to think that the state colludes with itself? Do you think the cops really show a united front either?

Posted by: Scott Martens at July 5, 2004 17:59
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