Tuesday, January 6, 2009

Enforcing Rights in a Stateless Society

In response to my comments about bargaining power, quasibill plausibly suggests that “If contract enforcement is left to moral sanction, bargaining power would seem to be a perfectly acceptable consideration,” even from the standpoint of libertarians committed to the non-aggression principle. To put the point more sharply, if “moral sanction” were all that was at issue, and such libertarians still objected to talk about bargaining power, it would be hard to escape the conclusion that their objection wasn’t really rooted in concerns about aggression.

The conversation we’ve been having makes it a natural next step to consider the more general issue of the range of formal or quasi-formal options short of the use of force that might be available in a stateless society to safeguard a range of morally significant interests. (As I suggest in my recent post on rights, I think many of these interests ought to be talked about as rights, but I don’t think anything directly related to my current argument turns on whether we do or not.)

  1. Public shaming has the potential to be an effective strategy. Identification in a newspaper, or on a website devoted to “the Employment Hall of Shame,” can certainly turn up the heat, especially in a smaller, more self-contained community.
  2. Certification systems are less flashy, but surely also useful. Perhaps only positive options would be available, and people would draw conclusions based on the absence of a positive certification of, say, someone’s employment practices. (I am not assuming anything here about the frequency of employment, as a kind of economic relationship, in a stateless society. I hope it will be rare, and I think Kevin Carson and others have offered good reason for thinking this might well be the case.) But I think there would be a market for negative information. And if large numbers of (again, in this case) employers bet that their own ratings would be positive, they might be willing to participate in a system that gave some people quite negative ratings.
  3. Individual boycotts of those who ignore these interests are always possible, of course. And perhaps in relatively small, self-contained communities, such boycotts might exert some meaningful influence, though it’s easy to be doubtful.
  4. What we might call encouraged multi-person boycotts could be more effective. I have in mind here a case in which a pressure group makes some kind of general announcement urging people to joing a boycott. The effectiveness of this strategy would obviously depend on the influence of the pressure group.
  5. Coordinated boycotts could be a good deal more effective. Here, membership organizations organize boycotts, plan for alternatives to trading with the person or entity being boycotted, and keep up pressure on identifiable members to participate in the boycotts. Even if reasonably small, boycotts like this could be reasonably effective, though it’s unclear how many people would be comfortable belonging to organizations likely to pressure them in the way I’m envisioning (especially if they feared that ignoring the boycott could subject them to boycotting).
  6. Contractual boycotts would also be an option. We might imagine a range of cases in which a group of people agreed among themselves that circumstances of some specifiable kind would trigger a boycott and that violating the boycott would subject the violator to damages. Among the more benign sorts of contractual boycott might be one in which a group of people agreed that, if a court’s decision could not (per their community’s libertarian norms) be enforced coercively, they would boycott someone who failed to respect the decision.
  7. As I suggested in my previous post, the availability of certain kinds of enforcement mechanisms isn’t what makes something (I think) a right. It’s also not what makes a given interest (call it a right or not) protectable by a court. It seems clear to me that a court in a stateless community could simply decline to enforce, say, a contract concluded unfairly (assume that this is given enough content to guide actors in advance) on the basis of unequal bargaining power. Suppose that the court and the members of the relevant community agree that this isn’t the sort of decision that can justly be enforced coercively. It’s still the case that the court’s decision can confer legitimacy on the person alleging that the contract is problematic. And, while, ex hypothesi, the loser (the person or partnership seeking enforcement of the contract) can turn to another court in search of relief (presuming there’s no prior contractual obligation to use the court in question), there may be costs associated with doing so, both tangible and intangible. Doing so may seem to cast doubt on the loser’s credibility; initiating a new case may impose financial burdens; others may be less likely to do business with the loser in the future, especially if the court is identified as a community court and and enjoys widespread support; etc.
  8. The problems confronted by the loser in this case point toward one final factor: norm maintenance. It’s easy to imagine either that avoiding certain kinds of employment practices is a norm maintained in a given community or that adhering to the decisions of a particular court even when coercive enforcement of those decisions isn’t an option is a norm maintained in the community. A wide range of subtle mechanisms for maintaining norms exist beyond the relatively blunt ones I’ve considered here. Even in an environment with competing alternative institutions, a community’s norms could clearly confer greater legitimacy on one or more of these institutions. And even in an environment in which it was agreed that, say, certain kinds of contracts couldn’t be enforced coercively, a community’s norms could subtly, gently remind someone that “we don’t do that sort of thing here.”
I realize as I write that considering the issues we’re discussing here unavoidably raise questions about the source and content of law and the operation of courts in a stateless community. That’s a huge topic on its own—a major focus of a book I’ll be working on this winter—and I think it deserves multiple posts. The question I want to pose at this point is (i) does everyone agree that even a strict proponent of the NAP ought to be able to accept these enforcement mechanisms as legitimate and (ii) are there other specific approaches to securing respect for morally significant interests (call them rights or not) consistent with the NAP that I haven’t considered here?

11 comments:

quasibill said...

First, and actually more related to the previous post: I think it is relevant to note that, even in a coercive enforcement regime, bargaining power is reasonably considered in at least one class of contract disputes. Specifically, where the contract is ambiguous or completely silent on the occurrence of an event. Bargaining power seems to be a very relevant circumstance here. If one part had a substantial advantage in bargaining power, and failed to clearly protect itself from the occurrence of the event, it seems natural to me to rule against that party. This shades into a negligence analysis moreso than a true contract analysis, but I think trying to be too rigid in categories is a problem in itself.

As for your questions, I'm not entirely sure on 6 (? I can't see the post from the comment page, so I'm going off memory). Maybe I'm just being overly cautious here, but it sounds like, at its base, 6 depends on coercion in the form of damages. If, however, what you meant was that damages would be available through non-coercive enforcement mechanisms, it clearly should be acceptable to proponents of NAP, as I think all the others should.

As for other options, I don't think there are any clearly distinct ones, but a more finely detailed version might look something like a credit scoring agency, so that it doesn't require a binary decision, but rather causes escalating costs to engage in transactions with the community if you have shown to be resistant to community norms. As I said, I think this falls into several of your categories, but the idea that the enforcement mechanism can be non-binary, weighted, etc., is an important detail to keep in mind.

I also think you're very accurate in identifying size of the community as an important factor in most of these regimes. I think that as communities become larger, coercive, state like institutions become almost inevitable. One way around this would be to break down larger communities into smaller blocks with a very loose federation.

I'm eager to read what you have to say on the source of law in stateless societies. I'm slowly working my way through Benson right now.

Gary Chartier said...

Thanks for this. I appreciate your nuancing the analysis with regard to the previous post.

As regards your second observation, were you thinking of possibility 7, having to do with courts, rather than with 6, having to do with contractual boycotts? Where contractual boycotts are concerned, presumably damages don't raise coercion problems, because whatever damages are available were agreed to by the contracting parties.

I was trying, perhaps unsuccessfully, to bracket the question of damages in connection with 7. That is, I was trying to frame what I'd written with a fully voluntary court system in view—one that either couldn’t impose damages or could do so only in virtue of specific contracts. Indeed, my first concern was with a court (whether run by an arbitration agency or operated non-monopolistically by a local community) that declined to impose damages for violation of a contract it judged to have been concluded in a manner misshaped by bargaining inequities.

So: could you say more, in light of the above, about your concerns re. #6 (or #7)?

My book is really just at the conceptual stage right now. I want to see what the standard questions in the philosophy of law look like absent the state; I also want to ask the obvious anarchy-specific questions, like, "Does it really count as law if there's no state?" and "Does it really count as anarchy if there's law?" I've read significant chunks of both of Benson's books--they're full of interesting stuff. I thought Bob Murphy's little booklet on Chaos Theory had some interesting stuff on dealing with violent criminals in a stateless society, too.

I'll be talking about the book and floating ideas here, and I hope you'll continue to be part of the conversation.

quasibill said...

I was thinking of 6, specifically.

"Where contractual boycotts are concerned, presumably damages don't raise coercion problems, because whatever damages are available were agreed to by the contracting parties."

Well, that appears to be assuming part of what I dispute. People agree to all sorts of things in a contract and then litigate over them ferociously. I'm pretty staunchly against any form of coercive contract enforcement, even liquidated damages provisions. Of course, 6 is fine so long as the damage award is itself enforced only by non-coercive means such a boycott. Which might have been what you meant from the beginning, and I just over-read your bullet. If so, I apologize for picking non-existant nits!

Gary Chartier said...

Got it. If all contract enforcement via damage awards are illegitimate, then certainly damage awards in this case would be—I completely agree.

The options I offered here were ones I intended to be available to someone whose views were essentially Rothbardian: I wanted to show how someone who endorsed a position like Rothbard’s about property rights could still grant that the other sorts of rights in question were rights, and imagine their being enforced, even while accepting a strict version of the NAP.

My own view, which I’ll try to spend some time elaborating here as the conversation continues, is rather different, and reflects the new classical natural law theorists’ reading of Aquinas. But I wanted to examine the limits of enforcement under very strict constraints, and see where that led us.

If I understand your view, you’re suspicious about the award of contract damages under any circumstances—not just those in which awarding damages would conflict with a Rothbardian version of the NAP, but in any case. Am I understanding your view correctly? So: is it your position that moral suasion—cp. options 1-5 and 8 on my list—should be the only way of enforcing any contract? Would your position also rule out tort damages?

Thanks for clarifying and continuing the conversation.

quasibill said...

Since I consider my position to be a necessary implication of Rothbardian/Hoppeian principles, I'll point you to my extended explication of my reasoning and position:

http://the-bell-tower.blogspot.com/2007/12/contract-enforcement-consolidation.html

A large part of the beginning is addressed to non-lawyers, so you'll probably find it skim-worthy. This has been sort of my pet project for the last year and a half, so I'd enjoy any comments/critique/discussion you come up with on the subject.

The short answer to your question is: Yes, I don't believe that coercive enforcement of contract breaches is proper, absent actual fraud (requiring a showing that the promise was never intended to kept at the time of contracting) and I don't believe that negligence tort awards should be enforced coercively, either. I'm open to the idea that reckless, knowing, or intentional conduct can be dealt with coercively, though I don't believe it must necessarily be so.

Gary Chartier said...

I completely agree that we need to understand any moral obligation arising from a contract as rooted in a “meeting of the minds.” And I'm suspicious of views in accordance with which the “objective meaning of the terms” should be enforced whatever the intent of the parties.

Your argument that a sensible property convention will limit the use of force in the resolution of contract disputes is elegant and intriguing. And the general approach of proceeding on the basis of convention here rather—than on the assumption that a single, just scheme of property rights can be generated from considerations related to self-ownership, or derived from an understanding of homesteading—seems exactly right.

I am inclined to disagree with Rothbard on, as it were, the other side: that is, I think a contract just is an enforceable promise, and that which promises are enforceable is largely a pragmatic judgment. But I don't think that my differences with Rothbard, or with you, need to be seen as crucial at this point. That is, if you're right about appropriate enforcement mechanisms, we can simply understand option #6 as enforceable only using non-coercive means. On Rothbard's own view, I think this option would probably pursuable coercively. But there is, in either case, an understanding of the contractual boycott that has some substance and that is consistent with the relevant theorist's overall view of coercion (whether yours or Rothbard's).

Again, I trust this conversation will continue.

quasibill said...

I'm probably much closer to your position than it initially appears. I now consider myself more of a "decentralist" than a pure libertarian (although that's because I don't think a libertarian end can be achieved in a manner other than decentralization).

I still stick to my contract enforcement position as a sort of "meta" rule that applies as a background unless explicitly rejected by a given community (and therefore that community bears some burden of advertising what specifics they reject when outsiders visit).

Gary Chartier said...

The kind of “decentralism” you describe seems to me indistinguishable for useful purposes from what I mean when I talk about “panarchy” or “anarchy without adjectives.” That is, I think it’s much plausible (and, come to that, attractive) to envision a stateless society as one in which a thousand flowers bloom, in which a range of different legal systems and social norms are explored, than as one in which everyone magically agrees to endorse Rothbard’s Libertarian Code. It seems to me that there are limits on what counts as a just property system, and that some communities might well fall outside these limits. (That doesn’t mean I think outsiders ought to invade peaceful communities to alter their property rules!) But the limits are, I think, fairly capacious. If your proposed position would amount, effectively, to a baseline from which communities might be free to vary, I doubt we disagree about this cluster of issues in any way that matters. (Clearly, though, the issue of how moral suasion is used does matter a great deal to some people; cp. the conversation on my earlier post re. “Bargaining Power.”

Neverfox said...

"And I'm suspicious of views in accordance with which the “objective meaning of the terms” should be enforced whatever the intent of the parties."

I should think that holding contracts to the standard of the intent of the parties essentially destroys contracts. If contracting parties can simply deny that the interpretation represented their intent deep in their souls, then we would get nowhere fast. I think it makes a lot of sense to place some responsibility on people to understand the common legal treatment of their contract language. I think Long's discussion of Spooner in "Inside and Outside Spooner’s Natural Law Jurisprudence" makes this point very well but I also might be misunderstanding you.

"I am inclined to disagree with Rothbard on, as it were, the other side: that is, I think a contract just is an enforceable promise, and that which promises are enforceable is largely a pragmatic judgment."

I assume you are talking about Rothbard in Ch. 19 of The Ethics of Liberty. What aspect of it leads you to disagree?

Gary Chartier said...

Neverfox:

I was reacting to the lengthy and very thoughtful essay to which quasibill linked. I understood one of his points to be that a subjective understanding of contracts, one in which the intentions of the parties determine their actual moral obligations, is preferable to a more objective account. I think he would agree (but I don’t want to speak for him, and I hope he will continue to contribute to this thread) that there are significant problems associated with the enforcement of contracts on a subjective view; but, as I understand his position, this fact is a reason, not for the replacement of a subjective by an objective standard, but for the refusal to use force to implement contracts at all, for the replacement of force with moral suasion as an enforcement mechanism.

I am disinclined to agree with his conclusion, but I do find quasibill’s argument appealing because of the intimate relationship between intention and moral responsibility. Certainly, quasibill has at least made me think again about the coercive enforcement of contracts. It seems to me, too, that quasibill’s essay points out disturbingly that “the common legal treatment of their contract language” often underdetermines the actual significance of the contracts people make.

Rothbard (yes, you’re thinking of the same passage I was) argues that “the only enforceable contracts (i.e., those backed by the sanction of legal coercion) should be those where the failure of one party to abide by the contract implies the theft of property from the other party” (Ethics of Liberty 133).

I’ve suggested some other mechanisms for enforcement here, so, even if I agreed with Rothbard about coercive enforcement, I’d still think there were non-coercive enforcement mechanisms available. But I suspect Rothbard would agree, and simply suggest that “enforcement” wasn’t the right word to use for what I was talking about.

My basic disagreement with Rothbard, though, concerns the notion that contract enforcement is a matter of remedying theft. I think (I’ll put this briefly, but I’m happy to continue the conversation) that a contract is a promise (while we disagree about a number of the details and implications, I agree at the general level with Charles Fried on this point). A contract is, I think, morally binding or non-binding for just the same reasons a promise is: it simply represents the formalization of a promise. Supposing, arguendo, that quasibill hasn’t persuaded us that the coercive enforcement of contracts in general is wrong, then I’d be inclined to say that whether coercive enforcement of an otherwise genuinely binding promise is morally acceptable will be a matter of cost-benefit analysis, as will the nature of the available remedy. (As an anti-utilitarian, I have fairly idiosyncratic views of how this might be accomplished.) Rothbard’s proposed rule gets the right answer in some cases, but it doesn’t do so, I think, for the right reasons. And it yields morally troubling answers in other cases (consider, say, the uncle who offers to pay a nephew a certain amount of money should he refrain from drinking until he reaches the age of twenty-one).

I’ve simply sketched my view; I’d welcome your response.

Neverfox said...

I'm definitely going to check out quasibill's essay. I find this subject important and fascinating.

As for promises as a basis for enforcement, I'm not yet convinced that they don't themselves lead to troubling conclusions, such as forced performance or the enforcement of non-rights violations. But I'm certainly not done thinking this over. Stephan Kinsella is probably the one of the most outspoken defenders of Rothbard's theory. Have you read his analysis of it? What are your thoughts?