tag:blogger.com,1999:blog-7257263697107031621.post551845819813833394..comments2024-03-28T00:15:06.567-07:00Comments on LiberaLaw: Enforcing Rights in a Stateless SocietyGary Chartierhttp://www.blogger.com/profile/05687278491211390956noreply@blogger.comBlogger11125tag:blogger.com,1999:blog-7257263697107031621.post-58034717366455205732009-02-08T01:49:00.000-08:002009-02-08T01:49:00.000-08:00I'm definitely going to check out quasibill's essa...I'm definitely going to check out quasibill's essay. I find this subject important and fascinating.<BR/><BR/>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 <A HREF="http://www.mises.org/journals/jls/17_2/17_2_2.pdf" REL="nofollow">Rothbard's theory</A>. Have you read his analysis of it? What are your thoughts?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7257263697107031621.post-25632391136888426742009-02-07T08:17:00.000-08:002009-02-07T08:17:00.000-08:00Neverfox:I was reacting to the lengthy and very th...Neverfox:<BR/><BR/>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.<BR/><BR/>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.<BR/><BR/>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).<BR/><BR/>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.<BR/><BR/>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).<BR/><BR/>I’ve simply sketched my view; I’d welcome your response.Gary Chartierhttps://www.blogger.com/profile/05687278491211390956noreply@blogger.comtag:blogger.com,1999:blog-7257263697107031621.post-34760606162219040502009-02-02T16:41:00.000-08:002009-02-02T16:41:00.000-08:00"And I'm suspicious of views in accordance with wh..."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."<BR/><BR/>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 <A HREF="http://praxeology.net/Spooner-Krakow.doc" REL="nofollow">"Inside and Outside Spooner’s Natural Law Jurisprudence"</A> makes this point very well but I also might be misunderstanding you.<BR/><BR/>"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."<BR/><BR/>I assume you are talking about Rothbard in Ch. 19 of <I>The Ethics of Liberty</I>. What aspect of it leads you to disagree?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7257263697107031621.post-66283904758366703562009-01-12T08:36:00.000-08:002009-01-12T08:36:00.000-08:00The kind of “decentralism” you describe seems to m...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 <I>doesn’t</I> 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 <I>does</I> matter a great deal to some people; cp. the conversation on my earlier post re. “Bargaining Power.”Gary Chartierhttps://www.blogger.com/profile/05687278491211390956noreply@blogger.comtag:blogger.com,1999:blog-7257263697107031621.post-92039482187579299492009-01-12T04:25:00.000-08:002009-01-12T04:25:00.000-08:00I'm probably much closer to your position than it ...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).<BR/><BR/>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).quasibillhttps://www.blogger.com/profile/01541454892654928186noreply@blogger.comtag:blogger.com,1999:blog-7257263697107031621.post-53367128975712159022009-01-09T13:38:00.000-08:002009-01-09T13:38:00.000-08:00I completely agree that we need to understand any ...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.<BR/><BR/>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.<BR/><BR/>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).<BR/><BR/>Again, I trust this conversation will continue.Gary Chartierhttps://www.blogger.com/profile/05687278491211390956noreply@blogger.comtag:blogger.com,1999:blog-7257263697107031621.post-69088779873999042142009-01-08T11:00:00.000-08:002009-01-08T11:00:00.000-08:00Since I consider my position to be a necessary imp...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:<BR/><BR/>http://the-bell-tower.blogspot.com/2007/12/contract-enforcement-consolidation.html<BR/><BR/>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.<BR/><BR/>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.quasibillhttps://www.blogger.com/profile/01541454892654928186noreply@blogger.comtag:blogger.com,1999:blog-7257263697107031621.post-53902497351893431322009-01-08T07:51:00.000-08:002009-01-08T07:51:00.000-08:00Got it. If all contract enforcement via damage awa...Got it. If all contract enforcement via damage awards are illegitimate, then certainly damage awards in this case would be—I completely agree.<BR/><BR/>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.<BR/><BR/>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.<BR/><BR/>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?<BR/><BR/>Thanks for clarifying and continuing the conversation.Gary Chartierhttps://www.blogger.com/profile/05687278491211390956noreply@blogger.comtag:blogger.com,1999:blog-7257263697107031621.post-72985149437853001432009-01-08T07:22:00.000-08:002009-01-08T07:22:00.000-08:00I was thinking of 6, specifically."Where contractu...I was thinking of 6, specifically.<BR/><BR/>"Where contractual boycotts are concerned, presumably damages don't raise coercion problems, because whatever damages are available were agreed to by the contracting parties."<BR/><BR/>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!quasibillhttps://www.blogger.com/profile/01541454892654928186noreply@blogger.comtag:blogger.com,1999:blog-7257263697107031621.post-23141602185714669262009-01-07T07:14:00.000-08:002009-01-07T07:14:00.000-08:00Thanks for this. I appreciate your nuancing the an...Thanks for this. I appreciate your nuancing the analysis with regard to the previous post.<BR/><BR/>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.<BR/><BR/>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 <I>declined</I> to impose damages for violation of a contract it judged to have been concluded in a manner misshaped by bargaining inequities.<BR/><BR/>So: could you say more, in light of the above, about your concerns re. #6 (or #7)?<BR/><BR/>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.<BR/><BR/>I'll be talking about the book and floating ideas here, and I hope you'll continue to be part of the conversation.Gary Chartierhttps://www.blogger.com/profile/05687278491211390956noreply@blogger.comtag:blogger.com,1999:blog-7257263697107031621.post-44039398958300729782009-01-07T07:01:00.000-08:002009-01-07T07:01:00.000-08:00First, and actually more related to the previous p...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.<BR/><BR/>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.<BR/><BR/>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.<BR/><BR/>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.<BR/><BR/>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.quasibillhttps://www.blogger.com/profile/01541454892654928186noreply@blogger.com