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Judge Time πŸ”— 1439057925  

I was listening to Anarchast the other day, and I heard an argument from Bob Murphy that really resonated with me vis-a-vis becoming an anarchist. He said that he managed to be a minarchist for many years, until he realized that the state doesn't even reliably provide law & order, and never has. I am reminded of the phrase "with friends like these, who needs enemies" -- but here it's "if you call this order, I'd hate to see what you think is chaos!" This made me realize that it was probably the law classes I took in college that made me realize how unnecessary legislatures actually are; as such, it didn't take much to realize that the rest of the state was a total scam after reading the Austrian Economists.

Looking back, I must say that there is definitely a good reason that law is not taught in US primary school; If it were, the strength, simplicity, and moral authority of common law would likely strike more people in the same way it did myself. Failing that, it might make people think twice about treaties, and raise a bigger stink about unconstitutional statutes. Maybe I'm an optimist, but I suspect most people going through that class would wonder why a constitution, statutes and treaties are necessary at all.

This is because it's really, really hard to beat the common-law definitions of crimes and torts:

Torts

A tort is any harmful action done by one person to another person, regardless of intent for which compensatory restoration is possible. If the act was intentional, triple the amount which would be sufficient to restore is to be levied as a disincentive to intentional harming of others.

Crimes

A crime is any harmful and intentional action done by one person to another person, for which compensatory restoration is not possible, either in whole or in part. Since all such harms inevitably violate a person's ownership of themselves, some valuation can always be put on a person's use of their body over time, which was cut short or stolen by crime; ergo all crimes are also torts. Traditionally the punishment for crimes was death, shunning/exile or enslavement.

I cannot think of any way a person, knowing the definitions as such, could be confused as to what is criminal & tortuous, and what is not. However, there are a couple of areas I think that this could be improved upon.

Harm vs. Lack of Gain

A place where significant trip-ups have been made in the past and resulted in some of the greatest evils of our time (namely monopolies/cartels and copyrights/patents) is the deliberation of when someone has been harmed, rather than prevented from profiting. Most people do not realize it, but the arguments in favor of copyrights and patents are identical to those behind monopolies and cartels -- namely that a person is harmed by competition. Put this way, the argument seems legally ridiculous; I am clearly not harmed by a person competing with me, I simply do not gain where they excel in contrast to myself.

However, it gets more complex when we get down to the personal level, such as is done with patent and copyright. Suppose I share some copyrighted works on-line. Have I harmed the copyright holder, or am I simply a competing distributor with a rock-bottom price preventing the copyright holder from profit? Reality has borne out the second view. If the copyright holder moves to a "name your price" model, they invariably capture more audience than "pirates" do. This means that the real problem the copyright holder had was price discovery; The number of people who were willing to pay the copyright holder's price was lower than the number of those who would prefer it at a lower price, and due to the monopoly nature of it had nowhere to turn but to "pirates".

So, since it is clear that there is a market remedy which acknowledges the way humans really act, why do we need a monopoly? Like all the other uses for violence, it is because the person does not have an actual argument; they are simply ignorant of a way to be rewarded for their intellectual efforts, and resort to waving guns around. It will take time for people to internalize these lessons; but like this generation of musicians, all will soon realize that their recordings are better used as a way to popularize their real moneymaker -- live performance. This notion is already taking root in silicon valley for patent-holders; they are beginning to realize that they can sell their employment in implementing said design easier & more profitably than the patent itself.

It is worth noting that these concepts (monopolies, copyrights, patents) are not common-law concepts, but were invariably put in by a statutory authority (e.g. Kings). This too leads me to believe that I am right to consider all of these legal fictions to be the result of mistaking Lack of gain for harm. Considering the hideous evils wrought by these legal notions, one realizes precisely why the law was limited to questions of harm; when we expand it to prevention of gain, it takes on an entirely arbitrary character. If it's legitimate to deserve renumeration from a person competing with you, it's legitimate to stop him from competing altogether via injunction or more extreme sanction. Such a standard quickly degenerates into "my way or the highway" for the most powerful interests in a country.

Punishment

Now, as to punishment for crimes, and treble damages, there is much controversy -- in simpler times, death was generally preferred; today most societies prefer enslavement (incarceration). I personally consider exile to be the most humane, due to the argument made by Clarence Darrow -- the courts, even if guided by such simple principles will make mistakes. As such, death and enslavement is criminal behavior towards the wrongfully convicted; exile alone is at worst tortuous -- access to a land can be restored. Of course, exile has been abused in the past, especially when one considers the punishments for violating it (outlawry) and how it frequently was coupled with asset confiscation. I suspect the only punishment which does no crime to those wrongfully exiled would be shunning.

Thinking on it, adapting the "first do no harm" from medicinal traditon into "first, do no crime when sentencing" would be a good, simple to understand addition to the common-law tradition. Such would send a clear message that our "justice" system is no longer about vengeance or exploitation, but about the pursuit of justice, no matter the cost.

Who's law is it anyway?

Speaking of the vengeful and exploitative legal punishments US citizens and visitors are subject to, it's also worth mentioning that it's completely arbitrary; from it's composition and interpretation to it's enforcement. The fact that our federal and state governments have three separate apparatuses for doing precisely these things bears this out; if our rules were not arbitrary, they would be:

  • Static, and not require composers (parliaments, dictators, etc).
  • Simple enough to be interpreted correctly by the layman (e.g. jurors)
  • Simple enough that enforcement could be conducted by the layman (e.g. militias/posses)
Arbitrary rules are dangerous precisely because if the determination of rules can be done at whim, it is also morally legitimate to enforce and interpret them at whim. If a congress, dictator or some collective comes to the point to where their word is law, can we really be surprised when the judges and police below them act in the same arrogant manner? As it is above, so it is below -- this is fundamentally why corruption happens, despite otherwise ethical people overwhelmingly staffing these organizations.

To add insult to injury our laws are not just arbitrary, but non-universal. Non-universal rules for humans means that some men are not subject to them, and all who are not subjects are rulers (e.g. above the law). This is clearly the root cause of the arbitrariness; furthermore it is a less robust system, as a limited number of rulers can never resolve the disputes of all the subjects as quickly and satisfactory as the subjects can themselves (see the economic calculation problem). Also, like with arbitrariness, we can expect those below the rulers to agitate for exemptions too -- corporations, "loopholes" and subsidies are all manifestations of this.

It is for these reasons that I realized that not only was the state unnecessary for the provisioning of justice, but actually hindered it's administration. For many years, I have struggled like many others in the "liberty movement" to find a way that I could make this superior system of common law, rather than statutory and administrative law live once more, and to make improvements upon it. It was not until recently that it occurred to me that the very arbitrariness of the system was the mechanism by which it could be defeated, if only at the local level.

Judge Time

To start, I would campaign for low office like JP or county court, and vociferously make the case that since the law is arbitrary and everybody's techincally a criminal (note "3 felonies a day", etc), nobody should really care if I ignore what's on the books and throw out all cases that don't fit the common law definitions of crimes/torts (who was harmed?)

Furthermore, nobody should really mind if my decisions get overturned on appeal; it's all arbitrary, remember? I'd also make a point of passing out FIJA pamphlets to Jurors, denying "fishing" warrants, granting habeas corpus, and doing various other things that would majorly piss off DAs. Hopefully it would get to the point where they wouldn't even bring cases before me; then I'd at least feel less put out from turning down the salary and running my court on donation. Failing that, maybe I could get away with a helping along some barratry or malicious prosecution suits against said DAs that have a penchant for railroading people. It would also be neat to have cops hauled in for harming people unnecessarily or under citizen's arrest, but I suspect I'd have to be bringing murder charges against the police if any citizen attempted such an arrest anywhere in the US.

You'll note I added that caveat "at the local level" earlier -- I have no doubt that if this were not a nationwide phenomenon, the existing power structure would find nothing at all wrong with caging or killing anyone doing this that made trouble for people "higher up the food chain". But, we have to start somewhere; this to me seems the place in which the liberty movement as a whole has the greatest disagreement upon.

Navel Gazing

Folks like Stefan Molenyux think we have to ignore politics and raise "the perfect socialist libertarian man" first, and that this will be a nearly endless slog. That sounds a lot like the fuzzy-headedness I hear all the time from the other side of the aisle -- e.g. communism only failed because they weren't communist enough. But it also has a grain of truth, much like agorism (just be free, ignore the state); If Mises truly is right, just letting the non-aggression principle work it's zesty magic long enough will make liberty lovers out-compete the parasites, who will slowly go extinct, or at least slide into irrelevance.

I'd say that in the end, the most likely strategy for achieving real gains for liberty in our lifetime is emphasizing that we want to opt-out of the state, like Murray Rothbard suggested. My strategy above, and a previous post I've made about suggested tax reform seem to fit in pretty well with that; and the more I think about an opt-out government, the more I like it. It's not just compassionate to those dependent on the current system and hard to disagree with (though I intend to make a forthcoming post on what objections exist, and why they're all some form of circular reasoning), but it's also practical; I seriously doubt I'd be able to use private roads exclusively for quite some time after universal-opt out was allowed. It also allows for those of us who want to be more hardcore in our embracing of the concepts of liberty to do so -- which means the Molenyuxites, Agorists and Praxeologists could test our approaches towards the pursuit of happiness too.

This, in some ways makes me wonder why there is this feeling of schism at all in the movement. Is not the true way of liberty to "lassiez faire"? Should not the best path to liberty not constrain oneself to a single path? I guess we can all lose sight of the big picture in the frustrating battle against statism; maybe all this subtle insinuation of division is all just a psyop, like Alex Jones suggests. Judging by the actions of the movers and shakers in the movement, they all seem to get along well enough to hang out at PorcFest, FreedomFest and Libertopia just fine. As such, I think much like Ben Stone does on this subject; we are all still growing in our understanding of humans and liberty. As such, the plank in our own eye can be hard to see sometimes.


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