We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Samizdata quote of the day

I’ve yet find an area that I’ve studied extensively where the arguments justifying the state stand up to historical evidence. I think the state’s takeover of these aspects of human life occur for different reasons than the reasons currently given for the state in those areas, and that what we see is a lot of ex post rationalisation to justify the state. I haven’t looked at every area, and certainly may find some where I wouldn’t make that argument. But I have yet to find one.

- Bruce L. Benson (one of the speakers at the LA/LI Conference last weekend) talks about his work to Patrick Crozier – the whole thing lasts a little over 15 minutes

35 comments to Samizdata quote of the day

  • Instead of looking at politics as an attempt to solve problems per se, I think that we should look at politics as primarily a form of social competition i.e. a means by which certain individuals and groups gain dominance over others.

    There are very clear patterns in what kind of circumstances different groups identify as problems requiring a violent solution by the state and the specific type of solution that those groups chose out many possible ones. I think most political ideologies start not with an idea of how to solve various problems but rather with a desire to make the adherents the highest status members of society.

    Marxism for example, really boils down to an attempt to create a world in which only the western articulate intellectual will have any unique status or influence in society. Socialism seeks to create a world in which an individuals material productivity gives them no special standing. If people are no longer distinguished by material productions or possession, then the only criteria for standing out will be an individuals level of articulation.

    I think generations of Western articulate intellectuals have clung to marxism because it tells them that they are predestined to justly rule over all other people. Its a powerfully seductive vision.

    I think most modern Leftist can be viewed as part of a widespread attempt by the articulate to control the productive. In areas as desperate as crime control and climate change we see a repeated pattern in which intellectuals either claim that either they alone have the tools to solve the problem (education and therapy in the case of crime) or the moral rectitude to manage resources for all (in the case of climate change.)

    I don’t think Leftist are alone in the tendency. Indeed, I think it a universal human impulse. Yet the Left, via their near monopoly control of education and communication have successfully disguised the fact that they consistently seek a selfish class advantage in every political debate. Merely pointing out the pattern maybe enough to loosen their conceptual hold.

  • Paul Marks

    Some times the procedure is to produce lots of evidence that the world is (shock, horror) nasty in some respect. Then after lots of displaying of the said nastyness (people starving to death, children being raped – or whatever) a new bit of statism is approved.

    The unspoken assumption is, of course, that the growth of the state will improve matters – rather than make them even worse (or worse than they would have become – as things do not just remain as they are over time).

    However, sometimes there is not even this level of justification for statism.

    For example, the reports of Edwin Chadwick in the 19th century (which were used to justify everything from government police to government drainage and water supplies) were full of blatent lies.

    Mr Chadwick left some things out of his reports, and just made other things up – all to show voluntary efforts at improvment in the worst possible light.

    The thinking was as follows:

    There is no such thing as good and evil separate from the greatest happiness of the greatest number (for that is how Mr Chadwick, and others, defined a good or evil act – whether it led to this happiness or not).

    The greatest happiness of the greatest number would be best served if various government departments (Mr Chadwick’s master Jeremy Bentham thought there should be 13 great government departments) took over various aspects of human existance.

    To achieve this happy result (i.e. the greatest happyness of the greatest number) one needs to tell various lies to convince the unenlightened.

    Therefore telling these lies is a good thing.

    Of course, even from the utilitarian point of view there is a flaw in the above.

    If one needs to build a case against voluntary effort and in favour of statism by telling various lies, is it not possible that the greatest happyness of the greatest number would be best served by allowing this voluntary effort and not replacing it with statism?

    Shannon Love would not be astonished to learn that there seems to have been an ideological block preventing men like Mr Chadwick asking themselves this question.

  • ian

    For example, the reports of Edwin Chadwick in the 19th century (which were used to justify everything from government police to government drainage and water supplies) were full of blatent lies.

    Mr Chadwick left some things out of his reports, and just made other things up – all to show voluntary efforts at improvment in the worst possible light.

    I think a statement as sweeping as that one really needs to be backed up by some evidence (see comments about Mr Monbiot on the previous post)

  • Paul Marks

    ian

    I doubt that you would regard my old memories from many years ago when I studied Mr Chadwick’s activities as good evidence (especially as you can not enter my mind).

    Of course, to me it is very strong evidence indeed – which is why I wrote the comment.

    This is the difference beween a comment (using Chadwick as a example of something that often happens) and a book – where one would need to cite lots of stuff.

    Of course there are examples of fraud I can present to you.

    For example, in “Education and the State” (1965) E.G. West gave chapter and verse proving that a lot of the things the pro state education people in 19th century Britain said were lies (not mistakes, lies – they knew the picture they were presenting was untrue).

    And in the “Constitution of Liberty” (1960) F.A. Hayek (for example) shows the deliberate distortion of statistics that were used to justify the American “Social Security” scheme.

    This presenting of evidence by West and by Hayek did them no good at all.

    And, I suspect, that if I had a fist full of letters from Mr Chadwick right to hand (openly confessing X, Y, Z, for example how voluntary efforts to maintain law and order were to be discredited) it would not do me much good – however I have no such evidence to hand (just old memories) so I can not test that theory of mine.

    The most blatent lying is often from “great lovers of freedom” in their “classic texts”.

    For example, J.S. Mill in his “Principles of Political Economy”.

    Everyone agress with the Labour Theory of Value – totally untrue and he knew it was untrue.

    Everyone accept that government must provide street lighting and drainage and police and …….

    Again totally untrue and he knew it was untrue.

    Yet J.S. Mill is a “great man” – even to libertarians (indeed especially to libertarians).

    Mr Chadwick was just like him – accept that he want in for detailed “scientific” looking reports.

  • AnotherJohn

    How to spot a crank, lesson #263:

    “I studied the matter for many years before reluctantly concluding that …”

    This clip was included for comedy value, right? Or is it actually necessary to debate whether laws made and enforced by local warlords would be a Good Thing?

  • This clip was included for comedy value, right? Or is it actually necessary to debate whether laws made and enforced by local warlords would be a Good Thing?

    Quite so, how could he write such silliness when everyone knows that state monopolies produce better cars and refrigerators and banks and education and all the other things state monopolies do (or have done in the past) compared to competing market driven solutions.

  • AnotherJohn

    But who watches the watchers? I don’t think I’m the first to have asked that question …

    I have never seen a remotely coherent argument for private law making or enforcement. The analogy between ‘enforcing the law’ and ‘making a car’ doesn’t really do it for me. I can see how you can make a car without resorting to the use of force, but I can’t see how you can enforce the law without doing so.

    What have I missed?

  • “Because I’ve studied it” is indeed the Argument from Authority. It’s a close cousin to Ad Hominem. And though they are not logically valid, these arguments tend to be both useful and valid. They’re hardly diagnostic of cranks.

    Argumentum ad baculum is equally useful. (Believe me, or I’ll hit you.) It means you should flee the person and their beliefs as rapidly as possible.

    Presenting some documentation of points related to the point made should be sufficient in blogtopia. We can do the heavy footnoting in our books. (And if I wanted to produce heavily-footnoted books of lies, I could do it. All I need do is seek out books by fools and liars, and take my footnotes from them.)

  • nick g.

    Q. How many politicians does it take to change a light bulb?
    A. None- they spend all daylight hours in their graves, but they have perfect nighttime vision!

  • ian

    Argument from authority only works when one has some respect for that authority. Without wishing to sound insulting, I know nothing about Paul Marks other than his posts here, which tend largely to be of the same format as the comment I was criticising.

    Unsubstantiated statements accusing someone of lying (even when they are dead) are of no value without evidence. I realise of course that by and large people here are talking to fellow travellers, but in the wider world there are many others who could be persuaded if you dropped the ridiculous hyperbole and offered rational argument – which means something beyond bald assertions.

    Presenting some documentation of points related to the point made should be sufficient in blogtopia.

    Dr Ellen above. I agree. I’m not asking for each and every comment to be fully supported by learned citations – but a wee bit of evidecne would be nice…

  • Paul Marks

    ian

    It was a comment, not a post.

    If it had been a post I would have dragged up all the old quotes.

    Of course I was specific about the lies of J.S. Mill (books I can still get my hands on – 19th century government reports I have not looked out in 20 years) – I listed some specific lies and the book where you can find them (“everyone” accepts…… things he knew perfectly well that everyone did not accept).

    Being specific did not do me much good did it?

    However, if you want me to be specific about the private provision of utilities in England in the 19th century – Newcastle. Regulations undermined things a bit – but it was still there.

    That specific enough for you?

    As for the 1875 Act (demanding that local councils provide various Public Health stuff whether the local voters wanted them or not). Either you support “local democracy” or you support 1875 Act. You can not have it both ways.

    Again, is that specific enough for you?

    AnotherJohn

    There was time when even establishment lawyers did not hold that governments “made” the law.

    Law was “found” – i.e. it was an effort to apply the non aggression principle of the Common Law to the circumstances of time and place.

    How this applies to the “warlords” who are trying to be governments (normally so they can “distribute” income and wealth to themselves and their supporters) is not clear to me.

    The dream of Thomas Hobbes and others of what have come to be called “Legal Positivists” (i.e. people who argue that any COMMAND from the biggest power is “law”) would seem to discredit rather than support “the law”.

    For example, if law is just the commands of the big boys why should one “respect the law” (“because they will smash your face in if you do not” does not seem like a good moral reply).

    And what is the difference between these big army types from the very “Warlords” you say you oppose?

    Even Aristotle (hardly a libertarian extremist) said that the difference between a King and a Tyrant (between Monarchy and Tyranny) was that King respected the law (a Tyrant does not).

    Just as the difference between an Aristocracy and an Oligarchy was that the group rule of an Aristocracy was under the law (an Oligarchy was above the law).

    And the difference beween a “democracy” (in the sense of mob rule) and a polity where most farmers (or other ordinary folk) had the vote was that in the latter the majority were under the law.

    If “the law” is just the commands of those in power all the above is meaningless.

    “And it is meaningless, you have just typed a load of tripe”.

    Your loss.

  • Paul Marks

    By the way, if anyone wants an example of a county that was generally law abiding before the 1856 Act made big police forces compulsory – Northamptonshire.

    I mention it because I am sitting in it (it would be difficult to be more specific than that).

    But the same could be said of most counties.

    Of course there was crime – but there continued to be after 1856.

    Nothing is perfect (one of the reasons that “perfect competition” theory is idicated as dodgy just by the name.

    For example, “back-to-back” housing can be nasty. But it is better than sleeping on the streets because you can do not have the money for the “better” housing.

    So it was a good thing that Leeds got left out of the ban on “back-to-backs” imposed by the 1875 Act – even though “back-to-backs” are often nasty.

    In law and order – I have no doubt that many areas of London and other big cities had a lot of crime before the police forces were created.

    I am NOT even saying I am against the creation of these forces.

    But what I am saying is that it is not good to try and discredit any voluntary effort in this area because you are ideologically opposed to it – and that is what was done.

    As for water supply.

    The reason that people did not care much about cholera in the 1820s is because it was virtually unknown in England – it was a new problem that hit (if my old memory serves) in the 1830′s.

    Once it was clear that it was the water supply that was the cause (and it was NOT clear for some time – many respected scientists said it was not, and they were not in the pay of “big business” or anything like that) then people would act, IF THEY WERE ALLOWED TO, without any special need for the government (local or nationl) to come along.

    Or do you let your ears freeze if your dad will not buy you a cap?

  • Tedd McHenry

    AnotherJohn:

    I have never seen a remotely coherent argument for private law making or enforcement.

    If you would like not to be able to make that statement anymore, read “The Structure of Liberty” by Randy Barnett.

  • ian

    Paul:

    Who rattled your cage? I said it was a comment and I recognised that it wasn’t appropriate to have full documentation. So calm down eh? But remember also if you don’t provide an argument or evidence I am equally able to say that you have it wrong, you are making it up and say I know that because I remember reading it 20 years ago. And before you burst a blood vessel – I’m not but I could and it would be as valid an argument as yours.

    AnotherJohn:
    The whole system of mercantile law and international contract operated for probably hundreds of years without government interference. That is of course very different from rounding up the local scallywags breaking windows, but ‘private’ law does have precedents. On the other hand we have Blackwater in Iraq…

  • Paul Marks

    Sorry ian.

    Of course what irritated me was not really you at all – it was ME.

    The fact that I could not remember the exact chapter and verse and say “on page X of such and such report, Mr Chadwick says….. which he clearly knew to be false as is proved by……”.

    At one time I could have done. It angers me that I can not do it now.

  • Chadwick believed putting trained and selected experts in charge of things rather than the principle of local self-government elected representation and favoured centralized systems of administration (as per his 1834 report on the poor Law)

    Ref:
    The Evils of Disunity in Central and Local Administration and the New Centralization for the People, by Edwin Chadwick (1885)

    Granted he thought, or at least claimed that, disease among the working classes, was caused by “atmospheric impurities produced by decomposing animal and vegetable substances, by damp and filth, and close and overcrowded dwellings.” But he was in the right ball park.

    He is credited with promoting clean water and sewage systems

  • That is of course very different from rounding up the local scallywags breaking windows, but ‘private’ law does have precedents.

    It still widely exists, often in professional and trade associations. For instance, the as well as rating films and pursuing copyright violaters, the Motion Picture Association of America (MPAA) provides rules under which Hollywood studios operate and provides tribunals to arbitrate disputes between studios. (Power is delegated/shared with other bodies such as Writers Guild/Directors Guild etc). It can impose fines and awards damages to one studio over another. In combinations with the guilds, it also provides what is essentially employment law – rules with respect to working conditions and pay for people who work in the movies.

    Nothing here is formally legally enforceable, but a studio that did not comply would be thrown out of the MPAA. The disadvantages to its business of this are such that no studio would consider doing so, as long as the MPAA continued to behave in a reasonable way. If its rulings became too unreasonable, the studios would be free to leave it en masse or to reform it in a way that they could not reform a formal government. Smaller film studios that do not belong to the MPAA are free to operate outside its rules.

    The threat of exclusion (“You will never work in this town again”) is often quite strong enough to make a private legal system work with respect to commercial law, as is discussed in the podcast that led to this discussion. As to whether this kind of arrangement would work for criminal law, that is another matter, although banishment certainly has been historically used as a criminal punishment. However, the bulk of law is not criminal.

  • Stephan

    I am inclined to believe that the reason the majority of people who accept the state do so is simply one of appreciation for neatness. The idea of a great overreaching agency responsible for all factors of life through various, neatly defined departments seems a lot neater then the apperant anarchy and disorder of millions of great and small competing agencies.. I can’t say for sure about the intellectuals and such types, but even with them I would argue that their love of statism has elements of the above-mentioned mixed in with their dreams of control. Maybe they think that it would all be so much neater if one central authority regulates it all, and additionally, that they just so happen to be in charge of that authority.
    Of course, this concept of neatness completelty disregards the profound complexity of the human world. And thus, thats why whenever its implementation is attempted, the result is chaos and disorder.

  • Stephan

    I am inclined to believe that the reason the majority of people who accept the state do so is simply one of appreciation for neatness. The idea of a great overreaching agency responsible for all factors of life through various, neatly defined departments seems a lot neater then the apperant anarchy and disorder of millions of great and small competing agencies.. I can’t say for sure about the intellectuals and such types, but even with them I would argue that their love of statism has elements of the above-mentioned mixed in with their dreams of control. Maybe they think that it would all be so much neater if one central authority regulates it all, and additionally, that they just so happen to be in charge of that authority.
    Of course, this concept of neatness completelty disregards the profound complexity of the human world. And thus, thats why whenever its implementation is attempted, the result is chaos and disorder.

  • Tedd McHenry

    Stephan:

    I am inclined to believe that the reason the majority of people who accept the state do so is simply one of appreciation for neatness.

    There’s probably some truth to that. But I’m reminded of a story a friend of mine who worked for IBM told me. They held a “problem solving workshop” in which the group worked to solve fictional problems in the office (for example, the coffee urn being left empty). What she noticed was that, unless encouraged to do otherwise, the group always settled on the creation of a new rule (and an enforcement mechanism) to solve a problem.

    Perhaps this says something unique about IBM employees, but I doubt it. It takes a higher degree of effort and creativity to solve problems by any means other than making rules and enforcing them — especially if the necessary institutions already exist.

    So statism is simply the default option, the path of least resistance, for most people.

  • AnotherJohn

    I can see I’m well out of my depth here, but anyway …

    Paul Marks wrote:

    There was time when even establishment lawyers did not hold that governments “made” the law.

    Law was “found” – i.e. it was an effort to apply the non aggression principle of the Common Law to the circumstances of time and place.

    I was under the impression that this is the supposed principle by which the law is made under the current system, the problem being that it is so ambiguous as to admit any interpretation ranging from outright anarchy to totalitarian socialism.

    Tedd McHenry

    The book you cite looks like an impressive tome – I will endeavour to obtain a copy without dropping £28 :)

    From the description:

    These problems are dealt with by ensuring the liberty of the people to pursue their own ends, but addressing these problems also requires that liberty be structured by certain rights and procedures associated with the classical liberal conception of justice and the rule of law.

    He goes on to outline the constitutional framework that is needed to protect this structure of liberty.

    That sounds like the usual libertarian / classical liberal / minarchist fare to me. Small, constitutionally limited, publically accountable government. My hope/fantasy is that one day this argument (or something similar) will be established with such rigour that its proof can be verified by machine, just like mathematics. Leftist/statist/collectivists can deny common sense, but they cannot deny logic :)

    In the meantime, I would be grateful if someone could explain briefly how free market principles can be applied to the robust framing, enactment and enforcement of the law (not just civil/mercantile – the whole kaboodle) without being even more vulnerable to hijack by special interests than a suitably devised governmental system.

  • Tedd McHenry

    AnotherJohn:

    That sounds like the usual libertarian / classical liberal / minarchist fare to me…

    In the meantime, I would be grateful if someone could explain briefly how free market principles can be applied to the robust framing, enactment and enforcement of the law (not just civil/mercantile – the whole kaboodle) without being even more vulnerable to hijack by special interests than a suitably devised governmental system.

    Barnett does argue for limited, constitutional government, so you’re right that it’s minarchist in that sense. But read the book. I think you’ll be impressed by the depth and thoroughness of his arguments.

    If there’s a “brief” explanation of what you asked for I’m certainly not equipped to provide it. But a good portion of Barnett’s books are devoted to explaining how the law can be legitimated either by unanimous consent (a much more reasonable proposition than you might expect) or by constitutional provisions that ensure liberty. For me, Barnett’s arguments are head-and-shoulders above any other libertarian arguments I’ve read.

    For an excellent discussion of the legitimacy of the law, regardless of its source, I also recommend another book by Barnett, “Restoring the Lost Constitution.” This is mainly about the U.S. constitution, but the discussion of constitutional principles is, for me at least, quite eye-opening.

  • In the meantime, I would be grateful if someone could explain briefly how free market principles can be applied to the robust framing, enactment and enforcement of the law (not just civil/mercantile – the whole kaboodle) without being even more vulnerable to hijack by special interests than a suitably devised governmental system.

    I’m astonished nobody’s cited The Machinery of Freedom(Link) yet, a handful of chapters of which are webbed here(Link).

  • AnotherJohn

    Andy Wood

    Thanks for the link – I read section 29 on law enforcement, though I’m afraid its exactly the sort of thing I’ve seen before: a list of hypothetical what-ifs full of mights and maybes that can justify anything. One could write in support of Communism in precisely the same terms, with appeal to similar misconceptions of human nature.

    We can be absolutely certain of one thing: the institutions described do not inevitably arise from anarchy. What does arise is a corrupt, totalitarian dictatorship that is virtually immune to internal overthrow. Outside intervention or dumb luck are the only ways to avoid it. Human power stuctures are naturally hierarchical, and people hate competition – given complete freedom, they do everything in their power to undermine it in their favour. The rest follows.

    Far be it from me to criticize a man of such learning as Professor Friedman, but it seems to me that he makes the same error of reasoning as do other political theorists, by failing to account for the fact that human self-interest is not entirely material. The natural currency of human societies is surely psychological.

  • We can be absolutely certain of one thing: the institutions described do not inevitably arise from anarchy.

    Actually, if you read more of what Friedman has written you’ll find out that he doesn’t advocate simply abolishing the state and hoping that the institutions he describes spontaneously arise as if by magic. The chapter entitled “Revolution is the Hell of it” makes that clear. Rather, he suggests incrementally privatising those functions of the state that we need and abolishing those that we don’t need until the state ultimately disappears. Of course that would require persuading enough voters that his ideas worth trying, which may require a miracle.

    Anyway, I don’t intend to say any more than that. Past experience of online arguments tells me that, great fun as they are, they suck up way more time than I have available at the moment.

  • Paul Marks

    Phil A.

    Quite so.

    This is why (for example) Mr Chadwick set up a nationwide “Public Health Board” (I believe the thing was got rid of 1860).

    On the Poor Law the election of Poor Law Guardians by the local ratepayers (including female ratepayers, if what is left of my memory serves), was one of its advantages.

    There was too much central direction (for example Leeds and Bradford, and so on, were instructed to build workhouses they did not want) – but there was still some local flexibilty.

    Also (and very importantly) the people who got benefits did not have a vote. If the people who get benefits (either local or national) also have the vote the whole thing runs off towards bankruptcy.

    AnotherJohn.

    I do not know whether you are out of your depth or not, but the nonaggression principle of the Common Law is hardly the same thing as “totalitarian socialism”.

    Indeed it is just about the opposite.

    The one is based on private property rights – and the other on the denial of private property rights.

    “But lawyers can become corrupted” – quite so, and so can legislatures.

    As well as Law Merchant (and the private courts that dealt with most commercial disputes till Lord Mansfield brought Law Merchant ideas into the government courts in the late 18th century). There were other things as well.

    For example, on my last visit to Ludlow (indeed, sadly, my only visit to Ludlow – I would advise anyone to visit if they can) I noted a sign on a building advising people that it had been the “market court” where crimes in the market could be dealt with whilst “the dust of the market place was still upon the people concerned”.

    Now I am no great fanatic for private law. But it is a complicated matter – not one just to be dismissed (or one that can only be found in the Middle Ages – although there are some interesting examples of competing legal systems there, such as between Crown and Church courts, oddly enough [to the modern mind] the latter tended to give better justice and were normally less brutal).

    One can argue these things both ways.

    For example, one can say that in the old Icelandic Republic (which lasted longer than the United States has) one could choose which Judge decided a case.

    One can say “look competing legal systems” or one can say “yes but the choice was limited to these few people all of whom had a similar view of the law”.

    One can also say “but a man did not have to pick any Judge”.

    But the reply will come “but if a man rejected all of them and rejected the judgement of the people assembled [the Althing] he bacame an “outlaw” and anyone was allowed to kill him who was able to”.

    Ditto with most systems of competing law.

    Normally there were limitations on how many choices the accused and the accuser had.

    And there was a provision to deal with the problem of an accused and an accuser not agreeing on what court to go to.

    Even in the Middle Ages going to a Church Court was a problem if you wanted the death penality for murder as (again oddly enough to the anti Church modern mind) Church Courts hardly ever passed a death sentence.

    So an accused would try and get into a Church Court (perhaps by claiming to be some sort of priest or at least having some Church role “benefit of clergy”) and an accurser (say someone who had seen a person brutally murdered in front of them and wanted the murderer hanged) might want the case to be decided in a Royal court.

    One can not always get agreement between the parties on what court (in competing systems) is to be used – so there has to be a way of deciding when there is no agreement.

    In Iceland the way was “well if you can not agree on a Judge, it goes before the Althing” (i.e. the people assembled – although this was rare as everyone had to pick a Judge that they would be subject to in advance of any offense, yes they could refuse to be judged by him but that was like shouting “I AM GUILTY” to the Althing). Which is hardly anarchist – it is more like “direct democracy” (like a New Hampshire town meeting or a few of the Swiss Cantons).

    To be fair, the “anarchocapitalists” know the above well, and think that they have various solutions for it.

  • Sunfish

    Arranging for competing courts to hear the actual trials is interesting. I’m not in love with it. To be honest, I would call myself opposed but willing to listen.

    However, what of the pre-trial matters?

    In US law, many searches are conducted by judicial authorization gained without defendant involvement. Defendants do not get called to give their opinions on the issuance of a search warrant. What happens is, I present my affidavit to the judge[1] and he either signs the warrant or tells me to go away.

    What happens when, I go and get a warrant in the manner established by law, and show up to serve it, and the owner or occupier of the “property to be searched” says “Sorry, but he’s not MY judge?”

    A related problem: When I charge someone with a misdemeanor or traffic violation, It’s highly unusual to arrest him right then. What we normally do is[2], we give them a summons to appear at a given date and time in either the city or county court. They are advised of their rights and can enter their plea or request a continuance at that date.

    How do we deal with the guy who says he wants to go to Joe’s House of Chicken, Waffles, and Traffic Court?

    Also, what of the guy who’s arrested and booked? By law, he must be presented to the court without “undue delay”[3]. Again, what happens when he wants Joe’s?

    [1] People accuse us of judge-shopping to try to find a pliant judge to approve warrants that should not be approved. The truth is, we’ll take the first judge we can even find regardless of how nice he is to us.

    [2] In Colorado. If it’s classed as a misdemeanor, it’s technically arrestable but the legal preference is to summons and release unless we have specific reason not to. Other states will seize a driver’s license as an appearance bond for traffic violations. Some will also book and release (transport the defendant to a police station or jail, photograph and fingerprint, and then release on a signed promise to appear) on misdemeanors where we’d just take a signed promise to appear at the scene. That’s both the beauty and the headache of the Federal system: everything I say on SD is wrong 50/51ths of the time.

    [3] Usually the first court day after the arrest, if he’s still in custody. Most post a cash or surety bond and leave the jail within a few hours of the arrest.[4]

    [4] Exceptions: certain offenses require that the arrestee sit in custody until he sees the judge, end of discussion. Domestic violence offenses and protection order violations are the most-common examples.

  • ian

    There are many areas where the state does not need and therefore should not get involved, although law enforcement is probably not, in my view anyway, one of them.

    Most of those areas are likely to be at the local not the national level.

    The biggest problem of the so-called privatisation of local government services under Thatcher was not the idea, but the implementation. Take as an example refuse collection. All that happened was that one monopoly provider – the local state – was exchanged for another – a contractor working for the local state. The local householder was still not given the opportunity to choose.

    Why do local authorities provide swimming pools and leisure centres? The pat answer is that it makes facilities available to those who cannot afford commercial services, while the reality is that those who can afford simply get the service cheaper. The same applies to art centres and galleries and many other services.

    The problem however is with services like pest control where failure of an individual to take adequate control measures can impinge seriously on others. In the absence of state intervention the usual remedy offered is a recourse to the courts. My experience however, in a relatively minor dispute with a negligent building surveyor has been that in smaller cases lawyers cost so much that their fees significantly outweigh the losses.

    If those others are to be protected without state intervention, we need to find remedies that don’t depend on the employment of lawyers. There are methods like mediation and arbitration, but they still cost big money and are not binding.

    Too often, proponents of non-state solutions seem to ignore the problems of the small guy. In practice it seems that they would be excluded from most private legal remedies likely to be available to them.

  • I agree with the overwhelming majority of that, Ian.

    Too often, proponents of non-state solutions seem to ignore the problems of the small guy.

    That is true. There are certainly ways around that but all too often they are glossed over by free market advocates.

    In practice it seems that they would be excluded from most private legal remedies likely to be available to them.

    I suspect the biggest source of ‘exclusion’ is likely to be state imposed barriers to market entry by new businesses.

  • Midwesterner

    Sunfish,

    I see private courts more as a binding arbitration association. In effect, a constitutional contract between its members. At the time you apply to be accepted by an arbitration association, you agree to particular terms (for example, the conditions under which your membership is consent to have your property searched). Multiple binding arbitration associations would deal with each other, not each other’s members.

    So I belong to binding arbitration association A, you belong to binding arbitration association B. You think I stole your Hello Kitty AK-47 out from under the seat of your hot tub. You can provide supporting evidence that meets the terms of your binding arbitration association (B), and request they ask my association (A) to authorize a search my property. It would then depend on the agreement they have with my association (A).

    Disreputable associations would be, as Paul descibes, ‘outlaw’ to the reputable associations. There would be no benefit to joining them because, without reciprocity, you would have no protection from non-members.

    It would probably not be unusual to also join specialty associations that would have limited jurisdiction in narrowly defined circumstances (like a homeowners or condo association). Or for that matter, join both associations A and B.

    I’ve actually gone so far as to, several years ago, lay out the basic outline for these binding arbitration associations, but I haven’t published it anywhere. My goal from the start was to address what is classed as ‘criminal’ rather than just civil, to address the authorization and use of physical force and to, throughout the process, create a system of consent based, market driven ‘law’.

    The greatest obstacle I find is the ‘defining what government should be’ mindset that accepts, as part of its meta-context, that government is something independent and superior to the people. Equating “government” and “the people” is an intrinsically collectivist mind-set that all too many otherwise sensible people accept without question. I try to get people to think of government as a great big corporation and then, even some who lean toward the left find it easier to leave that mindset behind and begin to think more of solving the problems of human relations, not building the perfect government.

  • Ian:

    lawyers cost so much that their fees significantly outweigh the losses.

    But it does not have to be this way. Ideally, a lawyer should be able to practice without the approval of the bar, and a person should be able to be represented by anyone they choose, including themselves.

  • Sunfish

    So I belong to binding arbitration association A, you belong to binding arbitration association B. You think I stole your Hello Kitty AK-47 out from under the seat of your hot tub. You can provide supporting evidence that meets the terms of your binding arbitration association (B), and request they ask my association (A) to authorize a search my property. It would then depend on the agreement they have with my association (A).

    A practical question: Often, with such searches, time is of the essence. How long does it take to invoke the agreement between A and B? From there, how long would it take for A to actually conduct their search/investigation?[1]

    Disreputable associations would be, as Paul descibes, ‘outlaw’ to the reputable associations. There would be no benefit to joining them because, without reciprocity, you would have no protection from non-members.

    “No protection” meaning…no recourse to the structure of the agreements between associations, if the members of B and C decide to kick in the door of a member of D and trash the place?

    I’ve actually gone so far as to, several years ago, lay out the basic outline for these binding arbitration associations, but I haven’t published it anywhere. My goal from the start was to address what is classed as ‘criminal’ rather than just civil, to address the authorization and use of physical force and to, throughout the process, create a system of consent based, market driven ‘law’.

    If you have that around, I’d love to see it. The last serious effort I saw on this [2] was back in the bad old days of Usenet. I don’t know where to host it, but maybe if we’re reeealy nice to Perry….

    The greatest obstacle I find is the ‘defining what government should be’ mindset that accepts, as part of its meta-context, that government is something independent and superior to the people.

    I suspect that part of it is…a private association is accountable mainly to its members. A corporation is accountable to its shareholders. However, the behavior of these types of entities can profoundly affect people who aren’t members. Government is like these, except (hypothetically) everybody subject to its actions is a shareholder or member.[3] Therefore, (hypothetically) government is accountable to everyone affected by it.

    (I hear someone saying, “Accountable! Now pull the other one!”)

    According to Jerry Pournelle in the forward to Heinlein’s non-fiction politics book, going into the 1994 elections, the (popularly-elected every two years) US House of Representatives had less turnover than the (mainly hereditary) UK House of Lords. And as far as I can tell, the “Unitary Executive” means that the Executive Branch is accountable only to the President, and the President is accountable to..well, not the voters anymore.

    While I’m still sympathetic to the notion of a general government of limited power and limited purposes, the last paragraph is why I’m not an evangelist for it anymore.

    [1] I’m not going to waste your time with the argument, “What about A obstructing things in order to protect its members?” I’ve seen actual police departments do that too. Maybe a private scheme would be worse, but it’s not a new problem unique to this hypothetical world.

    [2] mostly due to my being lazy.

    [3] People overseas, who are convinced that they should vote in US elections because our electing Bush ruined their lives, will probably have something to say about this.

  • From the ASI’s posting of 2nd November, What Do We Need Government For:

    Adam Smith had it right in 1776 when he laid out the three (limited) duties of government: (1) “protecting the society from the violence and invasion of other independent societies”; (2) “establishing an exact administration of justice”; and (3) “erecting and maintaining certain public works and certain public institutions, which it can never be for the interest of any individual, or small number of individuals, to erect and maintain…”

    Does anyone know whether Bruce L. Benson has studied any of those extensively, and so disagrees?

    Best regards

  • Midwesterner

    A practical question: Often, with such searches, time is of the essence. How long does it take to invoke the agreement between A and B? From there, how long would it take for A to actually conduct their search/investigation?[1]

    My presumption is that a reputable association ‘A’ would accept your proof of membership in ‘B’ and act immediately according to their pre-existing agreement. You would approach my association ‘A’, state your case and ‘B’ would probably find out officially after the fact. I suspect that they would be substantially faster than most government agencies.

    “No protection” meaning…no recourse to the structure of the agreements between associations, if the members of B and C decide to kick in the door of a member of D and trash the place?

    I imagine being without protection of an association would be a very scary place indeed. Belonging to an association of criminals would not be protection from legitimate associations. No reciprocity. But unlike the association I belong to now, the one called “US citizen”, I would be able to choose between various ones, or even associations of associations. Think how Mastercard and Visa work. Merchants all over the world will extend huge amounts of trust based on the words and track record of the umbrella organization.

    There would be no structural reason to not belong to both respected association ‘B’ and criminal friendly association ‘D’. But if you were yourself a criminal, chances are ‘B’ wouldn’t have you. And in any case, you would still be bound by your terms with ‘B’. Just like credit, we would probably work to build up our ‘respectful of others’ ratings.

    If you have that around, I’d love to see it.

    Calling it ‘pre-beta’ would be generous. It is entirely in html with tables. It is almost fifty pages ranging from a few sentences to completely empty, to some that require scrolling.The content is structurally pretty complete on the individualist side, but could do with quite a bit of polishing. The collectivist side is utterly vacant except for the basic collectivist essentials. I like the overall layout of the site and would like to keep the general look and layout, but it is about ten years out of date technically. And most importantly, I don’t want to post it to open forum until it is presentable and I have supporting web2.0 type stuff ready for it. ‘You never get a second chance…’ etc.

    I suspect that part of it is…

    I think it is deeper than that. Having needed to break myself of the delusion, I can describe it as just the tacit assumption of government as a given, something to be modified. Of having existence in its own right and that all geographical areas need to have ‘a government’. Rejecting the idea that a single monopolistic government is imperative does not preclude a solution that includes a single monopolistic government, but it does refocus the questions to solving problems, not tuning ‘the’ government. My epiphany came when I was looking into The East India and Hudson’s Bay Companies, not to mention the common commercial form early colonial governments took.

    Government is basically a corporation with a self enforced monopoly over ‘its’ geographic area and anybody that it claims is one ‘its’ citizens. Its sole distinguishing feature from any other organization is its accepted monopoly.

  • Paul Marks

    Nigel S:

    Number three on the Adam Smith list is mistaken (as both voluntary non profit associations and for profit companies can do these things – and a lot better than government can).

    On numbers one and two – that is the debate.

    Argument from authority is not quite as bad as is sometimes thought – but it depends on the authority.

    For example, if a specialist tells me that one material is better than another for a certain use I do not insist on lots of evidence (which I might not be able to understand anyway).

    But, no, I do not consider Adam Smith such an authority.

    I do not go as far as Murry Rothbard in my stress on the flaws in Smith’s work (even compared to other writers of the time and before), but he is not the super man that some people (including me once upon a time) think he is.