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from Dan Mahoney |
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A
common charge directed against anarcho-capitalists is that their system
will increase the power of private individuals and companies, thus leading
to, in effect, the State in a different guise.
This charge is not correct, but perhaps not surprising given the
extent to which government and business currently collaborate.
However, one wonders if certain schemes for private conflict
resolution, presented outside the context of prior property rights, might
not give the impression of a State-through-the-back-door. In
his recent response
to various critics of his private law system, Bob argues that in
contracting, one delegates final or ultimate authority over conflict
resolution to some arbitration agency, and that such an agency need not
appeal to any kind of prior law in making its decisions.
(Curiously, Bob recommends that such agencies follow “generally
shared principles” in arriving at judgments;
fine, but why? This
may make good business sense, but so what?).
This argument amounts to saying that such agencies are, in effect,
a law unto themselves, and simply by virtue of being arbitrators are not
bound by any rules (apart from profitability) but the ones that they make. While
it is true that an agency could act at its own discretion without
justifying its actions, it does not follow that it can consistently
do so. In fact, it is
difficult to imagine how such an agency could justify this position, let
alone entice people to voluntarily deal with it.
Unless such agencies are themselves bound by prior valid law that
all other people are, in what meaningful sense could Bob speak of
financial incentives against such agencies abusing their power?
If they ultimately set the rules, simply by basis of people coming
to them for dispute resolution, how can they be said to abuse any power? Bob
presumably argues that, by agreeing to submit to arbitration by some
agency, the parties entering a contract implicitly accede to that
agency’s decisions. This
point has validity (and is vaguely reminiscent of Kinsella’s estoppel
approach to rationalist ethics, whereby one’s prior actions determine
the legitimacy of retaliatory force), but the question still remains:
how far can the agency go in enforcing and compelling adherence to
its decisions? Can it, e.g.,
chop off my hands if I fail to fulfill an agreement to paint Bob’s
house? It is not sufficient to argue that such behavior by an
arbitration agency would be viewed as dimly by “consumers” as, say,
being served stale food at a restaurant, or that the bounds of the
agency’s retaliatory actions can themselves also be specified
contractually. In the first
case, by attributing such actions by the agency to bad business sense, the
concepts of aggressor and criminal vanish, at least in reference to the
agency itself. In the second
case, we have moved from an agency enforcing contracts between
parties, to the agency becoming one of the contracting parties
(that is, agreeing to abide by some contract limiting its behavior).
Thus, again the question is to be asked:
what is the basis of this contract?
(In fact, any agreement to submit to an arbitrator’s decisions
involves an implicit contract with the arbitrator.) Later,
Bob interprets my position to be that “property titles need to exist before”
arbitration agencies can function. I
don’t think that’s quite right. Rather,
I’d say that the notion of just ownership of property must exist (or be
established) before valid contracts regarding the use of such
property can come into being. The
point is that, inasmuch as “titles” simply represent the (real)
connection between owner and property (they need not be physical pieces of
paper), the notion of how one can become an owner of something must
first be resolved before notions like title transference (i.e.,
contracting) can be addressed. (I
owe this point regarding titles to Stephan Kinsella.) Bob
is certainly right that things, once considered invaluable, can suddenly
become the subject of disputes over ownership.
But how he then concludes that property rights are not objective
(“not a monolithic body … set in stone”) is not clear.
(I might also add that failure among free-market types to come to
agreement over what would constitute valid a priori law has no
bearing on whether it is possible to determine such law.)
A distinction must be made between rights to specific pieces of
property, and the notion of property rights in general for making the link
between an owner and these pieces of property.
It is precisely because conflicts can arise in many diverse
situations that some general framework is needed for identifying the
common features of these disputes for resolution. He
appeals to “expert judges” who have made “esteemed rulings,” but
he does not really say why they are experts, why their rulings are
esteemed, or indeed, why this matters at all.
In his example of ownership of the electromagnetic spectrum, he
would grant judges the authority to assign property rights to things that
did not (and could not) exist before the invention of radio.
But, if ownership can only be established within the jurisdiction
of these judges, then it would seem that they are in fact the
owners of the property in question, and by their good graces are merely
parceling it out to others. But,
why should they be granted such presumption of ownership? It
is not enough to appeal to “common sense” in resolving this question.
If something is unowned, then it must be possible for someone to
become the owner of it, and there must be some criteria for distinguishing
owned goods from unowned goods. I would not think that the opinion of judges is an adequate
criterion, for their opinion alone, no matter how respected, is ultimately
still subjective. Suppose
Bob and I come upon an object that has never before been discovered.
Who should be the owner? At
the moment of discovery, there is no objective link between the good and
either one of us, apart from the mere fact of discovery.
(It is fine if Bob wishes to make discovery the determinant of
ownership; however, then this would be the basis for law, and not
contracting per se.) Should
I smack him, without permission, over the head, and take the good for
myself? Elsewhere, Bob claims
that such behavior is “inherently” wrong (without really saying why,
though), so probably he would reject this option.
Should we submit our dispute to an arbitrator?
Presumably, while this dispute is being resolved, the good in
question will be held in trusteeship by the judge, preventing others from
using it. But why should it
be so withheld? While we are
bickering, someone else could come along and “mix” his labor with the
good. Could not this action
establish him as the valid owner? Why
should he be denied this opportunity simply because Bob and I first came
upon the good and cannot come to an agreement over its use?
Why should some third party be entitled to prevent others from
laying claim (in Lockean fashion) to the good by acting in the way I’ve
described? I
think these questions need to be resolved before one can grant authority
to judges to become de facto owners of goods in dispute. None of this is to deny that judges can play an important
role in conflict mediation. However,
they can only do so by operating within a framework of valid
property rights, and attempting to ascertain which party in a conflict is
in fact the rightful owner of the good in conflict.
They cannot establish property rights independent of a prior
framework, for in so doing they would essentially be laying claim to the
good themselves, and this claim is precisely what must be settled. Finally,
when Bob speaks of the “free market” providing law much like it
provides cars and health care, the immediate response is, “free” in
what sense? The market presupposes
the ownership of property, and the market is simply an institutionalized
framework for exchanging justly owned property.
Unless one establishes the rules governing just (as distinct from
unjust) exchange, it is meaningless to speak of the “free market.”
Law cannot be determined by the market, because one needs law to
distinguish market exchanges from theft.
This is what the notion of “accountability” on the market
means: people freely
withholding or providing their property.
This freedom must exist or be recognized before one can speak of a
market. (In reference to his
analogy with abolishing public schooling, it is immaterial whether
“service” could be better provided on the free market;
what matters is that the provision of education by the State
involves theft.) To
repeat: theft or murder can
occur either with or without two parties contracting;
these concepts refer to violation of property rights, not
the breaking of some contract. If
Bob were to argue that theft is wrong because it involves the
absence of a contract, then he still must establish why this is the
case. Why are contracts sufficient to establish ownership?
Why could not a prospective thief view my property as unowned
goods, on the basis that no contract exists between the two us delineating
the use of that property? Plainly,
there must be some objective link between owner and property, and mere
agreement cannot establish this link.
Rather, valid agreements can only take place within a network of
such links. It
is without question highly important to provide examples of how a
stateless society would function, and I have no real problem with Bob’s
conception of insurers and arbitrators providing judicial and defense
services in such a society. (Although
I think he should grant more importance to the role private, self-defense
would play.) However, I do
think one must go beyond that. Unless others can be convinced of the inherently criminal
nature of the State, then there remains no compelling reason for replacing
the current system with a private one, no matter how feasible. Personally, I never had much problem believing law could be
provided privately, but I never really considered it an important point
until I became aware of rights-based approaches to anarcho-capitalism.
And, many people I have come across do tend to hold an idealistic
(if not mystical or religious) view of the State, and for them questions
of function are not important. There
is only one way to view the State: as the biggest criminal organization around.
But to establish this, one needs to make a case for property
rights, not contracting. Rothbard, following de la Boettie, pointed out that all States, involving as they do a minority parasitizing off a majority, ultimately depend on their existence being viewed as legitimate by the governed. Once they lose this presumption of legitimacy, they will collapse, be they a democracy or dictatorship. In an anarcho-capitalist society, the institutions that will arise to mediate conflicts must also be viewed as legitimate if they are to function. I would contend that they can only be viewed as such if they are considered to be operating within a context of objective, valid property rights. It is the task of anarcho-capitalists to describe not only the technical functioning of such institutions, but also to explain the ethical basis upon which they must function, and why the State by its very nature is contrary to that basis. September 9, 2001
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