Saturday, June 8, 2013

Rothbard on Private Protection Agencies and Justice in his Libertarian World

The state of affairs Rothbard imagines is described here:
“Let us, then, examine in a little more detail what a free-market defense system might look like. It is, we must realize, impossible to blueprint the exact institutional conditions of any market in advance, just as it would have been impossible 50 years ago to predict the exact structure of the television industry today. However, we can postulate some of the workings of a freely competitive, marketable system of police and judicial services. Most likely, such services would be sold on an advance subscription basis, with premiums paid regularly and services to be supplied on call. Many competitors would undoubtedly arise, each attempting, by earning a reputation for efficiency and probity, to win a consumer market for its services. Of course, it is possible that in some areas a single agency would outcompete all others, but this does not seem likely when we realize that there is no territorial monopoly and that efficient firms would be able to open branches in other geographical areas. It seems likely, also, that supplies of police and judicial service would be provided by insurance companies, because it would be to their direct advantage to reduce the amount of crime as much as possible.

One common objection to the feasibility of marketable protection (its desirability is not the problem here) runs as follows: Suppose that Jones subscribes to Defense Agency X and Smith subscribes to Defense Agency Y. (We will assume for convenience that the defense agency includes a police force and a court or courts, although in practice these two functions might well be performed by separate firms. ) Smith alleges that he has been assaulted, or robbed, by Jones; Jones denies the charge. How, then, is justice to be dispensed?

Clearly, Smith will file charges against Jones and institute suit or trial proceedings in the Y court system. Jones is invited to defend himself against the charges, although there can be no subpoena power, since any sort of force used against a man not yet convicted of a crime is itself an invasive and criminal act that could not be consonant with the free society we have been postulating. If Jones is declared innocent, or if he is declared guilty and consents to the finding, then there if no problem on this level, and the Y courts then institute suitable measures of punishment. But what if Jones challenges the finding? In that case, he can either take the case to his X court system, or take it directly to a privately competitive Appeals Court of a type that will undoubtedly spring up in abundance on the market to fill the great need for such tribunals. Probably there will be just a few Appeals Court systems, far fewer than the number of primary courts, and each of the lower courts will boast to its customers about being members of those Appeals Court systems noted for their efficiency and probity. The Appeals Court decision can then be taken by the society as binding. Indeed, in the basic legal code of the free society, there probably would be enshrined some such clause as that the decision of any two courts will be considered binding, i.e., will be the point at which the court will be able to take action against the party adjudged guilty.

Every legal system needs some sort of socially-agreed-upon cutoff point, a point at which judicial procedure stops and punishment against the convicted criminal begins. But a single monopoly court of ultimate decision-making need not be imposed and of course cannot be in a free society; and a libertarian legal code might well have a two-court cutoff point, since there are always two contesting parties, the plaintiff and the defendant.” (Rothbard 2009: 1051–1053).
So here we have a world where there are multiple competing protection services. Some protection services might have an in-house police force and law courts, although in practice these two functions might well be performed by separate firms.

The hypothetical scenario of privately provided justice that Rothbard envisages faces a bizarre problem:
Jones is invited to defend himself against the charges, although there can be no subpoena power, since any sort of force used against a man not yet convicted of a crime is itself an invasive and criminal act that could not be consonant with the free society we have been postulating.”
In fact, there are two problems here.

Consider Rothbard’s defence of torture:
“ ... police may use such coercive methods provided that the suspect turns out to be guilty, and provided that the police are treated as themselves criminal if the suspect is not proven guilty. For, in that case, the rule of no force against non-criminals would still apply. Suppose, for example, that police beat and torture a suspected murderer to find information (not to wring a confession, since obviously a coerced confession could never be considered valid). If the suspect turns out to be guilty, then the police should be exonerated, for then they have only ladled out to the murderer a parcel of what he deserves in return; his rights had already been forfeited by more than that extent. But if the suspect is not convicted, then that means that the police have beaten and tortured an innocent man, and that they in turn must be put into the dock for criminal assault. In short, in all cases, police must be treated in precisely the same way as anyone else; in a libertarian world, every man has equal liberty, equal rights under the libertarian law. There can be no special immunities, special licenses to commit crime. That means that police, in a libertarian society, must take their chances like anyone else; if they commit an act of invasion against someone, that someone had better turn out to deserve it, otherwise they are the criminals.

As a corollary, police can never be allowed to commit an invasion that is worse than, or that is more than proportionate to, the crime under investigation. Thus, the police can never be allowed to beat and torture someone charged with petty theft, since the beating is far more proportionate a violation of a man’s rights than the theft, even if the man is indeed the thief.” (Rothbard 1998: 82–83).
But how can such torture of mere non-convicted suspects be consistent with Rothbard’s principle that “any sort of force used against a man not yet convicted of a crime is itself an invasive and criminal act that could not be consonant with the free society we have been postulating”? Apparently in the Rothbardian paradise a private law court cannot enforce or even issue a subpoena for a person against whom a suit has been brought or charge filed, but police can torture such a person! We have here a glaring, not to mention grotesque, contradiction.

The second problem is this. If Smith files charges against Jones with Defense Agency Y and their court system, but Jones simply refuses to appear or even respond to the charges, what can Defense Agency Y do to settle the dispute? The idea that a court can fairly and rightfully declare Jones innocent or guilty without Jones defending himself or responding to the charges is absurd (or perhaps trials in absentia will be a normal practice in Rothbard’s anarcho-capitalist world). Yet if Jones simply refuses to recognise the law court and accept its authority, the law court cannot issue a subpoena or force Jones to appear, since “any sort of force used against a man not yet convicted of a crime is itself an invasive and criminal act that could not be consonant with the free society we have been postulating”! We have a toothless and probably useless justice system.

Suppose the private law court finds Jones guilty in his absence and issues some punishment. But then Jones goes to his own law court and manages to get a ruling of “not guilty.” At the point, it is not clear that anything can be done. For which court’s ruling should be followed?

According to Rothbard, in the “basic legal code of the free society, there probably would be enshrined some such clause as that the decision of any two courts will be considered binding, i.e., will be the point at which the court will be able to take action against the party adjudged guilty.” In this case, if there are two court rulings of “guilty” against Jones, then supposedly force can now be used. But it will presumably only be attempted by the court system or private protection agencies that Smith hires. No other court system or private protection agencies will bother bringing Jones to justice, for they have not been paid to do so.

Furthermore, suppose that Jones is a very wealthy and powerful man with his own private security. He could use force and violence to fend off any attempt to bring him to justice with private security personnel. What is to be done? Already this is a world that could collapse into violence and anarchy as those sufficiently rich enough simply refused to submit to specific private law courts or private protections agencies that ruled against them. It is more likely to be a world where the very rich and powerful are simply able to evade justice and those not wealthy enough will not be able to obtain justice.

On the latter point, we must also remember that in Rothbard’s anarcho-capitalist system there is no longer any criminal law in the current sense. All crimes, even the most heinous, would be mere matters for civil or private law, in which plaintiffs sue, or bring action for redress, under tort or contract law.

Any person who commits a crime under current criminal law would become a mere tortfeasor under Rothbard’s anarcho-capitalist justice system, and there would then be no obligation on society at large or any institution to arrest, try, or punish any criminal unless a plaintiff is willing and able to pay for a private law suit or tort (Rothbard 2011: 417). Needless to say, if any prospective plaintiff is too poor to afford legal fees, then no justice can be obtained. Even the worst crimes imaginable – murder, assault with grievous bodily harm, rape and so on – will not be punished if victims lack the money to bring a suit under private law. Hence the Rothbardian “justice” system would not even deserve that title. It would be a grotesque parody of justice.

Even more fundamentally, if you cannot even afford the cost of protection services, then you cannot even obtain basic police protection or basic protection under whatever private laws exist.

And what are we to make of this?:
“Of course, it is possible that in some areas a single agency would outcompete all others, but this does not seem likely when we realize that there is no territorial monopoly and that efficient firms would be able to open branches in other geographical areas.” (Rothbard 2009: 1052).
If there is a protection agency in some areas that outcompetes “all others” it is not difficult to see how such an agency would obtain a monopoly or near monopoly on “protection services” in that area, driving its competitors out of business. The barriers to entry in that area might make it highly unlikely that “efficient firms would be able to open branches” there. That can only mean that in certain areas there would have a de facto government, the very thing that Rothbardians say is the ultimate evil. The only difference is that, if cannot or do not want to pay the monopoly protection agency, you get no basic police or justice services, which means we would have a strange de facto government only interested in those rich enough to afford its services.

In fact, Rothbard’s theory of monopoly is a strange one. Rothbard thinks that true “monopoly” is really only a right of exclusive production granted by the state to some entity (Rothbard 2009: 670). But this effectively means that if, in an anarcho-capitalist system, exclusive production of private protection emerged by one business, we would have a de facto government, but, strictly speaking, according to Rothbard, it isn’t really an objectionable monopoly because it emerged on a free market. Therefore even Rothbardian libertarians could not really object to such a de facto government emerging in their utopian world.


BIBLIOGRAPHY

Rothbard, M. N. 1998. The Ethics of Liberty, New York University Press. New York, N.Y. and London.

Rothbard, M. N. 2009. Man, Economy, and State with Power and Market. The Scholar’s Edition (2nd edn.). Mises Institute, Auburn, Ala.

Rothbard, M. N. 2011. Economic Controversies. Ludwig von Mises Institute, Auburn, Ala.

35 comments:

  1. You’ve switched the argument from “coercion is a defining characteristic of anarchism and statism” to “I predict a single firm will emerge under anarchism and turn into government”.

    David Friedman and Tyler Cohen had an exchange on the economics of this scenario (see Friedman’s “Law as a Private Good” on his website).

    However, the point is that libertarian anarchism, by definition, is non coercive. If a firm starts acting coercively by preventing customers from switching firms, then you simply have a reemergence of coercive government.

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    1. I have not changed the argument at all. Force would ultimately remain the basis of Rothbardtopia. Even Rothbard says so:

      "Every legal system needs some sort of socially-agreed-upon cutoff point, a point at which judicial procedure stops and punishment against the convicted criminal begins."

      Rothbard was just too stupid to notice that without subpoena power against people against whom a suit has been brought a private court has little ability to do anything about it.

      " If a firm starts acting coercively by preventing customers from switching firms, then you simply have a reemergence of coercive government. "

      It does not need to act "coercively" to become a monopoly and de facto government. You haven't even understood the argument.

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  2. As Rothbard said, speculating about the forms of future businesses is basically futile (as I always point out regarding “free banking” under true laissez faire). That’s why I tend to ignore Rothbard’s speculations on the form of future businesses, which, of course, are not binding on me or anyone else.

    The fact is that libertarianism is not and does not pretend to be a complete moral, or aesthetic theory; it is only a POLITICAL theory, that is, the important subset of moral theory that deals with the proper role of violence in social life. Political theory deals with what is proper or improper for government to do, and government is distinguished from every other group in society as being the institution of organized violence. Libertarianism holds that the only proper role of violence is to defend person and property against violence, that any use of violence that goes beyond such just defense is itself aggressive, unjust, and criminal. Libertarianism, therefore, is a theory which states that everyone should be free of violent invasion, should he free to do as he sees fit except invade the person or property of another. What a person does with his or her life is vital and important, but is simply irrelevant to libertarianism.

    http://www.lewrockwell.com/rothbard/rothbard12.html

    I would predict that various subdivisions would have their own police “agency” keeping in mind that with the roads being private, the inhabitants could exclude whomever they want. I see no reason why people could not and would not provide free services to the poor as that is done now. I see no reason why Township X and Township Y could not/would not have an extradition agreement and/or why each community would not want a form of contractual subpoena power so that people living or entering an area could decide to submit to such a subpoena as the case may be.

    Everything remains the same in a Rothbardian world except that you may not INITIATE force or violence. However, absent a contractual agreement, you can ostracize to your heart’s content. If Township Y refuses an extradition agreement, people in Township X can refuse to trade with them or allow Y citizens into Township X. That would make perfect sense because dealing with people from Y could be dangerous in that you would not have a forum for peaceful and pre-established resolution of disputes with them.

    This isn’t that complicated.

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    1. Conrad: Rob Roddis,i hope you aware that even Robert Nozick thought that Rothbard was an extremist.He found Rothbard "Simple in thinking and a immature philosopher"

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  3. "Rothbard was just too stupid to notice that without subpoena power against people against whom a suit has been brought a private court has little ability to do anything about it."

    Rothbards says if the defendant chooses not to defend himself compulsion may be used against him after in absentia conviction. How is this “little ability to do anything about it”?

    "It does not need to act 'coercively' to become a monopoly and de facto government."

    It becomes a de facto government if it acts coercively in regards to taxation.


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    1. (1) "Rothbards says if the defendant chooses not to defend himself compulsion may be used against him after in absentia conviction. "

      No, Eric Charles, Rothbard says that after a second court conviction force may be used:

      "the decision of any two courts will be considered binding, i.e., will be the point at which the court will be able to take action against the party adjudged guilty."

      But even then a very wealthy and powerful man with his own private security might be able to just avoid any such private court attempts to force him to pay damages or punish him.

      (2) and I take it you are just fine with in absentia trials in your Rothbardtopia?

      I am sure you nobody will have vehement objections to that and to the abuses it might lead to.

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    2. "No, Eric Charles, Rothbard says that after a second court conviction force may be used:"

      There are several scenerios depending on whether the defendant already has a contract with a firm or not. In Ethics of Liberty, Rothbard describes conviction against someone who has no representation. Compulsion can be used “after his final conviction”. How the appeals process works is irrelevant to how legal institutions are funded in anarchism and statism and whether it is coercive or not.

      "But even then a very wealthy and powerful man with his own private security might be able to just avoid any such private court attempts to force him to pay damages or punish him.
      I am sure you nobody will have vehement objections to that and to the abuses it might lead to."

      Abuses occur under statism obviously so that is not a unique argument against anarchism.

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  4. Proof that libertarianism is probably actually an authoritarian system. Not at all surprising. Rothbard often comes across as a bitter control-freak.

    Check out this six-part faux interview series (previous parts linked at the top). I thought that it was very good.

    http://www.nakedcapitalism.com/2011/12/journey-into-a-libertarian-future-part-v-%E2%80%93-dark-realities.html

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  5. Let me ask you this.

    Imagine a geographical area where all property is private and 100 protection firms exist. Individuals can choose what firms to subscribe to. They may also freely change firms similar to auto insurance let’s say. Firms have prearranged agreements to settle disputes between customers and force will be used against criminals if convicted (doesn’t matter if a customer disagrees with the decision since the contract was clear that they have to abide by the decision between agencies). So disputes will be decided not based on where people live but on what firms individuals have contracted with.

    Compare this situation to government where no such option exists due to compulsory taxation and no right to opt out.

    Are you saying that the funding of both systems is the same in regards to coercion (assume an efficient anarchist system)?


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    1. Yeah, we've had this system. It's called "feudalism". Replace "protection firms" with "Lords" and you have feudalism and any number of other extremely primitive (and violent) forms of social organisation. Haha... the anarchist-libertarians aren't capitalists at all. It's just a mask -- worn by middle-class kids who grew up in gated communities. It would be funny if it wasn't so worrying.

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    2. (1) in your Rothbardtopia, yes, subscription to a protection firm in principle is voluntary.

      But, as I have said above, this Rothbardtopia is a naive view of justice and law and order. It is probably going to be a system where the rich and powerful evade justice and those not wealthy enough will not be able to obtain justice, since some people will not be able to afford the cost of protection services or private law courts.

      Just as in highly privatized health care system, inability to pay simply means people don't get health care, so justice will be matter of who has more dollars.

      (2) in a government system, yes, coercion is the basis of taxation, but for most people who do not accept Rothbard's natural rights ethics it is morally justified coercion since it results in a better system, one where

      (1) access to protection under the law isn't just a matter of money;

      (2) better enforcement of the law results, since people are compelled to answer charges and subpoenas in courts of law, and cannot just ignore rulings if they are powerful enough, as seems quite likely in a Rothbardian system;

      (2) where there isn't the waste of resources in multiple courts and multiple protection agencies in the libertarian system.

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    3. Philip Pilkington@June 8, 2013 at 10:41 AM

      Yes, it absolutely resembles feudalism -- a system of private contractual arrangements where defence and justice are contacted out.

      Lords were great private property holders, leasing out land to others, either vassals or peasants. You contract with a lord to obtain his protection as his retainer or knight (i.e., you become his vassal), and in return you get a fief. It's a private contractual arrangement.

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    4. I would say it goes beyond 'resembles' feudalism. Feudalism is the natural end of libertarianism.

      Let's suppose all property is private, including (most importantly) all land is private. (How someone came to own land without the instigation of force somewhere along the line is a problem we will leave for another time.) If you do not own land, you must ask someone permission for everything you do, wherever you go. Welcome to Freedomville. If you are able to lease space from a land owner, you can only choose the protection firm that is allowed on that property, probably the land owners own company. Imagine trying to subpoena your landlord with his own protection company. Don't like it? You can move to another person's property who will treat you exactly the same way. How is this any different than the Middle Ages? Or the colonization of Latin America? ...all land owners, no governments. One can complain, "You're not supposed to use force!" To which the response will be, "Yeah? So sue me."

      This piece is an example of the utter madness of fanaticism. This is a truly sick man.

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    5. Is Konczal lifting ideas from your comments section?

      http://www.nextnewdeal.net/rortybomb/we-already-tried-libertarianism-it-was-called-feudalism

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  6. "(1) in your Rothbardtopia, yes, subscription to a protection firm in principle is voluntary."

    Thanks for acknowledging.

    "But, as I have said above, this Rothbardtopia is a naive view of justice and law and order. It is probably going to be a system where the rich and powerful evade justice and those not wealthy enough will not be able to obtain justice, since some people will not be able to afford the cost of protection services or private law courts."

    I fully recognize this criticism. David Friedman has an interesting chapter about the rich under anarchism in The Machinery of Government. Maybe address that in future post?

    But this is a different argument than whether anarchism is fundamentally coercive or not. I think one can maintain that anarchism isn’t going to happen anytime soon just as slavery in its prime wasn’t going away anytime soon. But it was still coercive and thankfully ended.

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  7. The only way for anarcho-capitalism to conceivably work is for a hegemonic entity to emerge. At best, the corporation would be a benevolent dictatorship/monarchy. At worst it could degenerate into an authoritarian government.

    This is why minarchist democracy is far better than anarchy. Kantian absolutist idiots like Rothbard and Major Freedom don't understand that sometimes in the real world you have to accept smaller violations of liberty to avoid much bigger ones.

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  8. It is not just ridiculous but outlandish that anybody would advocate this Rothbardtopia. I suspect that even Mises would have been embarrassed by Rothbard's tripe. It doesn't seem worthy of engagement.

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  9. Eric,

    "Compare this situation to government where no such option exists due to compulsory taxation and no right to opt out".

    actually you do have a right to opt out. It's called leaving the country. If you're a member of a club but you don't like paying the club fees, you can opt out by leaving the club. You can't, however, choose to remain a member of the club and not pay the fees.

    As a member of the club, however, you do have the right to try and get the rules changed.

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  10. y- I have a choice to join a club and can sign a contract. Someone else made that decision for us in Philadelphia over two hundred years ago and is still binding.

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    1. And yet you can still leave your country and live somewhere else!

      This is analogous to parents making a decision for their child on a private health care provider/insurer. If you don't like it when you're older and free to make your own decisions, you can change.

      If you do not like the country you were born into, live somewhere else, like the Cayman Islands. Build a libertarian community there. Put your money where your mouth is.

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    2. Exactly LK, these kinds but "I didn't personally agree to every aspect of society's rules" therefore you being mean tyrant is stupid teenage wining about now oppressive their parents are.

      Most people of grow out it and learn to adapt and give their "just world" cognitive bias to some degree but libertarianism isn't an ideology as much as a psychological state of perpetual adolescence like Paul Krugmen has already noted.

      We arrival of the Nation-State was the point where civilization collectively reached Fidelity Stage of Eriksonian development.

      I believe we are reaching the end of "Love: Intimacy vs. Isolation" stage as the globalized world is creating economic productive interdepence and so the question now is "Care: Generativity vs. Stagnation" i.e. growth versus sustainability.

      Mature politics is discussion that matters of social and governmental provision for the next generations...i.g. do we need more supervison via our technology or over our technology?




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  11. "And yet you can still leave your country and live somewhere else!"

    The point is one of legitimacy, not options that exist under an illegitimate system.

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    1. For you, it is ultimately an issue of legitimacy.

      But your opponents do not regard government as illegitimate. They reject your moral theory (Rothbardian natural rights or Hoppe's argumentation ethics, I assume), and hold different ethical theories in which they believe (rightly in my view) they can ethically justify government and taxation as morally right, despite the coercion involved. At that point the whole debate becomes one for philosophy of ethics.

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    2. Right, so suggestions to move are irrelevant concerning the argument as to whether a system is legitimate or not.

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    3. "so suggestions to move are irrelevant concerning the argument as to whether a system is legitimate or not. "

      Such suggestions are indeed irrelevant to the specific moral question whether government/tax is legitimate or not.

      But they are not irrelevant to the question whether you have a choice in staying or leaving the country you live in.

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  12. "I have a choice to join a club and can sign a contract. Someone else made that decision for us in Philadelphia over two hundred years ago and is still binding".

    Actually no, your parents made that decision for you when they chose to make you a US citizen.

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  13. People can commit suicide as well but I don't see how this contributes anything constructive to the conversation.

    Btw, are some of my posts being rejected? It seems one or two never showed up unless there is a delay.

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  14. y- exactly. Our choices as well as our parents have already been made for us by others hundreds of years ago.

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  15. "y- exactly. Our choices as well as our parents have already been made for us by others hundreds of years ago".

    What are you talking about? Your parents chose to make you a US citizen. As a US citizen you are required to abide by US law. However you also have two further legal options: 1. Try to change the law. 2: Leave the US.

    The overwhelming majority of other US citizens don't want the law to be changed to suit your extreme far-right ideology. Every few years they choose not to turn the US into your nightmarish "libertarian" dystopia. Yet you still choose to live in the US.

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  16. Would North Korea be a legitimate government if it allowed its citizens to leave? The question is what criteria should be used to determine whether governance is legitimate or not, and just as important, when legitimacy is lost. For many libertarians including myself, the legitimacy guidepost is consensual delegation of rights. For others, rights are secondary and take a back seat to things like fairness and equality. The Constitution binds us all and you nor your parents had a choice in the matter. Do yourself a favor and try some thought experiments. Say you lived a few hundred years ago and settled in an unoccupied territory that you farmed and made your own. If me and some friends show up and demanded fees for protection, would you regard our behavior as legitimate? I’ll presume to would say no. What then, is a proper way to set up governing institutions that settle disputes between you and your future neighbors? What say do you have in the matter? I assume your answer isn’t always whatever the status quo is determines legitimacy?

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    1. "Say you lived a few hundred years ago and settled in an unoccupied territory that you farmed and made your own. If me and some friends show up and demanded fees for protection, would you regard our behavior as legitimate?"

      In that example, no, but it is an irrelevant example and certainly not indicative of real world examples of government.

      The truth is more likely that you settled somewhere a few hundred years ago in previously OCCUPIED territory taken by force by Europeans from other people. You were only there because colonial governments protected you and you could call on them if needed. The colonial government provided the basic infrastructure that got you there in the first place, and that you use to export your goods to other communities.

      Eventually representatives of government may come to the area and institute a new local government, which by democratic processes, decides to levy taxes.

      THAT is behavior is legitimate.

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  18. "Would North Korea be a legitimate government if it allowed its citizens to leave?"

    If North Korea allowed its people to elect their own government and to come and go as they please, then it wouldn't be anything like what it is today. So your question should really be "would a completely different, completely hypothetical North Korean government be legitimate"? Which is a silly question.

    "For many libertarians including myself, the legitimacy guidepost is consensual delegation of rights."

    You guys have such nice-sounding ways of describing your truly repulsive extreme far-right ideology.

    "The Constitution binds us all and you nor your parents had a choice in the matter".

    The Constitution can be changed. You have a vote, your parents had a vote. The reason your nightmarish "libertarian" dystopia isn't a reality is not because of the Constitution. It's because the overwhelming majority of people have absolutely no desire to live in such a horrible place.

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  19. No need for historical accuracy to make the point. One could imagine space colonization being commonplace one day. So in my previous example, consent is irrelevant since me and my friends have more votes and you and may rightfully collect fees from you and your family.

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  20. "y- You guys have such nice-sounding ways of describing your truly repulsive extreme far-right ideology."

    So much for a constructive discussion.

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