Sunday, June 9, 2013

Rothbardian Private Law is a License for the Rich to Commit Crimes

That follows from Rothbard’s legal ideas:
“The only civil or criminal system consonant with libertarian legal principles is to have judges (and/or juries and arbitrators) pursuing charges of torts by plaintiffs made against defendants.

It should be underlined that in libertarian legal theory, only the victim (or his heirs and assigns) can legitimately press suit against alleged transgressors against his person or property. District attorneys or other government officials should not be allowed to press charges against the wishes of the victim, in the name of ‘crimes’ against such dubious or nonexistent entities as ‘society’ or the ‘state.’ If, for example, the victim of an assault or theft is a pacifist and refuses to press charges against the criminal, no one else should have the right to do so against his wishes. For just as a creditor has the right to ‘forgive’ an unpaid debt voluntarily, so a victim, whether on pacifist grounds or because the criminal has bought his way out of a suit or any other reason, has the right to ‘forgive’ the crime so that the crime is thereby annulled.” (Rothbard 2011: 407).
The crucial point is that anarcho-capitalism abolishes the state and all state-based criminal law. There would no longer be any criminal laws.

All crimes – even the worst possible – would simply become offences only punishable under a system of private tort law. In “common law” nations, a tort is a wrongful or harmful act against a person other than breach of contract (in “civil law” nations torts are generally called “delicts”). Under tort law, the victim can obtain redress or justice only if they privately bring a law suit or legal action against the perpetrator or aggressor.

It is perfectly obvious that if a victim cannot afford legal services and the fees to bring a private law suit under tort law, then no trials or punishments of many criminals will ever happen.

More importantly, the principle of refusing to investigate or punish heinous crimes – crimes so serious that we deem them against the interests of all citizens – when a criminal can simply buy off his victim strongly suggests that the rich and super-rich in Rothbard’s world will simply have a licence to commit crimes and bribe victims to stop prosecution.

So, as I noted in the last post, Rothbardian “justice” would be a mockery of that term, a travesty of any effective and impartial legal system.

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


  1. It would be good if you wrote a critique about polycentric law and the idea of having a stateless society in general and a primer on the ideas of having positive and negative rights.

  2. Yeah, at this point, you should switch your focus from Rothbard to Friedman and Benson who have fleshed out more completely how a stateless society would look. They both look at historical examples where law was completely civil and poor victims had transferable claims, i.e, no need to "afford legal services".

    Currently, special interests enrich themselves by manipulating the political system and the poor get shafted by having no say. In theory, the poor get equal protection today but one would have to be pretty naive to think the justice system is fair.

    Friedman says "Equality aside, spending is a much superior—paradoxically, a much more egalitarian—way of allocating resources. This is because a dollar, once spent, cannot be spent again, leaving you less to spend on something else. Your vote can be used over and over… Since voting is much more of an all-or-nothing thing than spending, such inequalities as do exist have much greater effects. This may explain why in our society, where the poor are also politically weak, they do far worse on things provided by the government, such as schooling and police protection, than on those sold privately, such as food and clothes."

    1. " They both look at historical examples where law was completely civil and poor victims had transferable claims, i.e, no need to "afford legal services".

      What historical examples?

  3. I gather that the system of law described by Rothbard will give a rise to blood feuds and murders of entire families since there could be no public persecution...

    1. Sounds like what happens in the world's backwards places today, like, say, Chechnya.

  4. How do you square activation of this apparatus being the alleged victim's prerogative with the notion that the customer is always right? Public provision of justice is driven as much by the idea that conflict of interest is a real problem in natural law as it is about any economistic understanding of public goods and their efficient delivery. The First Theorem of libertarianism seems to be that there is nothing outside economics. How cynical.

  5. Here's a piece by Friedman.

    1. In other words, Friedman has to invoke a long-obsolete system, under primitive conditions, in an obscure part of the world. Today's Icelanders live under a European-style social democracy, so what does that say about the practicality and sustainability of their ancestors' system?

    2. Points about medieval Iceland:

      (1) Friedman admits that public crimes existed in this society. It is not an example of a pure an-cap system. Furthermore, as far as I can see, the actual courts seem to have set up in a rather democratic manner as quasi-"public service" institutions, rather than as fee-taking private businesses.

      (2) All the evidence suggests that these medieval societies were extremely violent by modern standards.

      At the end, Friedman actually tries to base a calculation of per capita homicide rates in medieval Iceland on mere literary epic fictions, the "Sturlung sagas". Do I really need to go into the reasons why this is an incredibly naive and unconvincing method of calculating real world historical homicide rates?

      (3) As for wergeld -- the notion that killing only results in a fine -- this means the rich can literally get away with murder.

      And, lo and behold!, we read from Friedman himself that this is what actually happened as the system degenerated into unequal power and wealth and collapsed:

      "A second objection is that the rich (or powerful) could commit crimes with impunity, since nobody would be able to enforce judgment against them. Where power is sufficiently concentrated this might be true; this was one of the problems which led to the eventual breakdown of the Icelandic legal system in the thirteenth century. But so long as power was reasonably dispersed, as it seems to have been for the first two centuries after the system was established, this was a less serious problem.

      So the system led to "eventual breakdown"!! I am sure that should inspire great confidence.

    3. "It is not an example of a pure an-cap system."

      Friedman has never asserted it was, nor has anyone else. But it was a system without an executive arm of government where the law was enforced privately so provides a useful social experiment.

      I am also thoroughly unimpressed by Mark Plus' dismissal of the society as "primitive." Ignoring the fact that it was perhaps the most educated society in Europe at the time, the laws of economics do not change from place to place or throughout history. Comments about how Iceland was "primitive" or "obscure" is a denial mechanism, not an argument.

      Examples of similar polycentric systems can be found in Medieval Ireland (which lasted for about 1000 years—~650 AD to ~1650 AD), the American Old West and Early Pennsylvania. Not to mention that all medieval common law systems (e.g. English Common Law) involved polycentric rights-enforcement mechanisms. Are these long-standing societies to be swept under the rug as mere flukes?

      "All the evidence suggests that these medieval societies were extremely violent by modern standards."

      There are a multitude of factors that influence the level of violence. Common Law legal systems produce more efficient legal rules than those produced by legislature (see Richard Posner's work on that). If we take England as an example, at no point was legislation ever passed making theft or murder illegal—these laws emerged under English Common Law via polycentric mechanisms.

      But suppose we ask if such polycentric systems are better at enforcing such laws against murder. The American Old West, for example, had lower homicide rates than the statist East. In fact it had lower homicide rates than the cities of today. W. Eugene Hollon in Frontier Violence: Another Look calculated a homicide rate of approximately 1 in 100,000 per year (1870-1885) for the towns Abilene, Ellsworth, Wichita, Dodge City, and Caldwell. Compare this with the 2007 crime statistics for DC (31 per 100k), New York (6 per 100k), Baltimore (45 per 100k) and Newark (37 per 100k).

      "Do I really need to go into the reasons why this is an incredibly naive and unconvincing method of calculating real world historical homicide rates?"

      Given that the calculation is based on sagas, if the level of violence is portrayed inaccurately, if anything it will overestimate the level of violence.

      "As for wergeld -- the notion that killing only results in a fine -- this means the rich can literally get away with murder."

      That's based on the assumption that the fines were sufficiently low to make it easy for a wealthy person to commit murder. It's also based on the assumption that rulings on fines wouldn't be weighted by wealth—a highly expectable Schelling point.

      "So the system led to "eventual breakdown"!! I am sure that should inspire great confidence."

      This further demonstrates your unmitigated ignorance of the period in question. Norse settlement of Iceland started about 870. The legal instituions were established in 930. The civil conflict that led to the final collapse began about 1200. The system was stable for more than 300 years. If you believe some endogenous factor caused the breakdown, you'd have to explain why it took so long to take effect and why it took effect so suddenly.

      Fortunately people who have actually studied the period in question (rather than engaging in armchair internet speculation) have provided explanations. Roderick T. Long points to Nordic interference in the functioning of the legal system. The forced instituting of compulsory Christian tithes meant that Chieftains who owned churchsteads lost their market-based accountability, and "storgodhar" families ended up monopolising the legal market.

  6. No one is making the argument that libertarian anarchism has existed or will ever exist in pure form. Consent based governance is a normative idea in the same sense democracy was a normative theory prior to its existence. That it hasn’t been tried or won’t work isn’t a convincing argument for those who support libertarian anarchism.

    Statism has resulted in hundreds of millions killed by government in the 20th century , not exactly confidence inspiring.

    1. Raw numbers of deaths are potentially misleading. The serious and valid way to properly compare how violent one society is compared to another is by per capita homicide rates.

      As a matter of fact, in terms of per capita death rates by violence, the rise of the modern state has seen a spectacular fall in violence:

      The evidence shows that stateless societies, by and large, are horrendously violent.

      In terms of per capita deaths, the most violent outbreaks of the 20th century may not have been the most violent in history:

  7. Not really surprising given that statism includes western democracies and I'd like to believe human beings have become more civilized as time goes on.

    1. So are you saying Western democratic states are a civilising influence?

  8. "Statism has resulted in hundreds of millions killed by government in the 20th century"

    What a truly idiotic statement. As if there's this single homogenous thing called "statism" in opposition to your ridiculous and infantile extreme far-right "libertarian" religion.

    "Consent based governance is a normative idea"

    You want to strip people of all their rights as citizens. Stop the lying sanctimonious garbage, please.

    1. Y. I agree!This is one of the most stupid statements i ever read from the bunch moronic rightwing hippies called libertarians."Statism" a word they use for all sort of state rule from ancient Egypt to modern advanced democracy! Oh my lord why do we have to waste time on those imbeciles??Sadly those lunatics have influence over modern US and European politics in high degree so i am afraid we need to continue to meet their madness.

  9. y- what is the deal with your tantrum posts?

  10. Yes- I think the evidence is clear.

    However, that has no bearing on whether I think anarcho-capitalism is the proper political system.

  11. If I approached the issue from simply as an economist or historian, I'd would be much more on the fence but the threshold question will always come down to rights for me. Also, I don't view democratic state coercion on par with a dictatorship so I envision a slow and peaceful transition to full privatization as people become accustomed to non-coercive governance. The NSA surveillance drama occurring now is one step toward state illegitimacy but it’s going to take a long time before taxation is viewed as unlawful behavior. Friedman has some more thoughts on transition here:

  12. "so I envision a slow and peaceful transition to full privatization"

    You are delusional. No one wants your nightmarish so-called "libertarian" dystopia. Your cult is a miniscule extremist fringe movement.

    Why do you believe the majority wants what you have to offer when they have consistenly and repeatedly rejected your ideology?

    "it’s going to take a long time before taxation is viewed as unlawful behavior"

    Keep dreaming bozo.

  13. "non-coercive governance"

    Your extreme far-right "libertarianism" is NOT 'non-coercive'. Stop the lying sanctimonious garbage.

    1. It is probably just better to "agree to disagree here", guys!